WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court File and Parties

Court File No.: Brampton – 14-41310 Date: 2015-05-28

Ontario Court of Justice (Central West Region)

Between:

Her Majesty the Queen

• and - C.T.

Counsel:

• C. Presswood, Counsel for the Crown
• H. Cohen and S. Youssefi, Counsel for C.T.

Heard: February 4-5, 2015

Ruling on Voluntariness of Statement

Schreck J.:

I. Introduction

[1] In April 2014, a nine-year-old disclosed to her teacher that when she was three or four years old, her care provider's son, C.T., had exposed his penis to her and forced her to touch it. This was the first time the child had disclosed this to anybody. The teacher relayed this information to the Children's Aid Society, who in turn contacted the police. An investigation was commenced and on the afternoon of April 15, 2014, Constable Jeff Duffield of the Peel Regional Police Special Victims Unit interviewed the child and her mother. Within hours, C.T. was arrested. Following his arrest, he made a fairly lengthy statement, some of which was inculpatory. The Crown sought to rely on that statement at trial and accordingly attempted to prove on a voir dire that it was made voluntarily. At the conclusion of the voir dire, I advised counsel that a portion of the statement was admissible but the balance was to be excluded and indicated that I would provide reasons for my ruling at a later date. Following are those reasons.

II. Evidence

A. The Arrest

[2] At 5:05 p.m. on April 15, 2014, Constable Duffield telephoned C.T. at a number that had been provided by the child's mother. He advised C.T. of the nature of the investigation he was conducting and requested that he attend the police division in order to be arrested for the offences of invitation to sexual touching and committing an indecent act. C.T. asked for further information, but Constable Duffield declined to speak with him further on the telephone. C.T. agreed to attend the police division as requested.

[3] At 6:24 p.m., Constable Duffield met C.T. at the division and at 6:38 p.m. placed him under arrest. There is no issue that C.T. was properly advised of his right to retain and instruct counsel and that he waived his rights in this regard. No Charter violation has been alleged.

B. The Statement

[4] After he was booked, C.T. was placed into an interview room. The interview, which was conducted by Constable Duffield, commenced at 6:56 p.m. and concluded at 9:45 p.m. It was videotaped and the video was played during the voir dire. As well, a transcript, which counsel agree is accurate, was produced.

[5] At the outset of the interview, C.T. was again advised of his right to counsel and again indicated that he did not wish to speak to a lawyer. Constable Duffield cautioned C.T. and confirmed that no other police officer had said anything to him that may have influenced him. He made it clear that C.T. could exercise his right to silence at any time and could change his mind about whether to speak to a lawyer.

[6] Constable Duffield then obtained basic biographical information from C.T., following which he asked a number of questions about the daycare C.T.'s mother operated. He then asked about C.T.'s education, including a "police foundations" program C.T. had taken at a community college.

[7] Constable Duffield then outlined the allegations that had been made by the child. He made it clear from the outset that he believed the allegations to be true:

DUFFIELD: And I have no question on my mind that she saw you with your pants down. There's no question. Which is why I was so adamant with you on the phone saying you're gonna be arrested.

C.T.: Mm-hmm.

DUFFIELD: Kids don't lie about that stuff.

Constable Duffield told C.T. it was up to him if he wanted to provide an explanation. He promised C.T. that "there's no tricks" and "no tactics" in his questioning.

[8] C.T. denied committing the offence. Constable Duffield questioned him about where in the house the children would play and where he would be when he was in the house. Constable Duffield then engaged in a lengthy monologue explaining why he believed the allegations. He made it clear that he could not be persuaded otherwise, saying things like "You're never gonna be able to convince me . . . that it didn't happen" and "there's no disputing the evidence."

[9] At this point, Constable Duffield presented C.T. with a choice of explanations for the commission of the offence: either it had been a mistake or else he was a dangerous person about whom the police had to be concerned. He returned to this theme several times during the course of the interview:

DUFFIELD: . . . So that's what I'm trying to say to you, like, if it were a situation where, you know, y-, as a teenage boy you were joking around or like I don't know, right? I don't wanna put words in your mouth, I don't. But you can't tell me with any dignity that I don't know how that could have happened because it, it didn't happen. You and I both know that it did happen. And what I wanna try and establish today here is why. Is it, is it a simple reason? Like are you a child molester?

C.T.: No.

