Court Information

Court: Ontario Court of Justice

Date: April 10, 2017

File Nos.: 13-12774, 13-11230, 14-2751

Location: Brampton

Parties

Between:

Her Majesty the Queen

— AND —

Salvatore Formusa

Before the Court

Justice: Patrice F. Band

Counsel:

• Mr. C. Walsh, counsel for the Public Prosecution Service of Canada
• Mr. P. Cooper & Ms. L. Jørgensen, counsel for the defendant Mr. Formusa

Nature of Proceedings

Reasons as to Voluntariness and Admissibility of Mr. Formusa's Statements to Police

I. INTRODUCTION

[1] Mr. Formusa and his co-accused, Richard Avanes were arrested at the same time for offences related to the importation of a large quantity of cocaine. After speaking to duty counsel, Mr. Formusa was interviewed by RCMP Detective Cowan in two sittings.

[2] Mid-way through the trial, the Crown applied to introduce Mr. Formusa's statements as part of its case – principally for issues relating to his credibility. Based on the clear evidence led at trial, Mr. Formusa was not truthful with Det. Cowan – particularly about his role in the importation and his relationship with Mr. Avanes.

[3] Mr. Formusa opposed the Crown's application and a voluntariness voir dire was held. The Crown relied on the evidence of Det. Cowan. Mr. Formusa did not testify or call any other evidence.

[4] The issues were whether Mr. Formusa's statements were the result of improper inducements or oppressive circumstances. There was no issue as to the operating mind requirement or police trickery.

[5] I ruled that the Crown had proved that Mr. Formusa's statements had been given voluntarily beyond a reasonable doubt, with reasons to follow. These are my reasons.

II. FACTS

The Investigation

[6] I have described the facts of the case in significant detail in two prior rulings.[1] The following summary of additional facts should be read in light of those rulings.

[7] Mr. Formusa was charged for his role in the importation of a quantity of automotive tire-changing machines in which Canada Border Services Agents working in the Port of Halifax discovered 50 kg of cocaine.[2] The machines were packed in a number of boxes and crates within a shipping container. The cocaine had been secreted inside the legs of some of the machines.

[8] The ensuing RCMP investigation included wire-taps of Mr. Formusa's telephone, surveillance of his comings and goings and a judicially authorized search of his trailer. It culminated in a "controlled delivery" of the shipment.

[9] The investigation revealed that Mr. Formusa had been directly involved in having the tools shipped from Panama to his trailer, which was close to the Toronto Food Terminal, where he worked. He retained Willson International, a customs brokerage service ("Willson") to facilitate the importation. A short time before the scheduled delivery, Mr. Formusa directed TMT, a trucking company, to deliver it to a different address: a warehouse in Vaughan.

[10] In the weeks leading up to the delivery, Mr. Formusa was communicating by phone and other electronic means with Mr. Jankovic and Mr. Avanes. He referred to Mr. Avanes as "brother" and "Richard." Two days before the delivery, he spoke to Mr. Avanes' girlfriend Marta. He called her "Bella." On the eve of the delivery, he and Mr. Avanes met at a restaurant.

[11] On the date of the delivery, Mr. Formusa and Mr. Avanes attended the Vaughan warehouse and began to unload the crates and boxes from the shipping container with a forklift. Before they were done, the forklift ran out of propane. When they left the warehouse to refill the propane tank, they were arrested in the parking lot. They had not yet finished unloading the container and had not opened any of the crates or boxes.

[12] Mr. Formusa is a man in his 50s. On the wire-taps, he can be heard speaking to the staff at the customs brokerage and trucking company, as well as Mr. Avanes and Mr. Jankovic. In calls with Willson and TMT, Mr. Formusa sounds friendly. When advised of delays in the treatment and delivery of the shipment, he is accommodating. In calls with Mr. Avanes and Mr. Jankovic, he sounds friendly and earnest. While he does not appear to be a sophisticated or highly educated individual, he seems competent and organized.

The Statements and Their Circumstances

[13] Mr. Formusa was advised of his rights and cautioned upon arrest at approximately 5:30 p.m. He spoke to Duty Counsel for approximately 10 minutes, between 6:18 and 6:28 p.m.

[14] Interview #1 began at 7:19 p.m. and ended at 8:06 p.m. Interview #2 began at 8:57 p.m. and ended at 9:06 p.m.

