WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) Mandatory order on application. — 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.

486.6 Offence. —(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.

Court Information

Ontario Court of Justice

Date: July 16, 2015

Court File No.: Brampton 13-4282

Between:

Her Majesty the Queen

— and —

M.R.

Before: Justice P. F. Band

Reasons for Judgment released on: July 16, 2015

Counsel:

• Ms. K. Slate, counsel for the Crown
• Ms. R. Sussman, counsel for the accused M.R.

BAND J.:

I. Introduction

[1] M.R. is accused of sexual assault and sexual interference on his daughter A.R.M. in the weeks leading up to April 5, 2013, when she was a toddler.

[2] The central evidence for the Crown consisted of unusual utterances and behaviour attributed to A.R.M. ("A.R.M.'s utterances") and M.R.'s five hour-long statement to police.

[3] Prior to the close of the Crown's case, I admitted A.R.M.'s utterances pursuant to the principled exception to the rule against hearsay (the "Khan application"). My reasons for doing so are found at R. v. M.R., [2015] O.J. No. 1033, and should be read in conjunction with these reasons.

[4] M.R. testified in his own defence, and denied sexually abusing his daughter. The defence also called Dr. Richard Swinson, a psychiatrist and expert with over 40 years of experience in the diagnosis and treatment of obsessive-compulsive disorder ("OCD").

[5] At the outset of the trial, the defence conceded the voluntariness of M.R.'s statement and waived the need for a voir dire.

[6] By the time the police interview began, M.R. had not slept in 39 hours. He spent the previous night wandering in a park and on the streets contemplating suicide before going to the Emergency Department (the "ER") in what can only be described as a mental health crisis. Immediately before being taken into police custody, he had spent approximately 12 hours in hospital for a psychiatric assessment during which he had been held on a Form 1 under the Mental Health Act and given medication to relax. (Unable to obtain bail on the day following his arrest, M.R. was sent to Maplehurst Detention Centre where he attempted to kill himself by slashing his wrists.)

[7] The police officer used the Reid technique to interview M.R. As I will discuss further, he also presented some very strong inducements accompanied by quid pro quos.

[8] The statement is highly equivocal and ambiguous. M.R. repeatedly indicates that, based on what his daughter was saying and doing, he either must have or could have done very serious things to her. While he states that he does not remember abusing his daughter, and cannot generate "images" in his mind of having done so, he frequently refers to making "connections" between what has been said and done around him and his own internal fears of wrongdoing. He describes this as a bad feeling that he would get, which, in turn, would confirm his fears. The following response to the question whether he had ejaculated in his daughter's mouth is a good illustration.

It's possible that I did it. I mean, I could say that -, I mean if I got that feeling. I was making the connection, so, I, I could say that I, I must have done it, yeah. I mean it's something very possible. I felt like it was -, I mean, what else could it be? The explanations, you know, fit. And it, it really when, you know, when-, it just was, you know. As I'm realizing when she was saying these things, you know. You, you feel…. [1]

[9] This passage, and others like it, could be read as shedding light on and confirming his daughter's expressive conduct. It is most tempting to read them that way because it seems counterintuitive that an innocent man would be confused about whether he had violated his own 2 ½ year old child within the last seven to 30 days. Rather, one would typically expect an innocent man to deny any such allegations in the clearest possible terms.

[10] Without M.R.'s statement to police, the Crown's Khan application would necessarily have failed.

[11] As I found in the context of the Khan application, A.R.M.'s words and phrases alone are cryptic. "Without more, they are devoid of any readily ascertainable meaning with respect to a fact in issue in this trial." I also found that A.R.M.'s words and conduct do no more "than suggest sexual assault. Standing alone, they may not establish relevance and probative value pursuant to R. v. Ferris."

[12] My findings concerning A.R.M.'s utterances remain unchanged. However, it was not until I heard the testimony of M.R. and Dr. Swinson that I came to know all the circumstances relevant to M.R.'s statement.

[13] Crown counsel made a number of fair concessions:

• A.R.M.'s utterances are insufficient to ground a conviction; and
• Medical evidence from nurses who assessed A.R.M. is neutral; and

[14] But having done so, Crown counsel maintained that there exists in this case the following evidence capable of confirming A.R.M.'s utterances:

• M.R.'s utterances to P.M. and behaviour leading up to April 9;
• M.R.'s utterances to the triage nurse in the ER;
• M.R.'s utterances to the psychiatrist in the ER; and
• M.R.'s statement to police.

[15] Crown counsel urged me to find that M.R.'s testimony was not worthy of belief. Citing R. v. Murray, [2] Crown counsel also reminded me that I can take M.R.'s interest in being acquitted into account in weighing his testimony.

[16] She also submitted that I ought to discard Dr. Swinson's evidence to the extent that it depended solely on M.R.'s self-reporting and failed to consider alternatives such as paraphilias.

[17] The central issue in this trial is what weight, if any, I ought to give to M.R.'s statement. [3]

[18] Having considered all of the relevant circumstances, I have found that M.R.'s statement to police was involuntary and wholly unreliable. It was the product of a combination of oppressive circumstances and impermissible inducements that had the effect of overbearing his will. In addition, because he was in the grips of OCD-driven confusion, M.R. was particularly vulnerable to the techniques employed by the police.