DUFFIELD: Okay. So if you're not a child molester, and I've only interviewed a couple out of all the people I've interviewed, everybody else has an explanation for me. So you're either a monster in this society who is targeting kids for sexual purpose or it's a situation where opportunity knocked and you had an erection as a teenage boy and you made a mistake. People make mistakes, and if that's the case I'd much prefer to know you as a guy that made a mistake then somebody that I need to be worried about for the rest of my career hanging around parks, targeting children. 'Cause she didn't lie. So what is it?

C.T.: It's nothing. I've never taken my pants off in front of her. I've never done anything to that.

DUFFIELD: . . . Like, I don't know, there's gotta be something to explain this. It's gotta be something, and if you're not a, predator I have to worry about, then this is a mistake you've done and it's a one-time thing. If it's a one-time thing then you know what, take some accountability for it. Come to terms with it.

[10] At one point, Constable Duffield suggested that C.T. may not remember committing the offence because he knew he should not have done it so he "removed it from his mind" because "that's how the brain works". He then returned to the same theme in which C.T. was given a choice:

DUFFIELD: But when I tell you that she tells me that she's touched your penis, then all the sudden the alert goes off in your head, you know? That's why you don't quite remember it. But I would remember that instinctively. Like you were 16, 17. At the end of the day, [C.], are you somebody that I need to be concerned about around children?

C.T.: Definitely not.

DUFFIELD: Okay. So I don't have to worry about that then you let me know why I don't have to worry about that, because right now I'm teetering on worrying about it. And I'm, I'm concerned. I'm not gonna say too much, but I'm concerned, okay. So either this was a one-time thing between you and [K.] and you made a mistake and let her touch your penis or you should be, like, flagged forever as being somebody that, that we need to be concerned about around children. You tell me.

C.T.: I shouldn't be.

DUFFIELD: Okay.

C.T.: I'm not a person like that.

DUFFIELD: And I don't think you are. It doesn't negate what happened. So is it a one-time thing that this happened?

C.T.: It didn't happen though, like . . . .

Constable Duffield then interrupted C.T. and launched into another explanation as to why he was convinced that the offence had taken place, following which he returned to the same theme:

DUFFIELD: . . . So you give me a reasonable explanation for that, okay? Because I don't think that I need to be worried about you in society, but I-, I'm not completely convinced of that. Was it a one-time thing only?

C.T.: If it happened, yeah, but I just-, I can't see myself putting myself into that situation of, you know, forcing her to do that or guiding her hand to do that. I can't see myself doing that.

Constable Duffield made it clear that he did not accept the denial and accused C.T. of "joking around" and "making excuses".

[11] At this point, Constable Duffield introduced the suggestion that unless C.T. admitted that his commission of the offence was a "mistake", he would be the subject of further investigation that would involve other people being questioned about him:

DUFFIELD: But that's what I'm saying. Is this a one-time thing with [K.], [C.], where you let her touch your penis or do I have to be worried about a whole bunch of the kids that have gone in to your mom's place. This is either gonna barrel into a, a huge thing, or this is a one-time situation with [K.]. But I'm telling you right now, she's not lying.

DUFFIELD: If this is a one-time thing and you talk about it today and we get it out. Because I need to feel confident in my investigation that I don't need to go any further. Does that make sense to you?

C.T.: Kind of.

DUFFIELD: Okay. Well, it's like, if somebody admits to me that they broke into a house once and I believe them, I don't have to worry about the rest of the neighbourhood. Does that analogy make sense to you?

C.T.: Yeah.

DUFFIELD: So if you allowed [K.] to touch you once and you asked her to touch your penis and she touches your penis, and it happened once then I don't have to look into any other homes. Get it? So is that true or is it false?

C.T.: It was a one-time thing?

DUFFIELD: Yeah.

C.T.: If it had happened, yeah.

DUFFIELD: Don't keep saying if it had happened, [C.].

[12] Constable Duffield then appeared to adopt a different tactic by trying to appeal to C.T.'s conscience, suggesting that it would be beneficial to the child if she knew that he was sorry for what he had done. C.T. continued to deny the offence and Constable Duffield continued to make it clear that he did not accept the denials. Constable Duffield then reverted to the earlier theme:

DUFFIELD: I mean, how far do you wanna push this? Shall I speak with every kid that was at your mom's daycare and see how many other kids say things to me? 'Cause I will. I'll go and investigate every single child that was ever at your mom's daycare and I guarantee you, they'll be another kid that's gonna say, [C.] asked me to come upstairs to see his bedroom. [C.] asked me upstairs.

DUFFIELD: Okay. But you're not admitting that she's touched your penis and I know she has. So I'll ask you again, how many other kids should I talk to there? How many more should I go talk to there? And how far back should I go?

