Court Information

Ontario Court of Justice

Date: 2018-07-23

Court File No.: Ottawa 16-A12529

Parties

Between:

Her Majesty the Queen

— And —

Steven Bruce Conley

Before

Justice David Berg

Counsel

For the Crown: J. Ramsay

For the Defendant: D. Lamb and F. Mansour

Ruling on Voluntariness

BERG J.:

Introduction

[1] During the course of this ongoing trial, I advised counsel briefly as to my ruling on this issue and promised that these written reasons would follow. I note that it is written in the present tense despite my having already ruled from the bench.

Background

[2] On September 1, 2016, Mr. Conley was driving a large truck in downtown Ottawa. It is alleged that he was criminally negligent in the operation of that motor vehicle and thereby caused the death of a young woman, Nursat Jahal. He is also charged with a count of dangerous driving causing the death of Ms. Jahal arising out of that incident.

[3] During the course of the investigation, Mr. Conley provided an audio-recorded statement to the investigating officer, Detective Gendron. The trial has commenced and the recording is presently Exhibit A on this voir dire. Mr. Conley is requiring that the Crown prove that the statement in question was made voluntarily. Specifically, Mr. Lamb, for the defence, submits that I should find that the Crown has not proven the operating mind component of the common law test for voluntariness. Neither threats, inducements, nor oppression are grist for the mill in this voir dire.

Scope of the Voir Dire

[4] Given the manner in which the defence has framed its argument with respect to the operating mind element, it is important to understand that this is not a blended voir dire in the sense that there are no companion Charter applications before me with respect to this statement.

Defence Position

[5] Mr. Lamb has submitted that inherent in an analysis of whether a statement was made with an operating mind is the question of whether Mr. Conley was aware of the specific jeopardy that he faced at the time of providing the statement. The specific jeopardy, in this context, was whether the declarant understood what criminal or Highway Traffic Act charges could be brought against him. Furthermore, in his written submissions, Mr. Lamb stated that:

[t]his lack of awareness of any specific criminal code [sic] liability, combined with the statutory compulsion of s. 199 of the HTA raises the question of whether he would have volunteered to provide a statement had he known otherwise.

Statutory Compulsion Issue

[6] Once again, I must point out that exclusion on the grounds of statutory compulsion would be pursuant to s. 7 Charter (see, e.g., R. v. White, [1999] 2 SCR 417; R. v. Soules, 2011 ONCA 429; R. v. Roberts, 2018 ONCA 411) and that there is no such motion before me despite the inclusion of a very brief section on compelled statements in Mr. Lamb's written submissions. Moreover, there was no evidence adduced to establish that Mr. Conley spoke to Det. Gendron in the belief that he was required to do so. Therefore, the narrow question before me is if Mr. Conley was not aware, at the time he made his statement to Det. Gendron, of the specific Criminal Code and/or Highway Traffic Act charges with which he was in jeopardy of being charged, then can it be said that he made said statement with an operating mind. A brief review of the evidence relevant to that issue is called for at this point.

Evidence: First Officer on Scene

[7] Constable Abid Nasim was the first officer on scene in response to the 911-call. He testified that after securing the scene with his partner, he approached Mr. Conley, who was seated in the cab of his truck, at roughly 8:30 a.m. (i.e., more than half an hour after Ms. Jahal died) and asked if he was OK. Mr. Nasim seemed unclear whether he advised Mr. Conley as to what he would be charged with and whether he cautioned him. At one point he testified, in a fairly tentative manner, that he told Mr. Conley that he would be charged with the offence of "cause death" and that he did not have to say anything, etc. However, a little later during his examination in chief, he told the Court that he did not tell Mr. Conley that he would be charged because the investigation was still ongoing. This latter position makes much more sense in the context of what was going on at 8:30 a.m. However, it is still unclear to me if Constable Nasim actually cautioned Mr. Conley and thus, for the purposes of this analysis, I will assume that he did not do so. At any rate, he tried to talk to Mr. Conley who told the officer that he was too shook up to speak at that point. Constable Nasim described Mr. Conley at that point as "freaking out, very quiet, numb". However, he did seem to understand what the officer was saying and had no problem in speaking to him. For example, he told Constable Nasim that his supervisor would be coming to the scene and that he wanted to talk to that person. Mr. Nasim did not take a statement from Mr. Conley but did advise Mr. Conley that an investigator would be speaking to him later. His entire interaction with Mr. Conley lasted but two or three minutes.