Interview #1

The Atmosphere

[15] At the outset, Det. Cowan offers Mr. Formusa a glass of water, which he accepts. He then thanks her "for being … very nice to me." At various times throughout the interview, Mr. Formusa indicates that he appreciates the way he has been treated. At one point, when discussing his work in the fruit and vegetable industry, the two of them have a brief laugh about pineapples. As the interview is about to end, Det. Cowan tells Mr. Formusa "I think that's it now okay." Mr. Formusa says "I appreciate it," and thanks her again for the water. Throughout, Det. Cowan's tone of voice is calm and respectful.

[16] At times during the interview, Mr. Formusa indicates that he is worried, nervous or scared and that he wants to know "where this is going." He appears nervous and at times he stutters.

Topics Mr. Formusa Discusses

[17] Throughout the interview, Det. Cowan asks Mr. Formusa about various topics based on the investigation. Mr. Formusa answers some questions and not others. For instance, he answers questions about his work at the Food Terminal and his forklift driver's license. He also answers questions about his attendance at the warehouse. He initially declines to answer questions about Mr. Avanes. He later does so again, indicating a wish to speak to counsel again. While he later admits to knowing "Richard" he declines to tell Det. Cowan who introduced them to each other. Likewise, Mr. Formusa declines to answer questions about his relationship with a customs broker. He adds that he does not "really want to answer much more."

[18] A number of times throughout the interview, Mr. Formusa says that he knows that the matter is serious and that Det. Cowan "has a job to do." When Mr. Formusa declines to answer a question, it is usually accompanied by an explanation. He feels he does not know enough about the situation, he wishes to speak to a lawyer or to have a lawyer present at a future time.

Cautions and Potential Inducements

[19] A short time into the interview, Det. Cowan provides Mr. Formusa with a caution again. In doing so, she states "but if this has nothing to do with you, then I guess this is kind of your opportunity … I have a job to do." Mr. Formusa indicates "Yes I know."

[20] Det. Cowan indicates that the courts are the decision makers. She seeks the truth. She says that she's there to listen to Mr. Formusa's side and adds "if you're here wrongly, then I'll release you and you can be on your way if that's the case."

[21] Mr. Formusa responds: "Well I don't think it's a situation that is that simple…." He adds that "I wanna be careful because you do have a job to do and I don't want to say anything unless a lawyer tells me exactly what might be going on. I want a third opinion kind of thing."

[22] A short time later, Mr. Formusa adds:

…that's why I want to talk to a lawyer because I don't know where this thing's gonna go, where we're going with this thing, and ah before I go further and I know that this thing is not gonna go away and there is no fairy godmother here, if this is as serious as this is I'm not walking out any door of course until your investigation is done and I see a lawyer and know this like where I stand…

[23] Moments later, Det. Cowan talks about "good people" and "bad people" and tells Mr. Formusa that sometimes those who are not responsible "end up going the whole gauntlet because they end up being forced to take responsibility." She adds that this is Mr. Formusa's opportunity to tell her if he had "nothing to do with this."

[24] Mr. Formusa says that he knows the situation is serious, that Det. Cowan is "putting a case together" and that he does not want to say anything until he sees a lawyer.

[25] During the remainder of the interview, Mr. Formusa says similar things about the severity of the matter and his understanding of Det. Cowan's role.

[26] Towards the end of the interview, Mr. Formusa says that he knows that the situation "doesn't really look good" and later adds that Det. Cowan is "a professional at putting things together."

Interview #2

[27] Interview #2 is more confrontational in tone and substance. Det. Cowan confronts Mr. Formusa about lying to her. He is more adamant when asserting his wish to remain silent and to speak to counsel.

[28] Mr. Formusa indicates early on that he is not comfortable speaking to Det. Cowan and tells her he will not answer any more questions. He nonetheless answers certain questions about his interactions with Mr. Avanes at the beginning. At the end, he also admits that Willson "rings a bell" and that this is why he wants to speak to counsel. Det. Cowan stops the interview at that point.

[29] In the interim, Det. Cowan tells him that he is lying to her. She tells him that now is his chance to "Save Sal." She quickly adds that "the truth is the only avenue." He responds that he wants to see a lawyer and ultimately "the courts will decide where this is going." Det. Cowan tells him that a lawyer is "not going to help you here at this moment right now." Mr. Formusa's response is "…once I see a lawyer … that will help me put things in perspective."

