WARNING

The court hearing this matter directs that the following notice 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Date: October 28, 2015

Court File No.: 14-8440

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

R.C.

Trial held before: Justice Paul F. Monahan

Voir Dire heard on: September 10 and 11, 2015

Reasons for Decision on the Voir Dire Released on: October 28, 2015

Counsel:

S. Ferrone for the Crown

C. Assie for the Defendant

MONAHAN J.:

Introduction

[1] A voluntariness voir dire and some of the trial evidence in an ongoing trial was held before me on September 10 and 11, 2015.

[2] R.C. is charged with sexual assault contrary to section 271 of the Criminal Code of Canada (the "Code") and touching for a sexual purpose of a person under the age of 16 contrary to section 151 of the Code. The offences are alleged to have taken place on or about May 25, 2014.

NOTE: This judgment is under a publication ban described in the WARNING page(s) at the start of this document. If the WARNING page(s) is (are) missing, please contact the court office.

[3] The voir dire was held during the ongoing trial. There were two witnesses on the voir dire: Constable Saini and Constable Wallace, both called by the Crown. The defence called no evidence on the voir dire.

[4] A videotaped interview of R.C. with Constable Wallace was held on June 2, 2014. The videotape was played for the Court and a transcript of that interview was provided to the Court as an aide memoire. It is the videotaped statement that forms the subject matter of the voir dire.

Position of the Parties

[5] The Crown submits that it has proved the voluntariness of the statement beyond a reasonable doubt. The Crown submits that there were no promises, inducements or threats. The Crown points out that the statement must be read in its entirety. In particular, the Crown submits further as follows:

(i) The Crown submits that R.C.'s demeanor on the video is relaxed and comfortable. The Crown points out that R.C. jokes and laughs from time to time throughout the interview. The Crown submits that R.C. seeks to engage the officer in personal discussions throughout the interview; and

(ii) That R.C. is fully informed and that he willingly and voluntarily speaks to the officer. The Crown submits that throughout the interview, R.C. indicates a desire to speak to the officer and to tell his side of the story.

[6] The defence's position is that there is a reasonable doubt as to the voluntariness of the statement. An overview of the defence's submissions is as follows:

(i) The defence acknowledges that there is no evidence of oppressive conduct or police trickery or the like. The defence submits that this is a case of an inducement offered by a person in authority (Constable Wallace) which, together with other factors, raises a reasonable doubt about the voluntariness of the statement;

(ii) As concerns the inducement point, the defence relies on, among other things, the following statement by Constable Wallace to R.C. which occurs close to the beginning of the interview "so the reason that we went through the way that I went through is because I need this to be um fair. I'd like to know what, what you what (sic) happened and from your point of view what's happened. I've spoken to a lot of people about this. Um, I just want to get to the bottom of it… and, and ah will (sic) make our decisions after on what happens okay". Constable Wallace was cross-examined on the voir dire about this point and he acknowledged that he was stating that depending on what R.C. said, Constable Wallace was leaving open the possibility that the charges might not proceed against R.C.. The defence submits that this was an improper inducement which raises a reasonable doubt concerning the voluntariness of the statement. The defence submits that a similar inducement was offered at page 58 to 60 of the transcript when Constable Wallace told R.C., in part, that he could not "make up his mind or decide what happened until I get the full picture but it is your choice". Again, the defence submits that this was an improper inducement considered in the context of the interview as a whole and the other comments by Constable Wallace; and

(iii) the defence also submits that there was a violation of the right to counsel. At the outset of the interview, Constable Wallace says to him "You've spoken to duty counsel. I don't want to know what they said." to which R.C. said "yeah he, he, he [sic] speak to him over the phone… but it's hard to hear in that room… it echoes." The defence submits that this amounted to "special circumstances" and that the officer was obliged to ensure that R.C. understood his right to counsel. The defence did not bring an application to exclude the statement on the basis of a right to counsel violation. Defence counsel submits that he could have established a violation of the right to counsel contrary to s. 10(b) but that he would not have been successful in excluding the evidence under s. 24(2) of the Charter. He submits that the alleged violation can and should be considered in the voluntariness context as in effect muting or undermining the Crown's submission that voluntariness has been proved beyond a reasonable doubt.

