Court File and Parties

Ontario Court of Justice

Date: 2019-05-15

Court File No.: Toronto, College Park 4817-998-17-75003195

Between:

Her Majesty the Queen

— and —

Jackie Jurmain

Before: Justice J.W. Bovard

Heard on: July 19, 2018

Reasons for Ruling released on: May 15, 2019

Counsel:

• Mr. M. Morley — counsel for the Crown
• Ms. L. Dubin — counsel for the defendant Jackie Jurmain

Reasons for Ruling

Bovard J.:

Disposition

[1] The police charged Ms. Jackie Jurmain with impaired driving and 'Over 80' on July 6, 2017. These are the court's reasons for its ruling on the voluntariness of two utterances that Ms. Jurmain made during the investigation.

[2] For the reasons stated below, I find that the Crown proved beyond a reasonable doubt that Ms. Jurmain made the utterances in question voluntarily. They are admitted in evidence.

Introduction

[3] Two residents of an apartment building say that they saw Ms. Jurmain hit a parked car as she tried to park in a parking lot in front of their building. They thought that she was under the influence of an intoxicant. They called the police.

[4] The police arrived and investigated the accident. During the investigation, Ms. Jurmain made two utterances to Officer Hum, which the Crown wishes to adduce. The defence contests the voluntariness of the utterances. I conducted a voir dire into the voluntariness of Ms. Jurmain's utterances.

Issue

[5] Did the Crown prove beyond a reasonable doubt that Ms. Jurmain gave the utterances voluntarily?

The Evidence

[6] Officers Hum and Kovatevic arrived on scene to investigate a motor vehicle accident. Officer Hum saw a Honda Accord and a Hyundai Tucson parked next to each other in a parking lot in front of a residential building. The Accord was in front of the Tucson. The Tucson had its rear wheel up on the sidewalk.

[7] Officer Hum saw corresponding damage to both cars. Ms. Shreves, one of the residents of the building who says she observed the accident, showed him a picture that she took of the driver. Officer Hum said that the picture was of Ms. Jurmain standing by the front driver's side hood of the Tucson.

[8] Officer Hum saw Ms. Jurmain walking towards him. He walked towards her waving a "very friendly hello". He introduced himself. He told her that he was investigating a motor vehicle accident. He did not make any physical contact with her.

[9] Officer Hum asked Ms. Jurmain if she had consumed any drugs or alcohol. She said that she had not. He did not smell alcohol on her breath. He was happy to just be investigating a traffic offence. They walked together to the cars. She acted pleasant, happy, and care free.

[10] They walked up to the Accord first. Officer Hum pointed to scratches on the car. Ms. Jurmain told him that this car had not been there when she parked. His testimony on this point was "when I first initially approached her and said, hello, how are you? And I pointed out the vehicle and she said that, that motor vehicle or vehicle wasn't there when she parked". [1]

[11] Then he "moved toward the Honda on the sidewalk and that's when, well, what about this? I pointed out her damage to her motor vehicle and that's when she said, that damage was sustained prior". [2]

[12] These are the two utterances in question in this voir dire.

[13] The Crown asked him where his partner was "Up to the point where you're speaking to this individual who has walked up to the scene … ?" He said that he believed that she was "either talking to the person that flagged us down originally or attempting to locate the witnesses". [3] From this I infer that when Officer Hum first encountered Ms. Jurmain, Officer Kovatevic was not with him.

[14] Officer Hum was not 100% sure whether Officer Kovatevic had contact with Ms. Jurmain while he and Ms. Jurmain were examining "the car". He did not recall anything that Officer Kovatevic might have said at this point. He did remember that Officer Kovatevic did not have any physical contact with Ms. Jurmain.

[15] Officer Hum stated that "we go back and forth in the - in the area kind of assessing the damage of the motor vehicles. So, as I'm looking at one, she's most likely with the defendant on the other side so that we still are talking with her at the same time". [4]

[16] I asked Officer Hum to clarify this. He said "My escort would be on the sidewalk talking to the defendant as I'm like re-assessing and looking at the damage of the motor vehicle". [5]

[17] Officer Hum said that when he and Ms. Jurmain were "discussing the damage of the motor vehicles it would be just me kind of interacting and pointing out having the primary conversation with-with the defendant". [6] This was when Ms. Jurmain stated that the damage to her vehicle was sustained six months before.

[18] I glean from this evidence that when Ms. Jurmain made her utterances, Officer Kovatevic was not with her and Officer Hum. Based on this, I find as a fact that Officer Kovatevic's contact with Ms. Jurmain occurred after Ms. Jurmain made the utterances in question.