Evidence: Second Officer on Scene

[8] The next witness who provided evidence directly relevant to the issue of voluntariness – operating mind was Constable Chabine Tucker who arrived after Constable Nasim. At one point during the investigation, Mr. Tucker hopped up onto the truck to see how Mr. Conley was doing. The officer described the accused as being shocked, in a blank state, staring forward, he did not seem to know where he was. He asked him if he was OK to which Mr. Conley responded with words to the effect that he needed to have a cigarette. Mr. Conley also made an utterance about how he had attempted to turn at the intersection. He then telephoned his supervisor. Constable Tucker did not caution Mr. Conley at any point.

Evidence: Investigating Officer – Initial Contact

[9] The investigating officer in this case, Detective Constable Bruno Gendron, was the next witness. He arrived on scene just after 9:00 a.m. and his first interaction with Mr. Conley was roughly an hour later. He approached Mr. Conley who was standing with a supervisor from his employer. Detective Constable Gendron introduced himself as the lead investigator and was given the truck's logs and inspection books by Mr. Conley. At that point, he asked Mr. Conley how he was doing. Mr. Conley responded that his employer was setting up support for him.

Evidence: Investigating Officer – Move to Police Vehicle

[10] He then asked Mr. Conley to accompany him over to his police vehicle. He explained to the Court that the reason he did this was because there were a lot of bystanders and media around the intersection and he felt there would be more privacy inside the police vehicle. Detective Constable Gendron indicated that Mr. Conley appeared to understand what was being said to him and responded appropriately.

Evidence: Caution and Rights to Counsel

[11] By 10:13 a.m., the two men were in the police vehicle. Detective Constable Gendron apparently then read Mr. Conley his rights to counsel, cautioned him and also gave him the secondary caution. He advised Mr. Conley that he could be charged under the Highway Traffic Act or the Criminal Code. It was the detective's evidence that no decision had been made at that point as to whether Mr. Conley would be charged. While he was being read his rights to counsel, Mr. Conley asked if he would be facing jail if he was found guilty. The officer finished reading out the cautions and rights and then responded by stating that under the Criminal Code and the Highway Traffic Act, jail could be a sanction as also could a fine. Mr. Conley declined to speak to a lawyer. He then provided the audio-statement that is the subject of this voir dire.

Evidence: Cross-Examination of Detective

[12] In cross-examination, Detective Constable Gendron testified that when he explained the possibility of a jail sentence in response to Mr. Conley's question, he also told him that he could not say what charges might be brought against him as he did not even know at that point if he would be charged at all.

Analysis of Audio Recording

[13] It is confusing then to listen to the opening few seconds of the audio-recording in question. Detective Constable Gendron commences the interview as follows:

I am Detective Gendron with the Ottawa Police Collision Investigation Unit. We're September 1, 2016. I'm here with Bruce Conley regarding a fatal collision that occurred at the intersection of Laurier Street and Lyon in the City of Ottawa. The case number its 2016-222225. I'm presently in the CIU vehicle with Bruce and Bruce agreed to have our conversation, interview, audio recorded. Bruce has been cautioned, offered legal assistance, Legal Aid assistance and declined at this time. He was explained the possible charge that could be involved in this collision and Bruce will tell me what happened this morning.

The recording continues in a question and answer format.

[14] Given Detective Constable Gendron's detailed viva voce evidence on this point, one way that I can reconcile this passage from the audio-recording with that evidence is to find that when he referred to "the possible charge that could be involved in this collision" he was actually referring to his having advised Mr. Conley about the possibility of jail. The other way, of course, would be to find that Detective Constable Gendron had indeed notified Mr. Conley by that point that he might be facing a charge of criminal negligence and/or dangerous driving. Yet this latter approach would fly in the face of the detective's clear evidence that by that point in the investigation, it was unclear if charges would even be laid. Thus I prefer the former explanation.

Emotional State

[15] The defence did not argue that Mr. Conley's emotional state at the time of his making the statement affected its voluntariness. Nonetheless, I have listened carefully to the recording. While I have no doubt that he was distraught at the time that he interacted with Constables Nasim and Tucker, he appears to have his emotions in control by the time of the recording.