Facts

[7] Constable Saini testified on the voir dire that he arrested R.C. on June 2, 2014.

[8] R.C. was apparently advised by Constable Saini that he was being charged with sexual assault and sexual interference. The allegations relate to R.C. allegedly touching the vagina of a child who was almost 4 years of age, the daughter of family friends of R.C.

[9] I say "apparently advised" as the Crown failed to have Constable Saini testify as to what he told R.C. he was being arrested for. Constable Saini testified that immediately prior to the arrest, he had spoken to Constable Wallace and reviewed an occurrence report both of which indicated to him that R.C. was "arrestable" for sexual assault.

[10] According to the statement of R.C. which is the subject matter of the voir dire, R.C. told Constable Wallace that he was told by Constable Saini that he was being arrested for sexual assault and sexual interference (see page 122 of the transcript of the statement).

[11] Accordingly, notwithstanding the failure of the Crown to properly tender the evidence of Constable Saini on this issue, the only reasonable inference on the evidence on the voir dire is that R.C. knew he was under arrest for sexual assault and sexual interference and that it was related to his alleged conduct in relation to a three-year-old child who he knew the identity of.

[12] R.C. was advised by Constable Saini of his right to counsel and there is no issue regarding the wording of the right to counsel. He was also given a caution and a secondary caution by Constable Saini and R.C. advised the officer that he understood the caution.

[13] For some reason which appears to be another oversight concerning the evidence of Constable Saini, the precise terms of the caution were not adduced by the Crown on the voir dire but Constable Saini did say that he read the cautions he gave from his preprinted form police notebook. The Crown should have tendered the express words of the caution on the voir dire. The defence conceded the wording of the right to counsel but no such concession was given by the defence with respect to the wording of the caution which was equally, if not more, important on the question of voluntariness.

[14] During the videotaped interview, Constable Wallace did not repeat the right to counsel or the cautions given by Constable Saini but he did give an informal caution when he stated at the outset of the interview "and if any other police officer the guy who took you into the cell and, and just wrote down your information. If he said anything to you to say hey make sure you tell this guy something or tell him or anything like that I don't want that to influence you in talking to me okay". Later in the interview at page 29 Constable Wallace says "the other parts (sic) of the law is you don't have to talk to me unless you want to".

[15] The Supreme Court of Canada in R. v. Singh 2007 SCC 48 at para 31 refers to the common form of police caution as being "you are charged with… Do you wish to say anything in answer to the charge? You are not obliged to say anything but whatever you do say may be given in evidence". I note as well that the Supreme Court of Canada confirms that the absence of a caution will not compel the court to exclude a statement: referring with approval at para. 31 of Singh to Boudreau v. The King, [1949] S.C.R. 262. In addition, the Supreme Court notes that if a detainee exercises his s. 10 Charter rights to counsel, he will presumably have been informed of his right to remain silence and the overall significance of the caution may be diminished: see Singh at para 33.

[16] As indicated above, the Court does not have the wording of cautions that were given by Constable Saini to R.C.. Notwithstanding this deficiency, it seems to me that given that the officer read from standard language contained in his police notebook, the only reasonable inference is that R.C. was cautioned that he had the right to remain silent. I suspect that the primary caution he was given provided further information than this but in the absence of specific evidence as to what was read to him, I am not prepared to draw any further inference beyond finding that Constable Saini told R.C. that he had the right to remain silent.

[17] As to the secondary caution apparently given by Constable Saini, in the absence of evidence as to the language used, I draw no inference at all.

[18] I accept that whatever form the cautions took, R.C. indicated to Constable Saini that he understood the cautions given. In this regard, I find that R.C. knew from the statements of Constable Saini and Constable Wallace that he had the right to remain silent.

[19] It is an uncontested fact that a private conversation with duty counsel was then facilitated for R.C.