[19] Notwithstanding some of the aspects of the Crown's case that exist independently of M.R.'s statement to police, I have a reasonable doubt as to his guilt.

[20] The following reasons explain why.

II. M.R.'s Behaviour and Utterances Leading up to April 9

[21] I found P.M.'s account of what she observed during the weekend of April 5-7 to be credible. The defence did not challenge it and M.R.'s testimony was essentially consistent with it to the extent that he had been in a position to make the same observations.

[22] P.M. had been a stay-at-home mother and M.R. worked Monday to Friday. There were stresses in the relationship due to financial concerns and difficult relations with M.R.'s parents.

[23] In the two-to-four weeks preceding Friday, April 5, P.M. had returned to work and studies on a part-time basis on weekends. For the first time, M.R. was alone to take care of A.R.M. for extended periods. On April 5, A.R.M. began to make the unusual utterances and accompanying gestures to P.M. P.M. told M.R. about these when he came home from work. P.M. was concerned that A.R.M. was trying to tell her something and became convinced that something was wrong. She questioned M.R. about it that day, and throughout the weekend. She believed he had to know what A.R.M. was trying to convey. Most of his responses were that he did not know. He seemed nervous. He appeared to be putting distance between himself and A.R.M. and at one point pulled his hand away from her as she tried to lead him to her bedroom. This was unusual.

[24] P.M. slept with A.R.M. throughout the weekend. She spent Saturday with her, and M.R. was also present. In the middle of the night, M.R. woke P.M. up and told her that he had been having dreams and that he "had a bad premonition" that "something may have happened." On Sunday, P.M. had to go to work. She told M.R. to spend time outside with A.R.M. close to P.M.'s workplace. M.R. brought A.R.M. to P.M.'s workplace after taking her to McDonald's. He told P.M. that A.R.M. had tried to kiss some kids in the playroom and that he believed "something happened." P.M. was very nervous, her mind was racing and she kept asking M.R. what happened. He replied that he did not know.

[25] At trial, M.R. described P.M.'s tone as accusatory. I believed him. In cross-examination, P.M. agreed that she was being persistent. This makes sense, given how concerned she was about her daughter, especially in the context of M.R.'s behaviour and responses.

[26] A.R.M.'s unusual behaviour continued on Sunday. That night, she asked M.R. to leave for work earlier than usual the next morning. He did so. According to M.R., he got up at 5:30 that morning.

[27] P.M. spoke to her sister who gave her some advice and phone numbers to call for assistance. M.R. came home from work on Monday afternoon. He spoke with P.M. in the vestibule, as she would not let him into the apartment. At one point, the upstairs neighbour passed by, M.R. looked at him and then with a strange look on his face told P.M. "I believe it's true. I did all kinds of things to her." P.M. told M.R. to leave and then locked him out.

[28] M.R.'s account of the events of Monday night were not challenged by the Crown and I believed him. He convinced himself that he must have done something to his daughter. He wondered whether he had a split personality. At one point, he went to the public library where he read a book about victims of sexual abuse. He read about a disturbed man who had sexually abused his daughter and later killed himself. He felt that he was in the same situation as that man. He spent the night in a park debating whether to kill himself or go to the hospital. He did not sleep. In the morning, he took a taxi to the ER at Brampton Civic Hospital.

III. M.R.'s Utterances to the Triage Nurse

[29] Ms. Elisa Busel is a registered nurse who was working in triage at the ER the morning M.R. arrived. She hails from the Philippines and English is her second language. She called the Children's Aid Society ("CAS") after assessing him.

[30] Her job is to check patients' vital signs and ask them questions about why they have come to the ER. The goal is to assess the patient quickly – in under five minutes. In her examination-in-chief, she first indicated that she "then takes notes on a computer." Later in her examination-in-chief, she said that she wrote her notes as M.R. was talking. They are not a verbatim transcript; rather, they contain the gist of what he was saying. While the matter stood out in her mind because it involved a child and was the first time she had called the CAS, she relied on her notes to refresh her memory.

[31] She noted the following about her conversation with M.R.:

"out of mind," abusing 2.5 yrs old child for a while, planning to commit suicide, abused by his father since he was young; "completely lost"; wants help for what has done; able to make eye contact; also says he's bipolar

[32] In cross-examination, she acknowledged that M.R. did not mention the kind of abuse or any specifics, but she denied that he had told her he believed or thought he had been abusing his daughter. She had, however, been "given a heads up that he had sexually abused a 2 ½ year old girl" by another nurse before she spoke with M.R. The reason for this was so that she would know what to do after concerning the CAS.

[33] M.R.'s vital signs were normal and he appeared calm, but Ms. Busel considered him "unwell" because of his thoughts of suicide.

IV. M.R.'s Utterances to the Psychiatrist in the ER

[34] Dr. D. Koczerginski is the Chief of Psychiatry at Brampton Civic Hospital. He assessed M.R. following a request from the ER physician, who had placed him on a Form 1. While he had a vague recollection of meeting with M.R., he had no independent recollection of all the specifics. He made handwritten notes of his conversation with M.R. and dictated an electronic consultation report. His notes are not a transcript. He writes what he thinks is important. But if he wrote down a quote, he is confident that it is what M.R. said.

