Court File and Parties
Date: December 13, 2016
Court File No.: Central East – Newmarket – 4911-998-14-07177
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Gaga Endeladze & Giorgi Jimsheleishvili
Heard: December 12, 2016
Before: Justice John McInnes
Ruling on Application of Common Law Confession Rule
Released: December 13, 2016
Counsel:
- Marina Guirguis, counsel for the Crown
- Michael Simrod, counsel for Mr. Endeladze
- David Goodman, counsel for Mr. Jimsheleishvili
McInnes J.:
[1] The defendants are jointly charged with one count of possessing a controlled substance. Their trial began before me yesterday, December 12, 2016. On the basis of alleged violations of their ss. 8 and 9 Charter rights, the defendants seek exclusion of the small quantity of heroin York Regional Police investigators found in the centre console of the motor vehicle they were in when they were arrested. The central issue on the Charter application is whether the police had reasonable grounds to arrest them.
[2] By agreement of the parties, this matter has proceeded by way of a blended trial/Charter voir dire. I have already heard the evidence of Det. Cst. Varian Paron and part of the evidence of Det. Cst. Dan Moore, both of whom testified about the events preceding, and the grounds for, the arrest. The evidence was interrupted yesterday when Mr. Simrod rose to object just as Det. Cst. Moore was about to recount something the defendant Gaga Endeladze said to him during an interaction that took place in 2012 in connection with an unrelated investigation.
[3] Mr. Simrod submitted that before the officer could repeat what the defendant said to him in 2012 the Crown had to prove the utterance was voluntary. Crown counsel responded that a voluntariness voir dire is only required when the Crown leads an accused person's statement for the truth of its contents as part of its case at trial whereas this utterance is only tendered as part of the officer's grounds for arrest and not as substantively admissible trial evidence. I advised counsel I required more detailed submissions and stood the matter down.
[4] As counsel and I subsequently discovered, this very issue was recently addressed in R v Paterson, 2015 BCCA 205, 324 CCC (3d) 305, leave to appeal granted, [2015] SCCA 360 (the Supreme Court of Canada heard the appeal on November 2, 2016 and reserved its decision). In Paterson the accused admitted smoking marihuana and that there were "roaches" in his apartment as the police entered it in response to a 911 call. They searched the premises and found drugs and weapons. At trial Mr. Paterson argued the search violated his s. 8 Charter rights. The Crown relied on the utterance as part of the police grounds justifying it.
[5] On appeal, Paterson argued the trial judge had erred by failing to hold a voir dire to determine whether the utterance was voluntary before receiving it as evidence of the police grounds for the search. In contrast to the present case, in Paterson the issue was evidently not raised at trial: Paterson, at paras. 22 to 27; see trial decision, 2011 BCSC 1728.
[6] Writing for the British Columbia Court of Appeal, Bennett J.A. noted that the question of "whether the trial judge was obliged to find that the statements made to the police by Mr. Paterson were voluntarily made before he relied on them in the Charter voir dire … has not been considered at an appellate level" and consequently "[i]t is necessary to go to first principles to ascertain an answer": Paterson, paras. 29 to 31.
[7] Bennett J.A. then proceeded with a detailed exposition of the history of the common law confession rule: Paterson, paras. 31 to 56. This led her to the following conclusions:
proof of voluntariness is required to ensure trial fairness and that false confessions are not admitted;
the confessions rule applies to confessions tendered by the Crown or used for cross-examination to prove an element of the offence, consciousness of guilt, or to impeach credibility; and,
when admitted, confessions are powerful evidence emanating from the mouth of the accused and presented to the trier of fact on the ultimate question of guilt or innocence. That is why the burden is on the Crown to prove the voluntariness of those statements beyond a reasonable doubt.
[Paterson, para. 57]
[8] Bennett J.A. then noted that in contrast to confessions tendered as trial evidence:
[s]tatements of an accused admitted on a Charter voir dire, on the other hand, may never be heard by the trier of fact. The statements are considered to assess matters such as the subjective and objective beliefs of an officer, primarily in the context of a search. They could also include statements made to the Court or a judicial officer setting trial dates in an application for a stay of proceedings for unreasonable delay. In a Charter voir dire, the burden generally rests with an accused to demonstrate a breach of his or her Charter rights, the exception being a warrantless search. In either case, the burden is on a balance of probabilities. The issue on a Charter voir dire is not the guilt or innocence of the accused, but rather state conduct, and whether the admission of certain evidence would bring the administration of justice into disrepute.
None of the uses of a statement on a Charter voir dire engage the need of the protection of the confessions rule. In addition, as argued by the Crown, this does not leave an accused without protection against improper state conduct. For example, if the statements relied on were obtained through force or other unreasonable means, there are protections within the scope of the Charter itself such as s. 7 (as noted in Hebert and subsequent decisions, including Singh), or through provisions of the Code that prohibit torture for the purpose of obtaining a statement (see s. 269.1). [Paterson, paras. 58 and 59]
[9] Bennett J.A. concluded that requiring the Crown to prove voluntariness of an utterance relied on as grounds for a search or arrest would be untenable "as there are a variety of situations in which it is reasonable for police to rely on statements, even if they are involuntary". One example she did not refer to but well could have is the fact that every day police legitimately rely on involuntary statements in investigating drinking and driving offences. It is accepted routine for police to stop drivers and ask them whether they have been drinking. The police are allowed to rely on their answers in forming the grounds to make a demand for an approved screening device or a breath sample. Not only are these answers not voluntary, but, arguably, they are compelled. The law distinguishes between the use of such evidence for the formation of grounds as opposed to as evidence of guilt: R v Orbanski; R v Elias, 2005 SCC 37.
[10] Not surprisingly, then, the British Columbia Court of Appeal ultimately concluded that "requiring the Crown to prove statements voluntary prior to their admission in a Charter voir dire would wholly alter the practice of criminal law" by introducing a contradictory onus on a different standard of proof into the Charter voir dire where "[c]urrently, the burden is on an accused to prove a breach of their Charter rights on a balance of probabilities." In the result, Bennett J.A. concluded, the Crown does not have to prove the voluntariness of an accused's statement prior to its admission on a Charter voir dire: Paterson, supra at paras. 62 and 63.
[11] Strictly speaking, I am not bound by Paterson and it is possible the Supreme Court will reach a different conclusion when it releases its decision. For the time being, however, Paterson stands as the considered decision of a senior Canadian appellate court speaking through an experienced and distinguished criminal law jurist on a point of first impression, the very same point raised before me. From the point of view of stare decisis, Paterson is a very highly persuasive authority, one that I should follow absent a compelling reason not to.
[12] I see no compelling reason not to follow Paterson and, indeed, I agree with its conclusions. Consequently, I rule the Crown may elicit the utterance through Det. Cst. Moore without first proving its voluntariness.
[13] This does not leave the defence without a remedy if it is alleged the utterance is in some way linked to police abuses. It is still open to the defence to argue the police conduct associated with the utterance violated s. 7 or some other Charter right. See, for example, R v Wong, 2015 ONCA 657. Further, in the present case the defence is of course entitled to cross-examine the officer about the circumstances surrounding the utterance and to make arguments in closing submissions concerning the weight, if any, the utterance has in supporting the grounds for arrest.
Signed: Justice John McInnes
Released: December 13, 2016