[20] Shortly thereafter R.C. was brought to the interview room where he was interviewed by Constable Wallace. The interview lasted from 8:14 AM to 11:12 AM on June 2, 2014 and was videotaped. The transcript of the interview is 128 pages long.

Law

[21] There is no dispute that the Crown must prove beyond a reasonable doubt the voluntariness of all statements by an accused person to a person in authority. The leading cases, among others, are R v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 and R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500.

[22] The Supreme Court of Canada stated in Oickle at paragraph 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. The trial judge should therefore consider all the relevant factors when reviewing a confession. 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." (emphasis added)

[23] The voluntariness test is "sensitive to the particularities of the individual suspect": Oickle at paragraph 42.

[24] On the subject of inducements, the Supreme Court has explained that not all inducements will lead to the exclusion of a confession. Justice Iacobucci, for the majority of Court, stated in Oickle as follows at paragraph 57:

"In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interest to confess. This becomes improper only when the inducements, standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the suspect has been overborne." (emphasis added).

[25] Justice Iacobucci in Oickle went on to say "the 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" (emphasis added): Oickle at para 57. The Supreme Court in Spencer pointed out that this comment from Justice Iacobucci was specifically in relation to inducements: Spencer at para 13.

[26] The Supreme Court in Spencer said that what occupies "centerstage" is not the quid pro quo, it is the question of voluntariness which is the overarching subject of the inquiry and that this point should not be lost in the analysis: see Spencer at para 19. Importantly, I note that the SCC in Spencer did not depart from the majority's reasons in Oickle which emphasized the importance of a quid pro quo where inducements are concerned.

[27] While recognizing that each case must be considered on its own facts, it is instructive to examine the types of inducements which have been held to be improper by higher courts. The following are some examples:

(i) The Supreme Court has indicated that an explicit statement by a person in authority to secure lenient treatment for example, an offer of a reduced charge or sentence in return for a confession, would raise a reasonable doubt as to voluntariness thereby warranting exclusion in all but exceptional cases. However, subtle or veiled threats such as "it would be better for you if you confessed" require exclusion only where the circumstances reveal an implicit threat or promise: Oickle at para 55.

(ii) The Supreme Court in Oickle (at para 52), noted that telling a mother that her daughter would not be charged with shoplifting if the mother confessed to a similar offence was improper (referring to the decision of McIntyre J. A. (as he then was) in R. v. Jackson (1977), 34 C.C.C. (2d) 35 (B.C.C.A.));

(iii) The Supreme Court in Oickle (at para 56) gave as a further example of an improper inducement as being where a police officer said "if you don't confess, you'll spend the rest of your life in jail. Tell me what happened and I can get you a lighter sentence";

(iv) In R. v. Alexis (2002), 2002 BCCA 103, 163 C.C.C. (3d) 387 (B.C.C.A.) at paras. 7 and 23, an accused person asked the police officer if a judge would reduce his sentence if he cooperated and the answer given was, in effect, "yes" namely that he would receive a 10 year sentence instead of life imprisonment. The quid pro quo element was demonstrated and the statement was excluded; and

(v) The Supreme Court of Canada in R. v. Tessier, 2002 SCC 6, [2002] 1 S.C.R. 144 reversing (2001) 2001 NBCA 34, 153 C.C.C. (3d) 361 (N.B.C.A.), agreed with the trial judge's exclusion from the evidence at trial of a statement on the basis of oppressive conduct coupled with the suggestion from police that a confession to facts which would support a manslaughter verdict would attract a lesser sentence for the accused person. There was a direct quid pro quo namely give the police a statement with facts which support manslaughter and you will get a lesser sentence.

[28] Each of the foregoing cases is instructive in demonstrating the direction from the Supreme Court of Canada in Oickle that the most important consideration in inducement cases is to look for the quid pro quo. I note that "quid pro quo" is latin for "a favour or advantage granted in return for something": see the Oxford Online Dictionary. The Merriam Webster Online Dictionary defines a quid pro quo as "something given or received for something else". It also refers to "a deal arranging a quid pro quo".