[13] Up to this point, C.T. had denied committing the offences, albeit sometimes equivocally. He made the first unequivocal admission at 8:24 p.m., about an hour and a half into the interview:

DUFFIELD: She has told me many, many, many times that it has happened. Not just one time, many times. So why does she come up with many times? Why not just lie and say one time? Why not say three times? No, two or three times a week, every week that she's there. That's like a hundred times, right? And the reason you're starting to breathe heavier right now and the reason you're getting anxious is because it's true and you're like holy shit. Here we are. And the only way I'm gonna be able to go to her is for you to take some accountability for your actions and to either say to me, Duffield, I made a huge mistake in my life but I've moved on. Or guess what, you've just caught a pedophile and good for you, 'cause you've helped society.

C.T.: I'm not that.

DUFFIELD: Well, then, what is it, [C.]? Did you make a mistake or not?

C.T.: Yeah.

DUFFIELD: Okay. Is she lying when she said she touched your penis?

C.T.: (Inaudible)

DUFFIELD: What? Yes or no?

C.T.: No.

[14] C.T. later clarified that he admitted that the child had touched his penis on the couch, but did not admit that there were other occasions. While Constable Duffield persisted in suggesting that there were other occasions, C.T. would not admit this and the interview was terminated soon thereafter.

III. Positions of the Parties

[15] Crown counsel submits that the entire statement was voluntary. While he concedes that certain utterances by Constable Duffield could be viewed as inducements, they were mild and would not have had the effect of overbearing C.T.'s will.

[16] Defence counsel submits that there were inducements and that they were significant. Relying on R. v. Horvath, [1979] 2 S.C.R. 376, she submits that by the time C.T. made inculpatory utterances, he had undergone an "emotional disintegration" such that the utterances were clearly not voluntary.

IV. Analysis

A. The Modern Confessions Rule

[17] The modern confessions rule in Canada was comprehensively explained by the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 and more recently summarized in R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500 (at paras. 11-13):

At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily. This Court set out the test for ascertaining the voluntariness of such statements in Oickle. That case "recast the law relating to the voluntariness of confessions ... It rejected resort to fixed and narrow rules": D. M. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at p. 290. As Iacobucci J. explained in Oickle, at para. 27, the rule "is concerned with voluntariness, broadly understood". He also emphasized that a contextual approach is required (at para. 47):

The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and "should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule" (Oickle, at para. 63). On the other hand, the use of "police ... trickery" to obtain a confession "is a distinct inquiry ... [given that] its more specific objective is maintaining the integrity of the criminal justice system" (para. 65).

There is no suggestion of police trickery in this case. Nor is there any air of reality to the suggestion that C.T. did not have an operating mind. With respect to the defence contention that C.T.'s inculpatory statements were the result of an "emotional disintegration", in my view there is no evidence of any such disintegration and the facts in this case bear no resemblance to the facts in Horvath. However, as I will explain, I have other concerns about the manner in which C.T. was interviewed.

B. The "Reid Technique"

[18] Although the term was not referred to in evidence, it is clear to me that in interviewing C.T., Constable Duffield employed the "Reid technique" or something akin to it. The features of the Reid technique were described by Glithero J. in R. v. Barges, [2005] O.J. No. 5595 (S.C.J.) (at para. 53):

They include unequivocal statements by the police indicating that they are convinced that the accused is criminally responsible, discussion by the police by an accused's redeeming qualities and the use of praise and personal flattery to attempt to persuade him to talk, the use of techniques designed to minimize the accused's moral responsibility by suggesting some reason making the accused's actions more understandable, suggesting that anyone else faced with the same situation might have reasonably acted the same way, condemning others by suggesting their actions were in some way partially responsible for what happened, suggestions by the police that the community, or members of it, are thinking badly of the accused, hence suggesting that the record should be set straight, moving physically closer and touching the accused during the interview, while uttering gentle words suggesting understanding, questions suggesting two alternatives, both indicative of guilt, but one more palatable than the other, and both of which ignore the third possibility of denial, the use of lengthy monologues by the police designed to deflect the accused from wanting to leave or continuing to assert a certain position.

See also R. v. Minde, 2003 ABQB 797, [2003] A.J. No. 1184 (Q.B.) at para. 32.