[35] He explained that the Form 1 had been issued because M.R. was depressed and contemplating ending his life. Given the Form 1, his main focus was on risk assessment. After speaking with M.R., he discontinued the Form 1.

[36] Dr. Koczerginski's summary of what M.R. initially told him is that he came to hospital with concerns that he had the belief that he may have sexually abused his daughter. This was highly distressing to him. He had contemplated ending his life, and decided to come to the ER for some help instead. He explained that his daughter had been exhibiting and expressing sexualized behaviour and gave some details including "daddy broke in mouth" and the trumpet. Her odd behaviour was suggestive to him and things began to "snowball." He believed that the implication was that he had penetrated her and ejaculated.

[37] It appeared to Dr. Koczerginski that M.R. was in a process where he initially believed he could not have done such things. He had no recollection of doing so, but he began to put things together and came to believe that he had done things that he clearly felt were unacceptable. While he consistently expressed a degree of doubt, these beliefs caused him a great deal of distress.

[38] At the end of the consultation, Dr. Koczerginski was unable to discern whether M.R.'s beliefs were true or the expression of "intense obsessional preoccupation."

[39] He felt that M.R. should be seen at a centre like CAMH for further specialized psychiatric assessment or involvement and advised the police of this as well.

V. Legal Principles Surrounding Accused's Statements to Police Officers and the Problem of False Confessions

[40] As the Supreme Court of Canada has explained in R. v. Oickle, 2000 SCC 38, our intuition that people do not confess to crimes they did not commit is not always correct. Yet, false confessions play an important role in the convicting of innocent persons. This is contrary to one of the overarching principles of our criminal law: that the innocent must not be convicted. [4]

[41] The modern confession rule set out in Oickle attempts to protect against false confessions. While the rule's "overriding concern is with voluntariness, this concept overlaps with reliability." [5] A number of factors can affect the voluntariness and reliability of a confession. These include inducements, circumstances of oppression and the particular vulnerabilities of the suspect. [6]

Inducements

[42] Inducements, such as threats or promises, can give rise to concerns that the suspect's will has been overborne. The most important consideration in such a case is whether the interrogator offered a sufficiently strong quid pro quo. Also relevant is whether the inducement is offered in the context of "intense and prolonged questioning" that may "convince a suspect that no one will believe his or her protestations of innocence." [7]

[43] The Court identified a number of types of inducements. Relevant to this case are offers of psychiatric assistance or other counseling and minimizing the seriousness of the crimes. [8]

[44] While police can suggest that a suspect needs psychiatric help, it is improper for them to offer to facilitate psychiatric help in exchange for a confession. Likewise, while police can downplay the moral culpability of a suspect, it is inappropriate to suggest that a confession "will result in the legal consequences being minimal." [9]

Oppression

[45] The Court explained that "oppressive circumstances could overbear the suspect's will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession." Factors such as sleep deprivation, denying access to counsel and excessively aggressive and intimidating questioning for a prolonged period of time can create an atmosphere of oppression. [10]

Mental Illness

[46] Citing academic scholarship, the Court warned as follows:

False confessions are particularly likely when the police interrogate particular types of suspects, including suspects who are especially vulnerable as a result of their background, special characteristics, or situation, suspects who have compliant personalities, and, in rare instances, suspects whose personalities make them prone to accept and believe police suggestions made during the course of the interrogation. [11] [my emphasis]

The Reid Technique of Interrogation

[47] Judicial and academic critiques of the Reid technique abound. A number of them are cited in R. v. C.T., a recent decision of this court. [12] I do not propose to repeat them as they are so well articulated by those authorities. Suffice it to say that I share those concerns.

[48] Trial judges must consider all the relevant factors when reviewing a confession. [13] Therefore, the use of the Reid technique does not necessarily lead to the conclusion that a statement is not voluntary or unreliable.

[49] However, I agree with my colleague Schreck J. that "the technique creates a need for extra caution in evaluating the voluntariness of a statement." [14] All the more so when it involves a particularly vulnerable suspect, circumstances of oppression, inducements and quid pro quos.

VI. Inducements and Circumstances of Oppression in this Case

Excerpts from the Interrogation

[50] M.R. indicates a wish to consult with counsel and or review disclosure before making a statement over a dozen times in the first two hours of the interrogation.

[51] Approximately one hour and 20 minutes into the interrogation, PC Boyce tells M.R. "there's no doubt in my mind … that at some point in the past, you've touched … [A.R.M.] inappropriately." While this declaration is made over an hour into the statement, it appears at p. 27 of the transcript. It occurs very early on in terms of substance, owing to a number of prolonged breaks during which M.R. is left alone.

[52] Moments later, PC Boyce tells M.R. the following. [15]

…I work in the special victims unit, and a lot of the things that I see are-, I mean, I've seen pretty much everything, right?...

… this isn't abnormal … what I've seen today … it's not unusual. There is things that happen … in the course of some people's lives that they can't control, right?...

…certain things that happen that, there's absolutely no explanation for why these things happen. … that's why I'm in here, talking to you, okay?

… I'm not upset at you and everybody who knows about this case is not upset at you.

… the only reason that we do this, is to try to determine why. And if, you know … you need to get some assistance …

… that's what we're here for right ? [16]

[53] About seven minutes later, PC Boyce asks M.R. whether he is

somebody that society should be overly concerned about or is this something that's an isolated incident that's solely … restricted to you and your particular situation?