[30] Det. Cowan then tells Mr. Formusa about the preliminary inquiry and trial, but says that "you're not going to get your opportunity to stand on the stand and say this is really what happened, you're all mistaken. This right here is that opportunity. If we're mistaken that you're not the drug dealer and drug importer that we think you are, if that's not your role, this is your opportunity."

[31] Mr. Formusa answers "I know it's not my role so … and I want to talk to a lawyer and let the courts decide or whatever…."

Det. Cowan's Testimony on the Voir Dire

[32] Det. Cowan was cross-examined at some length. Much of it focused on her preparation for the voir dire. She had marked up or tabbed portions of her notes and copies of the statement transcripts. In particular, she had indicated many of the times when Mr. Formusa mentioned his wish to speak with a lawyer with an "L".

[33] I saw nothing wrong with Det. Cowan preparing to testify on this voir dire. I did not find that the manner in which she did so affected her credibility or prejudiced Mr. Formusa. In any event, the facts are not in dispute. The Defence's approach was to argue, based on the videos and transcripts, that Mr. Formusa had been induced to speak to Det. Cowan or that his will had been overborne in all the circumstances.

III. APPLICABLE LEGAL PRINCIPLES

[34] For a statement made to a police officer to be admissible, it must be voluntary. The onus is on the Crown to prove voluntariness beyond a reasonable doubt.

[35] In reviewing a statement to police, the judge must consider all relevant factors. These include oppression, threats or promises (i.e. inducements), the operating mind requirement, and police trickery.[3] The individual characteristics of the accused are also relevant.

Inducements

[36] In R. v. Oickle, the Supreme Court of Canada explained that statements will be involuntary when they are the result of "fear of prejudice or hope of advantage." As the Court explained, "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."[4]

[37] However, the Court explained that not all inducements necessarily lead to a reasonable doubt about voluntariness:

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 interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.[5]

[38] In other words, there must be a nexus between the inducement and the statement.[6] The Court went on to explain that

the pressure of intense and prolonged questioning may convince a suspect that no one will believe his or her protestations of innocence, and that a conviction is inevitable. In these circumstances, holding out the possibility of a reduced charge or sentence in exchange for a confession would raise a reasonable doubt as to the voluntariness of any ensuing confession.[7]

Oppression

[39] Oppressive circumstances can arise where the police conduct is so distasteful as to lead a suspect to confess in order to escape the situation. Alternatively,

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.[8]

[40] Factors that can create an atmosphere of oppression include "depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time."[9]

[41] While a statement can be excluded solely due to utterly intolerable conditions or strong inducements, the concepts of inducements and oppression are interrelated. Where a suspect is very poorly treated, a minor inducement might turn out to be impermissible. By contrast, "where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary."[10]

[42] As the Court wrote, "the absence of oppression is important not only in its own right, but also because it affects the overall voluntariness analysis."[11]

Voluntariness and the Right to Silence

[43] The notion of voluntariness overlaps with the right to silence. The accused must at all times be able to make a meaningful choice whether or not to speak to the police.[12] Whether he was cautioned and the number of times he asserts his right to silence are among the relevant circumstances that must be considered.

IV. ANALYSIS

Oppression

[44] I begin with oppression because its presence or absence affects the overall voluntariness analysis.

[45] The atmosphere created by Det. Cowan cannot be said to be oppressive. Despite Mr. Formusa's understandable fear and nervousness, the circumstances were simply not such as to lead him to speak in order to escape the situation. Interview #1 lasted less than 50 minutes. Det. Cowan's tone and manner were professional and calm. She provided Mr. Formusa with a glass of water. He indicated that he appreciated how he was being treated. While Interview #2 was more confrontational it was not aggressive, intimidating or relentless. The two interviews were not prolonged.

Inducements

[46] While the Crown did not concede the presence of inducements, he acknowledged that it would be reasonable to find that they were present.

[47] I find that Det. Cowan presented Mr. Formusa with inducements – some gave reason for "hope of advantage" and one, arguably, could have given rise to "fear of prejudice."

Hope of Advantage

Interview #1

[48] First, Det. Cowan told Mr. Formusa that she would release him if he was there "wrongly." Second, she told him it was time to "Save Sal." The first presents a quid pro quo: it is a clear offer of advantage in exchange for a statement. The second, by virtue of its proximity to a reference as to the importance of telling the truth, is more in the nature of a moral inducement. It is beyond Det. Cowan's control and lacks the quality of a quid pro quo.

