Court File and Parties

Ontario Court of Justice

Date: 2018-03-05

Court File No.: Newmarket 15-06243

Between:

Her Majesty the Queen

— and —

AMW

Voluntariness Ruling

Delivered: March 5, 2018

Counsel:

• Mr. Anthony Vanden Ende, counsel for the Crown
• Ms. Sarah Wilson, counsel for the defendant

KENKEL J.:

[1] Police responded to a 911 call stating that a man was choking his girlfriend. Constable Harmsen arrived and saw a woman holding a baby with marks on her neck. The woman and another male identified the accused as the subject of the complaint. PC Harmsen took the accused by the arm and arrested him for assault. The accused resisted. AMW broke free a number of times, at one point on top of the officer. Several officers assisted. Eventually AMW was placed in the police car although he continued to kick out and swear at the officers.

[2] AMW had calmed down by the time he'd reached the police station. He spoke to a lawyer. He was then interviewed by Detective Brown. The issue on this voir dire is whether the Crown has proved beyond a reasonable doubt that the statement was voluntary. I'm mindful that the evidence regarding the struggle with police also relates to one of the charges before the court. While the evidence was heard in a blended fashion, at this point I am considering the voir dire evidence for the limited purpose of this ruling only. Any findings in relation to the alleged assault on PC Harmsen will be made on the whole of the evidence at trial.

[3] The contextual inquiry into voluntariness set out in R v Oickle 2000 SCC 38 applies. There is no evidence of any inducement or promise held out by an officer to encourage the accused to make a statement. While the accused was angry at the scene and in the police car, he plainly had an operating mind throughout and was calm when the statement was taken. AMW spoke to a lawyer before he was interviewed by Detective Brown. The defence concedes there is nothing at the station or during the interview that gives rise to a concern about the voluntariness of the statement.

[4] The defence submits that the accused's change in demeanor from anger to calm shows the accused responded to threats and conduct by the officers at the scene including a threat to use a Taser. Those threats deprived the accused of his free will to choose whether to make a statement.

[5] The evidence of the officers and the video evidence shows the accused's struggle with the officers was entirely self-generated. Sgt. Woodcock did take out his Taser and he warned the accused it would be used if the accused didn't stop struggling, but the warning had no effect and the accused continued to resist. Sgt. Woodcock decided not to use the Taser. There is no evidence of any other threat or circumstance that could have affected AMW's later decision to speak with Detective Brown.

[6] AMW was not intimidated by his struggle with the officers at the scene. On the contrary, the police car video shows he continued to be defiant and belligerent. He repeatedly insulted the officer transporting him and tried to control the situation by telling the officer what to do, even telling him to take a different route to the police station. The officer was calm throughout and managed to divert the accused by asking him questions about his job. When the accused spoke about himself, he calmed down. It wasn't threats or the circumstances of the arrest that changed AMW's demeanor, but rather the calm persistence of the officer.

[7] At the outset of the interview, AMW was asked by Detective Brown whether any officer had threatened him or told him he had to make a statement to the police. AMW responded, "I haven't been threatened at all."

[8] The Crown has proved beyond a reasonable doubt that there's no threat or other circumstance that would render the statement involuntary. The statement is admissible.

Delivered: March 5, 2018

Justice Joseph F. Kenkel