At this time, M.R. refers to the option of "some kind of therapy." [17]

[54] Less than 10 minutes later, PC Boyce tells M.R. that the doctors and nurses were "having some difficulty examining [his] daughter" and that they would "like some questions answered." He goes on as follows.

…maybe if I ask some pointed questions, right… they might be tough ones to hear… but they may help us and help the doctors and also help … your daughter has to got through this … she has to go through another exam next week … okay? … they are not … they're pretty invasive exams…

…from what I saw today, I wouldn't want to see… I know what you must be feeling right now, but I … wouldn't want to see your daughter go through something like that again…. [18]

[55] Minutes later, M.R. tells PC Boyce that the possibility of jail makes him fearful for his safety, and inquires again about the potential "alternate route" of a mental health centre such as CAMH (which Dr. Koczerginski had recommended). Again, PC Boyce tells M.R. that his situation is not unique or abnormal. He adverts to the existence of "segregation" in jails, but then says "even tonight… I'm gonna be making recommendations that you see a psychiatrist." He then explains that he will advise the court the following morning that M.R. is an "emotionally disturbed person." [19]

[56] About 20 minutes later, PC Boyce suggests to M.R. that what he did was "minor" and asks M.R. if he is afraid to admit it. M.R. indicates that he is confused. [20]

[57] After another 20 minutes, PC Boyce characterizes the interview as a "man on man" talk. Then the following exchange takes place.

It's my job to try to figure out what happened, right?...

That's what the police officer does. Crime happens…and then, although I wouldn't say crime…in respect to your case… cause it … sounds bad … when you say crime, right ?

M.R.: well, it is … I mean there's definitely, uh, I mean, it is a crime…

PC Boyce: … in the eyes of the law… right? But people don't know … the full situation. [21]

[58] 20 minutes or so later, after M.R. repeats that he wants to see the evidence, PC Boyce tells him:

Well, this is usually the … only chance, right… I'm the officer that's in charge of this investigation….this is where we … in particular to give some closure to your wife…and to your daughter now, so that I don't have to put your daughter through this [ie. invasive assessments at the hospital] again on Thursday… and we don't have to bring your wife back up to the police station and interview … her again….

…And she's gonna be really upset. Because she's gonna be like … I have to bring [A.R.M.] back to the hospital on Thursday …I have to come to the police station on Thursday… I have to have a safety plan in place…Right? We have to do a whole bunch of things because we don't know what you're capable of ….

…if there's anything that you can remember that would help me minimize that, so I don't go full scale on the barbed wire and everything like that, then… now is the time, right ?...

Like after this, I don't know …when am I gonna see you again? Probably at court. [22]

[59] Approximately 30 minutes later, M.R. again tells PC Boyce that he does not want to go to jail in the sense of "general population." Minutes later, he repeats that he is afraid for his safety and of "consequences." The following exchange then takes place.

PC Boyce: Listen… there's consequences for people who rape two-and-a-half year old girls, who don't know who they are, and rape them. Shove their penises in their ass, right? Steal them from their parents – those people belong in general population, okay?...

That is not you. Tell me that's you, and I'll put you in general population no problem. Is that you?

M.R.: I don't know, I don't think so. I wouldn't think so.

PC Boyce: Are you … a predator, rapist, pedophile? Or are you, [M.R.] who loves his daughter, who has a lot of problems from his childhood…

…OK so when it comes down to consequences, right…people see the bigger picture… The bigger picture isn't [M.R.] the rapist, pedophile, predator….

Some things that happen, jut happen right?

…I'm trying to figure it out…. [23]

[60] In this context, M.R. says "I'm sick and I wanna get better. That's why I went to the hospital and I have to admit it was very … fulfilling." He then explains his thoughts of suicide and fear of going to jail and the following exchange ensues.

PC Boyce: Right, and that's … why we're … sending, that's why I'm sending you through this process…. I already told you …

There are consequences… but … that's why I'm not sending you-, a normal, regular person, I send them to jail right away. I send them to a bail hearing. I'm not doing that with you. You have to-, I am .. forcing you, because I know there's something wrong with you…right? And I can't say this stuff… in a room like this. I can't lie to you. I'm telling you you're going tomorrow… to see, well, number one, a judge… but you're not gonna get released until you speak to a psychiatrist. And if they… think that there's something wrong with you… sending you to a jail right now … is not gonna work for you.

M.R.: …unless there's this kind of mixed situation. I mean, … the problem for me is not being… if the psychiatrist feels I need time… I mean we have to see the crime. I don't care about the time. I'll spend the time. I mean, I'm willing to put aside… time if that's what's needed…

… but I just feel that it would be very beneficial if it was something a bit more… you know maybe where you're not fearing for your life…. [24]

[61] At this point, M.R. says that "based on things that she was saying… that, you know, it could be very serious things. I don't know, but it could be." [25]

[62] M.R. continues by explaining again that he contemplated suicide because he was afraid to "suffer" but thought better of it because that would have been cowardly. He then explains "but I would … need something … I would hopefully like to have something more like … isolation…" The following exchange ensues.