[49] The first inducement is of most concern. A police officer who makes such an offer does so at her own peril. In this case, however, it is clear that Mr. Formusa's decision to answer questions was not induced by Det. Cowan's offer. He knew and stated that there was no "fairy god mother," that he was not going to be "walking out any door" and that the courts would ultimately have to decide the case.

Interview #2

[50] Det. Cowan again told Mr. Formusa that it was his chance to "Save Sal." But shortly afterwards, she advised him of the potential jail sentence that he could face and asked him if that is how he wanted "to spend his retirement." He said "no" and she said "then Save Sal." While there is technically no quid pro quo, since the consequences are beyond her control, this could nonetheless appear to be an inducement.

[51] Its proximity to her denigration of the role of counsel is relevant. So, too, is Det. Cowan's clearly wrong statement that Mr. Formusa would not have the opportunity to testify as to his innocence in court. Again, an officer who makes such statements does so at her peril. A suspect could be led to believe that for all intents and purposes, the criminal justice system consists only of police officers or, alternatively, that his or her protestations of innocence will not be believed and that a conviction is inevitable.

[52] However, Mr. Formusa continued to refuse to answer her questions, and indicated that he wanted to "let the courts decide."

Fear of Prejudice

Interview #1

[53] Defence counsel pointed to Det. Cowan's single reference to people who "go the whole gauntlet" because the term can be a metaphor for a violent ordeal. There is no evidence that Mr. Formusa understood it that way. Nor, in my view, could he have in this context. Det. Cowan did not make reference to prison or to violence of any kind. Mr. Formusa's response indicates that he took her to mean that the matter was serious. It also bears mentioning that this reference did not involve a quid pro quo.

Mr. Formusa's Desire to Speak to Counsel and Remain Silent

[54] Mr. Formusa told Det. Cowan that he did not wish to answer questions – at least not without counsel present – and that he wished to consult counsel again. He did so on numerous occasions. Defence counsel advised that Mr. Formusa indicated his wish to consult with counsel 16 times.

[55] Det. Cowan cautioned Mr. Formusa upon arrest, and again during both statements. She persisted in asking Mr. Formusa questions for less than 50 minutes during Interview #1 and less than 10 minutes in Interview #2.

[56] Det. Cowan did not embark upon a campaign of presenting Mr. Formusa with the police's case in order to keep trying to convince him to talk no matter what he said.

[57] Mr. Formusa answered some questions and not others. Those he did not answer tended to be those closest to the core of the allegations: his relationship with Mr. Avanes and the depth of his role in the importation (through Willson). This reflected Mr. Formusa's ability to make meaningful choices.

V. CONCLUSION

[58] In all the circumstances, I have no doubt that Mr. Formusa was able to make meaningful choices as to whether to answer questions and, if so, which ones. His will was not overborne by inducements, an oppressive atmosphere or the officer's manner of interrogation – alone or in combination.

[59] Mr. Formusa is a man in his 50s who appears to be of at least average intelligence. He understood the seriousness of the situation. He knew that he was not going to be released by Det. Cowan and that the matter was headed to court.

[60] The atmosphere of the interviews was not oppressive. Mr. Formusa was treated properly. While Det. Cowan offered some inducements, they were minor in the circumstances and did not result in Mr. Formusa answering her questions. Even where they involved a quid pro quo, they were not of such force as to render Mr. Formusa's answers involuntary. Mr. Formusa was selective in his responses.

[61] Likewise, while parts of Det. Cowan's approach were risky, they did not take place in the context of interviews that were aggressive, intense, intimidating or prolonged. Mr. Formusa remained selective as to whether and how to respond, and maintained his sense that the courts could decide the matter.

[62] I am satisfied beyond a reasonable doubt that Mr. Formusa's statements to Det. Cowan were made voluntarily.

Released: April 10, 2017

Justice Patrice F. Band

Footnotes

[1] See [2015] O.J. No. 5618 and [2016] O.J. No. 3236.

[2] Drago Jankovic was arrested some two weeks later.

[3] R. v. Fernandes, 2016 ONCA 772, at para. 23, summarizing R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3.

[4] At para. 57.

[5] At para. 49.

[6] At para. 84; see also Fernandes, supra, at para. 29.

[7] At para. 49.

[8] At para. 58.

[9] At para. 60.

[10] At para. 81.

[11] At para. 87.

[12] At paras. 24-26; see also R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at paras. 35 and 53.