[19] Of particular relevance in this case is the technique described in Barges that involves the suggestion by the police of two alternatives, one more palatable than the other but both indicative of guilt. This is a common feature of the Reid technique. In R. v. Barges, supra the accused was told that absent an explanation from him, the police would conclude that he was a "cold-blooded murderer" and a "monster". Similarly, in R. v. McDonald, [2013] B.C.J. No. 300 (S.C.), it was suggested to the accused that either he was a "cold hearted serial killer" or just a person with a "bit of a temper". In R. v. Minde, supra, the accused was given a choice between admitting that he had caused the deceased's death accidentally or else had intended her to die. The suggestion that a killing was either accidental or in self-defence or else intentional was also made in R. v. Mallaley, [2002] N.B.J. No. 453 (Q.B.). In R. v. Chapple, 2012 ABPC 229, [2012] A.J. No. 881 (Prov. Ct.), the police suggested to an accused charged with assaulting a child that the assault had been a reaction to the child's difficult behaviour and not because the accused was a "monster". A similar approach was used in R. v. M.J.S., [2000] A.J. No. 391 (Prov. Ct.).

[20] Minimization of the offence by the police is not by itself improper: R. v. Oickle, supra at paras. 73-74. Nor is contrasting a minimized version of the offence with one that is more serious. However, where the accused is given a choice between two versions and there is some suggestion that the consequences to him will differ depending on which version he chooses, the police are treading on dangerous ground. The most blatant example of this would be where the accused believes that confessing to one version will result in being charged with a less serious offence with a less severe penalty, such as admitting to manslaughter in order to avoid being charged with murder: R. v. Oickle, supra at para. 49.

[21] The Reid technique has been the subject of considerable academic criticism centred primarily around two concerns. The first is that the technique is premised on the ability of the interviewing police officer to be able to detect when the subject is being deceptive. There is, however, no empirical support for the suggestion that police officers can detect deception at a rate of better than chance. The second concern is that the technique is coercive in that it is designed to force the subject to choose between two alternatives, both of which are premised on his guilt. In these circumstances, there is a very real concern that the technique will result in false confessions. See T.E. Moore and C.L. Fitzsimmons, "Justice Imperiled: False Confessions and the Reid Technique" (2011), 57 C.L.Q. 509 and B. Snook et al., "Reforming Investigative Interviewing in Canada" (2010), 52 Canadian J. Criminology & Crim. Just. 215.

[22] Despite the concerns respecting its use, it is clear that the use of the Reid technique will not by itself necessarily lead to the conclusion that a statement is not voluntary: R. v. Visciosi, [2006] O.J. No. 3251 (S.C.J.) at paras. 14-15. As Oickle makes clear, the determination must be contextual and each case will turn on its own facts. However, given the inherently coercive nature of the technique and the concerns about its ability to create false confessions, in my view the use of the technique creates a need for extra caution in evaluating the voluntariness of a statement.

C. The Existence of a "Quid Pro Quo"

[23] In R. v. Oickle, Iacobucci J. stated that "[t]he most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise" (para. 57). The nature of the "quid pro quo" that is relevant to the voluntariness inquiry was explained by Duncan J. in R. v. C.K., 2005 ONCJ 462, 36 C.R. (6th) 153 (Ont. C.J.) in the following terms (at paras. 25-27):

The court [in Oickle] suggested that trial judges should be particularly vigilant with respect to circumstances that might lead to a false confession. It emphasized that while inducements were still a central concern of the confession rule, the focus should not be on "empty formalism" that is, a search of the record for phrases such as "it would be better if ..." but rather the concern should be on inducements that constitute a quid pro quo offer by the police. By this I understand the Court to mean that there must be a hope held out by the police (as opposed to being self-generated) that an advantage within the control of the police (not spiritual) may accrue to him (or someone close to him) by the giving of a confession.

I part company with Crown counsel Mr. McGuire's interpretation of Oickle when he submits that the quid pro quo inducement must be conveyed by the police in blunt stark terms. I see nothing in Oickle that suggests that. The confession rule has always taken cognizance of subtleties and it would take the plainest statement to the contrary for me to accept that the law in that regard has changed. This is particularly so considering that such offers made impliedly or subtly carry exactly the same dangers as those made more directly.

The Court in Oickle added that, as well as being a quid pro quo, the inducement must be one that is strong enough, in itself, or in combination with other factors, to raise a doubt that the will of the subject has been overborne. One such other factor may be oppression, which can in itself produce a false confession or can provide a context or atmosphere in which an otherwise minor inducement can overcome the subject's will.

[24] One example of a quid pro quo could be where the police suggest that unless an accused confesses to a version of events with diminished culpability, the police will conclude that he had a greater degree of culpability and that conclusion will result in some adverse consequence for the accused, such as a greater penalty.