…here's the thing…okay? I can't make any promises to you, right? I cannot make any promises whatsoever. All I can do is tell you that I'm gonna be making recommendations, very strong recommendations, that you … have to see a psychiatrist, and then, whatever happens-, if you're released, that you have to continue to seek psychiatric help.

M.R.: …of course, without question. That's … without a doubt.

…That's … not an issue. I mean, either … inside or outside….

PC Boyce: But here's the thing… people are gonna be saying, well, why … are you sending Mark? And I'm gonna be, uh, I don't know, because he can't remember anything. So he says, which we know is not true…right? I need some … [26]

[63] It is evident from the context that PC Boyce was indicating that what he needed was more disclosure from M.R.

[64] And at this very point, M.R. says "well, I'm starting to remember things." [27]

[65] Approximately five minutes later, M.R. mentions "horror stories" surrounding jail, and tells PC Boyce "You know, I think I can probably benefit from another … kind of therapy" and indicates that he does not want to "die in jail." PC Boyce responds as follows.

…and I told you, I'm gonna do … the best that I … can, right? ...

But people have no idea what… has really happened. People don't know your whole story…. but if there's any cause for concern … about … your safety, then we have to take that into consideration, right? [28]

[66] He then repeats "you and I may not have this opportunity again." [29]

[67] Five minutes later, M.R. tells PC Boyce that he is "under pressure" and that "[i]t's not easy." The following exchange takes place.

M.R.: I just think there would be a good … opportunity to talk with a psychiatrist. That, or it would be jail and then psychiatrist.

PC Boyce: … I don't know what's gonna happen from this point on … because I don't have too much to go on, right? What am I gonna tell them? … all I have is 'well you're gonna have to wait a while' … I mean till I get some of this, you know, these reports back.

… So for now, I don't know, we've charged him with sexual assault and sexual interference.

… Something happened, not too sure what it is….

The poor girl's suffering, and we're gonna have to take her next Thursday… back to the hospital, but who knows….

Right, he remembers something, he knows he did something, but he … doesn't wanna say it because he's afraid of going to jail. Does he care about his… daughter? Probably not…because he doesn't….

[68] After suggesting that what M.R. did is "very, very small" and "very, very minor," PC Boyce urges him to

Make this the counseling session to end all counseling sessions. And then we got something to work with …. [30]

[69] Two minutes later, M.R. tells PC Boyce that "I didn't know I was doing it until she started saying things….maybe that's what happened." Over the next 15 minutes, M.R. continues to state that he might have, could have or possibly did such things as ejaculate in his daughter's mouth or penetrate her vagina or that her behaviour gave him a "feeling" that he had done so.

[70] He then makes reference to the potential "consequences" and PC Boyce tells him

Well, you know what? I already told you that I'm gonna do my best about that, right? And the first and foremost thing is making sure that … you get…

[71] In light of the context and preceding discussion, it is evident that PC Boyce was referring to getting psychiatric care.

[72] M.R. reiterates that he wants "help" and does not want to be "sick anymore," and asks PC Boyce about the possibilities that he will be provided with help.

[73] PC Boyce responds that "[w]e need to get more disclosure from you" and indicates that M.R. will be speaking to a psychiatrist the following day. [31]

[74] Approximately 12 minutes later, PC Boyce returns to the issue of an "emotionally disturbed person bail hearing." He explains it as follows.

That's just what we call it, right? And it's just a bail hearing where we have to send … you before a psychiatrist, and you have to see someone and you … have to make sure you disclose everything to that person … tomorrow … 'cause they need to know why we sent you. [32]

[75] Approximately 15 minutes later, M.R. asks PC Boyce for an explanation of the process. The following exchange takes place.

PC Boyce: Yeah, so tonight you're still here, unfortunately right, for a couple of hours… you get ... picked up here… and taken to either one of the other divisions where they pick up some people who have done some stupid things tonight … nobody knows why you're there, okay, until you get to court… and … that's when-, I'm not sure if the … you'll have to see a psychiatrist first …

… or you'll have to … be put in front of a judge first … for you [sic] bail hearing. Either way, it's gonna be a two-step pro-, for most people it's just the one step process, where it's the judge that says, should you be released, yes or no …

… yes … you get released, here are some conditions. No, you go to jail, right?….

…. So you're gonna have to do that…

M.R.: Oh I might go to jail tomorrow?

PC Boyce: There is a possibility, yeah. There's a possibility that … a judge may not release you …

We … make conditions that if … you are released, there'll be strict rules that you have to follow, right?

[Potential conditions are discussed]

… that's not up to me, right? A judge will say, well, has he ever committed a criminal offense before, no.

…is he gonna be a danger to … himself or is he gonna be a danger to his family.

M.R.: No

PC Boyce: …right, and right, we're saying no.

… a danger to himself, we don't know that yet, so let's send him to … a psychiatrist first… the officers have recommended … that he go see a psychiatrist….

So then you're gonna have to go through that process …

Which at that point, I'm hoping

M.R.: Is to assess-, that's why I should tell everything.

PC Boyce: That's when you should be … this is why I went yesterday, because this is what had happened….

…and they will make recommendations…

So it's up to those people … and then you can go-, it's like either way, right? I mean it could be-, there's a possibility it could be jail…and if does they're gonna know what you've been charged with … so they're gonna know that … if everybody else knows, then there's gonna be a problem, so … your safety will be important to them….