[29] The point is clear from these cases and from the meaning of the term quid pro quo that while each case must be considered on its own facts, a quid pro quo involving an improper inducement is not some vague assurance about what might or might not happen. It is the offer of a deal or arrangement for a statement. It is a promise to do something which will make a material difference to the accused in return for a statement from the accused.

Application of the Law to the Case at Bar

[30] Let me first address the right to counsel issue. Defence counsel submits that there was a violation of section 10(b) of the Charter. He bases this argument on the statement by R.C. that he had difficulty hearing duty counsel.

[31] In R. v. Bartle, [1994] 3 S.C.R. 173 at para. 19, the Supreme Court of Canada stated that "[a]bsent special circumstances indicating that the detainee may not understand the section 10(b) caution, such as language difficulties or a known or obvious mental disability, the police are not required to assure themselves that a detainee fully understands the section 10(b) caution."

[32] The statement by R.C. that there may have been some difficulty hearing the defence counsel because there was echoing in the room needs to be understood in context. Later in the interview, the accused refers repeatedly to his conversation with defence counsel and the fact that counsel had told him not to speak but that he does not want to follow this advice. There is no repeat of the point about difficulty hearing duty counsel. If there was nothing more than the statement that there was difficulty hearing duty counsel, I consider that R.C. should have been asked if he wished to have another call to counsel. I do not understand why Constable Wallace did not offer that option to R.C. when the issue was first raised. However, R.C.'s subsequent statements about his conversation with his lawyer including how the lawyer had told him not to talk to police indicate to me on this record that the hearing issues did not materially interfere with his consultation with counsel. While voluntariness is the Crown's onus (beyond a reasonable doubt), a right to counsel violation is the defence's onus (on a balance of probabilities). On this record, the defence has not established that there was a section 10(b) violation.

[33] In any event, the presence or absence of a s. 10(b) violation does not determine the question of whether the statement to police was voluntary.

[34] The defence's submission that there was no oppression or police trickery or threats is important. It does not answer the inducement question but it nevertheless accepts that the context of the interview was civilized. I would add that there is no issue in this case that R.C. was not possessed of an operating mind.

[35] I have reached the conclusion that R.C.'s statement, read as whole and considered in context, was entirely voluntary and I find that the Crown has established this point beyond a reasonable doubt. My reasons are as follows.

[36] First, I repeat again that R.C. was cautioned before the interview and during it, that he had the right to remain silent and he understood this point. Further, he had the opportunity to consult with counsel and did consult with counsel. While these are not determinative in any way of the voluntariness point, they lend some support to it and form part of the context.

[37] Second and more importantly, the principal issue on this voir dire is whether an inducement was offered and whether that inducement raises a reasonable doubt as to the voluntariness of the statement. I accept that Constable Wallace made a statement which could be interpreted as an "inducement" in a general sense when he said at the outset that he wanted to get the point of view of R.C.. As indicated above, Officer Wallace stated, in part, as follows:

"I'd like to know what, what you what (sic) happened and from your point of view what's happened. I've spoken to a lot of people about this. Um, I just want to get to the bottom of it…we'll make our decisions after on what happens okay".

[38] At page 59 of the transcript Constable Wallace stated, in part, as follows:

"so right now I got a, you have five people, I've spoken to four of them so 80 percent of what, what's happened… So I need to, in order for me to complete circle right now I got 80%, so ah, I, I can't make up my mind or decide what happened until I get the full picture of what happened. Cause ah and but it is your choice so um. Now I know you went upstairs and I know um D.M. was playing Minecraft, I think it is the game."

[39] Constable Wallace admitted that in the foregoing passages he was suggesting that he was leaving open the possibility that he may or may not proceed with the charges depending on what R.C. said. He testified that he was being truthful in this regard in that there were things that R.C. could have said to him that would have let him not to proceed with the charges. Defence counsel submits that this is the sort of inducement that the Supreme Court of Canada has said is offside and raises a reasonable doubt concerning the voluntariness of the statement. I disagree. In my view, the foregoing statements by Constable Wallace did not amount to an inducement that would support a finding that there is reasonable doubt as to voluntariness of statement. In my view, there was no quid pro quo as that term is understood in the voluntariness case law.