Finding on Specific Jeopardy

[16] On the basis of the foregoing, I am able to find that Mr. Conley was not aware of his specific jeopardy (i.e., the specific charges that he could possibly face) at the time that he provided his statement to the police. That being said, he clearly understood that if he were to be charged pursuant to the Highway Traffic Act and/or the Criminal Code, he might go to jail.

Legal Analysis: Operating Mind Test

[17] Mr. Lamb took me to several cases in support of the defence position that the analysis of whether a statement was made with an operating mind must include the question of whether the declarant was aware of the specific jeopardy that he or she faced at the time of providing the statement to a person in authority. With all due respect, I do not think that those cases stand for that proposition.

Analysis of Defence Cases

[18] In R. v. J.R., [2003] O.J. No. 718, the accused had been interviewed three times during the course of the police investigation into the murder of his wife. On the facts in that case, O'Connor J. of the Superior Court of Justice found that the first statement was voluntary but that as J.R. became a suspect after the first interview and given that the police did not caution him or give him his rights to counsel at any time, the Crown had failed to prove the voluntariness of the subsequent two statements.

[19] The defence referred me to para. 20 in J.R. which reads, in part "[v]oluntariness implies the person interviewed has an awareness of the full implications of speaking to the police." However, I see nothing in this decision that suggests that an awareness of the full implications of speaking to the police includes the knowledge of the specific charge or charges that could result. The decision in J.R. is concerned with the person who is suspected of a crime being advised in a meaningful but general sense of the implications of speaking to the police prior to being interviewed.

[20] Mr. Conley's counsel also referred me to R. v. Ronald, 2016 ONSC 2597. I see that decision as saying nothing more than what was stated in J.R. Likewise R. v. Higham.

[21] The final case that I was referred to by the defence was R. v. Worrall, [2002] O.J. No. 2711, a decision of Watt J. [as he then was]. Once again, I see this decision as standing for nothing more than the requirement that for a statement to be voluntary, a suspect should be cautioned prior and also provided with their rights to counsel.

Supreme Court Authority

[22] Furthermore, Watt J. refers at para. 97 to this passage from the Supreme Court of Canada's decision in R. v. Oickle:

[b]riefly stated, Sopinka J. explained that the operating mind requirement "does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment." I agree, and would simply add that, like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule.

[23] If Worrall stood for the proposition that the defence suggests, one might expect Watt J.A. to have included that proposition in his text Watt's Manual of Criminal Evidence. One looks in vain. Likewise, there is the following passage from David M. Paciocco and Lee Stuesser, The Law of Evidence (7th ed.), page 336 in a discussion of the voluntariness rule: "[t]hese evaluations are to be done "in all of the circumstances" including any indications that the accused person may have been unaware of the consequence of speaking to the police" citing R. v. D.M, 2012 ONCA 894 at paras. 43-45. However, once again, in my opinion, D.M. does not stand for the proposition that the police must caution a suspect of the specific Criminal Code offences as opposed to the general caution.

Application to Facts

[24] In the moments leading up to Mr. Conley providing his statement to Detective Gendron on September 1, 2016 after 10:13 a.m., the officer was aware that Mr. Conley had been involved in the death of Ms. Jahal. The investigation was still being conducted and it was the detective's evidence that no decision had been made by that point as to whether Mr. Conley would be charged with any criminal or Highway Traffic Act offence. Nonetheless, Detective Gendron was prudent and both cautioned Mr. Conley and read him his rights to counsel prior to taking the statement clearly having recognized the possibility of charges being laid. Thus Mr. Conley would have been aware, generally speaking, of the consequences of providing a statement to the police.

[25] Detective Gendron went even further and in response to a direct question from Mr. Conley, advised him of the possibility of a jail sentence or a fine. I do not think that the absence of this last bit of information would have rendered the statement involuntary. However, it is further evidence that Mr. Conley, in all the circumstances surrounding the taking of his statement, was possessed of an operating mind.

Conclusion

[26] Therefore, I find that the audio-recorded statement that Mr. Conley provided to Detective Gendron was voluntary and is admissible.

Released: July 23rd, 2018

Signed: Justice David A. Berg