… the reason that they have jails, is … to punish people … not kill them …

Right… that's not what they're doing. So if there's a risk to somebody … then … they be [sic] diverted. How if that doesn't happen … and you go the other route … you may end up in another facility … it could be a psychiatric facility … that's where you may have to spend some time.... Discussing, talking-, which is a good thing.

M.R.: I have no problem-, I'm willing to… I don't mind. [33]

[76] Approximately 11 minutes later – and almost exactly five hours into the interrogation – M.R. makes his first ostensibly unequivocal admission: that he remembers his penis close to A.R.M.'s vagina but cannot remember if it was inside or not. Upon further questioning, he says he thinks that any movements he would have made would have been "like shorter movements" and that he would have been "probably more careful." He then says he "would never consciously do that" and that "if somebody did that, I think they would remember." [34]

Issues Specific to the Reid Technique

[77] In textbook style, PC Boyce repeats that he has no doubt that M.R. has done wrong and frequently interrupts to forcefully discourage him from denying or couching his answers in doubtful ways such as "I think", "I don't remember", "it's possible" and "I suspect." This begins at roughly the halfway point in the interrogation, which PC Boyce acknowledged was when he shifted into the confrontational stage of the technique. At that time, he interrupts M.R. and says

….you know what? I don't believe that, okay? And we're past that, okay? I know 100 percent … you do remember, okay? So don't say that anymore. [35]

[78] This type of intervention occurs numerous times [36] and in some instances, has the desired effect. The following is a good illustration.

M.R.: It's possible. I… could see it.

PC Boyce: I don't wanna hear possibilities.

M.R.: I can't guarantee it, but I could…see it. I could see it.

PC Boyce: I don't wanna hear I could see it. I want you to say.

M.R.: I…can't say. I mean … I really don't know. But, yeah, okay I guess I have to say it …. [37]

VII. Analysis of the Interrogation through the Lens of Oickle

[79] As the excerpts show, PC Boyce's interrogation of M.R. ran afoul of the teachings set out in Oickle in a number of ways and, in my view, had the effect of overbearing his will to remain silent and producing unreliable, albeit largely equivocal, admissions.

Improper Minimization

[80] PC Boyce minimizes the character of the offences in such a manner as to suggest that their potential legal consequences will be minimal. Very early on, he begins by referring to them as "not abnormal" and "not unusual." Then, he tells M.R. that he "wouldn't say crime" with respect to the allegations. He explains that while they are crimes "in the eyes of the law," people do not know "the full situation."

[81] These passages suggest that the offences are crimes only in a technical or literal sense and that once the "full situation" is known, they will be seen as something other.

Strong Inducements and Quid Pro Quos

[82] PC Boyce's technique trades on M.R.'s desire for psychiatric help as recommended by Dr. Koczerginski and his fear of violence in the jail setting, and uses these related issues as bargaining chips. PC Boyce asks for information that would "minimize" concerns as to what M.R. is "capable of" in order to avoid the need to "go full scale on the barbed wire and everything like that." He then draws the distinction between what happens to the "predator, rapist, pedophile" – who goes into the "general population" of a jail – and the loving father, and asks M.R. to identify as one or the other. "I'm not doing that with you," says PC Boyce, because "sending you to jail right now … is not gonna work for you." He then assures M.R. that he will be making "very strong recommendations" and repeatedly tells him that he will do "the best [he] can" so that he can see a psychiatrist before he is released. He later tells him that he "may end up in another facility… which could be a psychiatric facility … discussing, talking… which is a good thing."

[83] Importantly, the concept of "release" is ambiguous throughout. At most times, it is equated with seeing a psychiatrist or spending time in a psychiatric facility. When psychiatric care will be provided is unclear. Depending on the passage, it is before, after or instead of release. Also unclear is release from where? The police station? The courthouse? Jail? The psychiatric institution?

[84] True, the possibility of jail becomes clearer late in the interrogation. But it then becomes confused again through PC Boyce's explanations of the bail process. These were either hopelessly confusing – "I'm not sure if you'll have to see a psychiatrist first or … be put in front of a judge first" – or blatantly wrong – PC Boyce tells M.R. that it is "up to" psychiatrists to determine his prospects for release and suggests that he may be "diverted."

[85] Either way, they perpetuated the myth that M.R. might somehow avoid jail in favour of a psychiatric setting.

[86] These very strong inducements were accompanied by exhortations to give more information or disclosure. In addition, by repeatedly indicating that this was M.R.'s only chance to speak, PC Boyce's approach suggested that for all intents and purposes, the criminal justice system consisted only of police officers. PC Boyce did not "have too much to go on" and police needed "something to work with."

[87] In the context of this interrogation, these were clear quid pro quos.

Circumstances of Oppression

[88] In view of all the circumstances, the interrogation was oppressive. M.R. was taken directly from the emergency room to the police interview room. By that time, he had not slept in almost 40 hours, had spent 12 hours in hospital and had been medicated. Added to this were the duration and coercive form of the interrogation, repeated references to jail-house violence or death and putting M.R. to the binary choice of identifying as either a "predator, rapist, pedophile" or a loving father who made a series of (nonetheless criminally culpable) "mistakes" as a result of his own troubled childhood. [38]

[89] I am of the view that these circumstances were a significant factor in M.R.'s decision to answer PC Boyce's questions the way he did.