[40] This case is not like the examples mentioned above in Oickle, Jackson, Alexis and Tessier, where there was a clear quid pro quo. In this case, in my view there was no quid pro quo of any substance beyond saying that Constable Wallace wanted to hear R.C.'s side of the story and the police would consider it and it may lead to the case not proceeding against him and it may not. Nothing more or less was offered or agreed to. At best, the "quid pro quo" was tell me your side of the story: maybe it will help you, maybe it won't. Of course it was intended to have him make a statement but there was no deal or arrangement offered to him beyond saying it may or may not help him. There was no inducement in my view which was sufficient to raise a reasonable doubt as to voluntariness of the statement.

[41] Third, the quid pro quo question is only one part of the voluntariness contextual analysis and is not determinative. The statement as a whole must be considered in the overall context. Approaching the issue of voluntariness in this manner, it is clear to me that R.C. wanted to tell the officer his perspective on what it happened. The following passages excerpts which appear at pages 28 to 30 and 58 of the transcript are instructive in this regard:

R.C.: okay, let me ask you something when I talked to the lawyer he goes don't talk, don't say nothing.

Wallace: yeah.

R.C.: I say why, he goes it's your choice.

Wallace: Mm-hmm.

R.C.: He goes I recommend not to say nothing.

C. Wallace: "okay, I don't want to know what, what he says but (inaudible)."

R.C.: Okay, I, I never, I never got in trouble and I never have a lawyer I never spoke to a lawyer.

Wallace: yeah.

R.C.: other than a traffic ticket guy.

Wallace: yeah.

R.C.: I never spoke to a lawyer so but I watch a lot of TV and …

Wallace: okay.

R.C.: … and movies and stuff like that.

Wallace: yeah yeah-yeah.

R.C.: … in in (inaudible)I, I say to him why he goes oh no don't say nothing, oh geez.

Wallace: Okay, so it is

R.C.: I know I'm talking to you.

Wallace: yeah

R.C.: you know what I mean

Wallace: no-no

R.C.: because I have nothing to hide.

Wallace: And that's good.

R.C.: I have nothing to hide.

Wallace: So-

R.C.: you know the other officer's goes so you're entitle, I go why do I need a lawyer.

Wallace: yeah

R.C.: …I didn't do nothing wrong. He goes well it's the law you entitle

Wallace: yeah, and the other parts of the law is you don't have to talk to me unless you want to and like I told you this you're on audio and video tape.

R.C.: I want to talk to you. I want to talk to you.

(page 58)

R.C.: like I'm thinking and what the lawyer told me man and you know I'm talking, like I, I want to talk to you because I have nothing to hide and I don't know why, I don't know why I talked to that guy".

Wallace: okay. Because we want to make sure that your fulling informed.

R.C.: "I am fully informed and you know what's going on I'm not dumb… I want to tell you more I want to tell you more". (emphasis added)

[42] The above passage demonstrates that R.C. wanted to tell police his side of the story. Reading the above passage in particular and the interview as a whole, I do not believe that R.C.'s desire to tell his side of the story flowed from any inducement. The will of R.C. was not "overborne" as that term is used in the case law by any inducement and I have no reasonable doubt in this regard. To the extent that what Constable Wallace said could be interpreted as an improper inducement (and I have found that it could not), I find that it did not have the effect of overcoming the will of R.C. such that there is a reasonable doubt as to the voluntariness of the statement.

[43] Fourth, as a contextual point, I note that throughout the interview the police were courteous to R.C. and he regularly engaged during the interview in friendly banter with Constable Wallace. R.C. may have been nervous but he did not appear as such on the video. He appeared confident, friendly and joking with the officer throughout. These contextual findings support my conclusion on the issue of voluntariness.

Conclusion

[44] In my view, the Crown has established beyond a reasonable doubt that the statement was voluntary.

Released: October 28, 2015

Justice Paul F. Monahan