[25] Based on the foregoing, the focus in this case must be on whether the interview was conducted in such a way as to create the impression that the police were making a quid pro quo offer and, if so, whether it raises a reasonable doubt that C.T.'s will was overborne.

D. Application to the Facts of This Case

[26] The overarching theme of the interview, which was very much emblematic of the Reid technique, was the attempt by Constable Duffield to have C.T. choose between two options, both indicative of his guilt but one of which was more palatable than the other. In this case, C.T. was presented with a choice between admitting that he had committed the offence but that it had been a "one-time thing" and a "mistake", or else having Constable Duffield conclude that he was a "predator", "monster", somebody who should be "flagged forever" or a "pedophile". Presenting an accused with a choice of this nature is not, by itself, a basis for concluding that the statement was involuntary. However, where it is made clear by the police that certain implications may follow from the choice the accused makes, it may well be that this amounts to a quid pro quo offer that constitutes an inducement.

[27] That is what occurred in this case. While C.T. was initially simply presented with the "one-time mistake" and "predator/monster" dichotomy, later in the interview, Constable Duffield made it clear that the latter option meant that C.T. would be investigated further and every child that had been at his mother's daycare would be questioned about him. This was made very clear when Constable Duffield said:

So if you allowed [K.] to touch you once and you asked her to touch your penis and she touches your penis and it happened once then I don't have to look into other homes? Get it? So is that true or is it false?

As Constable Duffield put it, it would "barrel into a huge thing". In my view, Constable Duffield's suggestion that he would conduct an extensive investigation into C.T. unless he admitted committing the offence ("I'll go and investigate every single child that was ever at your mom's daycare") constituted a quid pro quo inducement.

[28] This case bears some similarity to R. v. Jorgge, [2014] O.J. No. 4999 (S.C.J.). The accused in that case was charged with sexual assault and administering a noxious substance. Like C.T., he was interviewed for about three hours by an officer employing the Reid technique. Like C.T., he was presented with a choice between admitting that he had committed the offence but that it was a "one-time thing" or else having the officer conclude that he had committed similar offences in the past. Forrestell J. excluded a portion of the interview for the following reasons (at paras. 36-40):

The implicit threat in this case was the suggestion by the police officer that the officer would charge Mr. Jorgge with being a serial predator -- he would make a "whole project out of him". However, the threat did not amount to an offer of a quid pro quo until the officer explicitly tied it to Mr. Jorgge answering questions. I am satisfied beyond a reasonable doubt that the answers given by Mr. Jorgge up to page 254 of the transcript were voluntary. The officer initially used moral suasion to influence Mr. Jorgge. The initial development of the theme of Mr. Jorgge not being an evil person, but just a person who had made one mistake was not a threat or an inducement. Mr. Jorgge chose to answer the questions up to that point. When the answers were denials, the officer interrupted and spoke over Mr. Jorgge. It was ultimately made clear that only certain answers would enable Mr. Jorgge to avoid being viewed as a serial predator. I find that the statement by the officer at page 254 set out above, in the context of the interview as a whole, conveyed that Mr. Jorgge needed to answer questions and to answer them in a way that was an admission in order to avoid being investigated and possibly charged as a serial offender.

[29] In this case, it was eventually made clear to C.T. that he needed to admit the offence in order to avoid being the subject of a further investigation in which every child that his mother had looked after would be interviewed. This culminated on page 69 of the transcript with Constable Duffield telling C.T. that he could "either say to me, Duffield, I've made a huge mistake in my life but I've moved on" or else Constable Duffield would conclude "Or guess what, you just caught a pedophile". It was at this point C.T. made an unequivocally inculpatory admission.

[30] In the context of the interview as a whole, while I am satisfied that C.T.'s statements were voluntary up to that point, I have a reasonable doubt as to their voluntariness thereafter. In my view, there is a very real possibility that C.T.'s will was overborne when it became clear to him that unless he admitted committing the offence, he would be labelled as a "pedophile" and numerous people, including the children his mother made her living caring for, would be questioned about him.

V. Conclusion

[31] I am satisfied beyond a reasonable doubt that the statements made by C.T. in the first 68 pages of the transcript were voluntary and they are admitted into evidence.

[32] I have a reasonable doubt as to the voluntariness of any statement made after Constable Duffield said, at the top of page 69, ". . . either say to me . . . I made a huge mistake. . . . Or else, guess what, you've just caught a pedophile". The statement from that point onwards is excluded.

Justice P.A. Schreck

Released: May 28, 2015