Additional Vulnerability: Mental Illness

[90] My concerns are amplified by M.R.'s mental illness, which made him particularly vulnerable to PC Boyce's approach.

M.R.'s Testimony

[91] At trial, M.R. explained the effects of OCD. A troubling idea would come to him, and he would obsess over it. Even if he knew it was false or irrational, it was distressing. While he was not diagnosed with the disorder until 2008, the problem began in childhood.

[92] As a child, he became convinced that he had AIDS after a visit to the dentist because the dentist had not worn gloves. He believed he was going to die. He obsessed over this idea, which was very distressing to him.

[93] As an adult, M.R. became obsessed with the idea that he was gay. He did not feel sexually attracted to men, but the issue began when a gay man kissed him on the cheek by way of greeting and his wife appeared to disapprove. He then became aware that he was noticing things about men on TV and in public. He would "flip flop" between believing he was gay and not. This became a distressing obsession.

[94] He explained a similar process in relation to his daughter. In April, he had noticed a change in the appearance of her vagina. He felt that it was unnatural for a father to notice such a thing and he began to obsess over it. It was very distressing. It was in this context that he began to obsess over her behaviour. P.M.'s repeated questioning and distrust of him made him doubt himself more. He was able to convince himself that he had done something wrong.

[95] In similar fashion, the pressure he faced in the interrogation made his obsessions and self-doubt worse. He convinced himself that he must have done something and felt like he had to come up with something to put an end to the interview.

Dr. Swinson's Testimony

[96] As a layperson, I confess to having known little more about OCD than the stereotypical examples of incessant hand-washing and other "checking" behaviour. Dr. Swinson's expert testimony was highly credible and informative. By allowing me to understand the disorder, it shed further light on M.R.'s police interrogation.

[97] As Dr. Swinson explained, the main features of OCD are obsessions and compulsions, which are usually accompanied by a great deal of anxiety and depression. Obsessions are repetitive thoughts, images or impulses that come into the mind unwanted. They are not completely under the control of the thinker. They may be repugnant. They may provoke anxiety. They are intrusive and can persist.

[98] OCD sufferers can also hold "overvalued ideas." These are ideas that are incorrect but strongly held. They are often emotion-laden, and the sufferer cannot be argued out of them.

[99] Doubt is frequently an aspect of OCD. Sufferers can be uncertain as to whether they just had a thought or whether they carried out the actions that the thought describes. This is why, for instance, some sufferers need to check and recheck hundreds of times that they locked a door. For this reason, the disease was known for a time as "doubting madness." A common theme among OCD sufferers is a concern that they have harmed or will harm others.

[100] Anxiety and stress increases their uncertainty and as uncertainty increases, so does the strength of the belief that an event actually happened. Being confronted aggressively and repeatedly by someone who tells a sufferer that he or she committed an act will probably increase the sufferer's uncertainty and lessen the sufferer's strength to say it did not happen. Also, the longer and more frequently sufferers try to reassure themselves that they did not do the act, the harder it is for them to stop checking and to believe that they did not do it.

[101] Aggressive interrogation in which the questioner is assertive and discourages doubt can exacerbate the sufferer's uncertainty and discomfort, and impair his or her ability to clearly remember what happened.

[102] Dr. Swinson met with M.R. on November 18, 2014 – that is, approximately 18 months after his arrest and interrogation. By then, he was taking medication and was attending therapy. Dr. Swinson diagnosed him with a form of OCD that was close to the milder end of the spectrum of severity. He used a number of tests as well as his clinical judgment. He testified that M.R.'s description of his disorder was consistent with his test scores. He also confirmed that M.R. had been diagnosed with OCD and treated in 2008-2009 while living in Spain.

[103] Crown counsel obtained a number of admissions in cross-examination. Dr. Swinson is not a forensically trained psychiatrist or an expert in sexual disorders. He relied on what M.R. told him. He candidly admitted that he did not review records relating to the sexual offender group therapy that M.R. had attended. As he put it, "I missed that." Nor did he do or order any tests to determine if M.R. had any sexual paraphilias despite the fact that his test responses made mention of avoiding children and having had sexual obsessions that involve children or incest; eg. thoughts about molesting own or other kids. He acknowledged that these were things he would want to explore further.

[104] However, while those issues allow for the possibility of coexisting disorders, they do not negate the diagnosis of OCD.

[105] Had the purpose of Dr. Swinson's testimony been to provide a forensic psychiatric profile or risk assessment of M.R., I would share some of the Crown's concerns. But the utility of his testimony lay in the diagnosis of OCD and his explanation of that disorder. Dr. Swinson's expertise in that area, which was unchallenged, demonstrated M.R.'s particular vulnerability to PC Boyce's interrogation approach. In response to a question of mine in submissions, the Crown conceded this vulnerability.

[106] It is also important to recall that M.R. had been diagnosed with that disorder years earlier.

VIII. Independent Evidence and M.R.'s Credibility

Evidence of P.M., Ms. Busel and Dr. Koczerginski in Context

[107] Crown counsel urged me to find that M.R.'s utterances to P.M., Ms. Busel and Dr. Koczerginski in the ER on April 9, which were independent of his statement to police, confirm the allegations. Setting aside the fact that M.R.'s utterances to his wife and Dr. Koczerginski were ambiguous and assuming that Ms. Busel's notes are accurate, the Crown's submission ignores the context in which those utterances were made. Throughout the weekend, M.R. had been subjected to his wife's persistent accusations while in the grips of OCD-driven self-doubt. This led him to wander the streets all night contemplating suicide. M.R.'s utterances are not reliable statements about the truth of the matter.

M.R.'s Credibility

[108] Crown counsel urged me to discard M.R.'s testimony. She submitted that he was inconsistent about the origin of his beliefs about what A.R.M. did and said. For instance, whether he heard her say "daddy broke in mouth" or whether P.M. had told him about that. In my view, such equivocations are more likely the product of confusion than dishonesty.

[109] The Crown also argued that I should consider those parts of M.R.'s statement to police that are original as confirmatory. One example is his apparently independent association of the "white trumpet" with semen when PC Boyce had suggested it was a reference to his penis. Another example is M.R.'s mention of "rain," which neither P.M. nor PC Boyce had mentioned. (He then agreed with PC Boyce's suggestion that it was a reference to semen). A third example is M.R.'s belief that A.R.M. was "walking funny" on the "last day."

[110] This type of reasoning demonstrates confirmation bias. In point of fact, M.R. told PC Boyce that it might have been P.M. who thought the white trumpet was semen. And whether M.R. was the first to relate the concept of "rain" to police really says nothing about its meaning. It is simply an example of something that A.R.M. might have said and that M.R. may have observed but which P.M. either did not or forgot. Finally, if in fact A.R.M. was "walking funny," P.M. would have undoubtedly noticed. [39] At that time, P.M. was convinced that M.R. had abused A.R.M. and was paying very careful attention to her.

[111] I decline to consider M.R.'s interest in being acquitted as a factor in weighing his credibility. While Murray and subsequent cases are permissive in this regard, they stand as cautionary tales. The trial judge's improper assumption that "the appellant would lie to secure his acquittal" was one of the reasons the Court of Appeal ordered a new trial in Murray. [40]

[112] While I had some concerns with M.R.'s evidence – in particular his descriptions of obsessive behaviour that his wife had never noticed – it was capable of raising a reasonable doubt in all the circumstances.

IX. Conclusion

[113] The Crown has not proved the allegations beyond a reasonable doubt and M.R. is entitled to an acquittal.

Released: July 16, 2015

Justice P. F. Band

Footnotes

[1] Transcript of Police Interview dated April 9, 2013, at p. 193 (the "transcript")

[2] , [1997] 115 C.C.C. (3d) 225 (Ont. C.A.)

[3] See R. v. Pearce, [2014] M.J. No. 202 (C.A.) and R. v. McAloon, [1959] O.R. 441 (C.A)

[4] At paras. 34-35

[5] Ibid, at para. 47

[6] Ibid, at para. 42

[7] Ibid, at paras. 49 & 57

[8] Ibid, at para. 50

[9] Ibid, at paras. 74 & 78

[10] Ibid, at paras. 58 & 60; see also R. v. Hoilett, [1999] O.J. No. 2358 (C.A.)

[11] Ibid, at para. 42; see also B. Cutler et al., "Interrogations and False Confessions: A Psychological Perspective" (2014), 18 C.C.L.R. 153

[12] [2015] O.J. No. 2905; see also R. v. M.J.S, [2000] A.J. No. 391 (Prov. Ct.), and B. Cutler et al., supra

[13] Oickle, supra, at para. 47

[14] R. v. C.T., supra, at para. 22; see also R. v. Hart, 2014 SCC 52, [2014] S.C.J. No. 52 at para. 102 and R. v. Pearce, supra, at para. 56

[15] As I quote from the transcript throughout, I have removed verbal tics such as "um" and "mm-hmm" as well as word or phrase fragments. Any emphasis is mine.

[16] Transcript, at pp. 27-28

[17] Ibid, at pp. 37-38

[18] Ibid, at p. 47

[19] Ibid, at pp. 53-58

[20] Ibid, at pp. 85-86

[21] Ibid, at pp. 112-113

[22] Ibid, at pp. 139-142

[23] Ibid, at pp. 155-161

[24] Ibid, at pp. 164-165

[25] Ibid, at p. 166

[26] Ibid, at p. 168

[27] Ibid, at p. 169

[28] Ibid, at p. 177-178

[29] Ibid, at p. 179

[30] Ibid, at pp. 183-186

[31] Ibid, at pp. 207-208

[32] Ibid, at pp. 226-227

[33] Ibid, at pp. 243-249

[34] Ibid, at pp. 264-267

[35] Ibid, at p. 152

[36] Ibid, at pp. 153, 156, 172, 185, 189, 190, 193, 202, 206, 267, 270, 276

[37] Ibid, at p. 202; see also p. 206

[38] This sort of dilemma has been the object of criticism in the authorities cited above.

[39] In response to a question of mine, Crown counsel submitted that P.M.'s testimony was about the weekend of April 5-7 and that M.R. was referring to a time in the past. This was incorrect: see p. 205 of the transcript of M.R.'s statement.

[40] Supra, at para. 14