[19] Officer Hum was in uniform and carried a side arm. Officer Kovatevic was in uniform, also. Presumably, she also carried a side arm. Officer Kovatevic may have had verbal contact with Ms. Jurmain during the investigation. He was not 100% sure. But she did not have any physical contact with her. Officer Kovatevic was on the sidewalk speaking to Ms. Jurmain while Officer Hum inspected the cars. He did not recall what, if anything, Officer Kovatevic said to Ms. Jurmain.

[20] The officers dealt with Ms. Jurmain together, but Officer Hum took the lead regarding discussions concerning the damage to the cars. In the end, Officer Hum did not make a Highway Traffic Accident report because he charged Ms. Jurmain with impaired driving and 'over 80'.

[21] Officer Hum said that Ms. Jurmain did not ask him anything. He did not make any offers, threats, or promises to her. However, he expected her to answer his questions because she is obligated to do so under the law. But he did not tell her this, or force her to answer questions.

[22] It is not clear exactly what Officer Hum meant by this; however, his evidence on cross-examination may add a little clarity. Defence counsel asked him "you expected her to remain at that moment and continue answering your questions". He answered "Well, she does-under the Highway Traffic Act she has to provide a driver's license, ownership and insurance, all that stuff. She doesn't have to say whatever she has to say, but I mean like, those are her responses to what I'm doing. I'm not forcing her to say anything else. I'm just pointing out, there's damages here and-and she's responding to it, so". [7]

[23] Ms. Jurmain testified that she felt intimidated. She understood that the officers were investigating the accident. She felt obligated under the law to answer their questions. However, she gave confusing testimony in this regard. She said that this was her belief regarding any question that an officer might ask her in any context. But she also said that if an officer walked up to her on the street and asked her what was in her pockets she would not have to answer that question. But with Officer Hum, she "knew he was called for my car specifically. It wasn't random". [8] So any time that the police investigate something about her, she thinks that she has to answer their questions.

[24] Then she qualified her position. She was not sure what she would have done had the police told her that her answers could be used against her. She may have "Maybe remain quiet". [9] She said that in her conversation with Officer Hum she was not "reporting a motor vehicle collision"; rather, she was denying that she had one. [10]

[25] She could not remember if she said anything to Officer Kovatevic, or if Officer Kovatevic said anything to her. She did not remember the officer threatening her or making any offers to her in exchange for answers to her, or Officer Hum's questions.

[26] That was all of the evidence on the voir dire.

Analysis

[27] The Crown seeks to adduce Ms. Jurmain's two utterances: (1) that the Accord was not there when she parked, and (2) that the damage on her car was sustained six months previously. The Crown told the court that:

In my respectful submission, they are admissible for the limited purpose of grounds without the Crown proving beyond a reasonable double that they're voluntary. But, I am seeking to have them found by Your Honour as voluntary so that they may be applied to the trial proper as well, not only to the Charter voir dire. [11]

[28] Since the Crown wishes to use the utterances for the purposes of the trial proper, he must prove beyond a reasonable doubt that Ms. Jurmain made the utterances voluntarily.

[29] I understand the Crown's reference to "the Charter voir dire" as meaning the defence's applications under ss. 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms, because on the voir dire regarding Ms. Jurmain's two utterances to Officer Hum, the defence did not raise a Charter issue. Nor did the defence raise the issue of statutorily compelled statements.

[30] Therefore, I understand the sole issue in this voir dire to be whether Ms. Jurmain gave her statements to Officer Hum voluntarily. This understanding is supported by defence counsel's submissions at pages 33, 34 of the transcript of July 19, 2018, in which she stated:

The onus is on the Crown to prove beyond a reasonable doubt the voluntariness of the statement. He has to prove that the statement wasn't obtained as a result of her fear or discomfort or being concerned that she's being asked questions by a person in authority.

In my submission, Your Honour those statements were made by a woman that knew she was – her car was being investigated.

THE COURT: Sorry, made by a woman that what?

MS. DUBIN: Knew her car was being investigated and she thought she had to answer his questions. If he would have said, you don't need to answer my questions she wouldn't have answered, because she didn't answer of her own free will. Subject to any questions those are my respectful submissions.

[31] Therefore, my analysis will only refer to voluntariness.

[32] Ms. Jurmain may have felt that she had to answer Officer Hum's questions, but this does not necessarily render her statements involuntary. She said that had the police told her that her answers could be used against her, she may have remained quiet. This evidence indicates that she thinks that she can remain silent if her utterances can be used against her. Therefore, her belief that she has to answer the questions of the police when they are investigating her depends on the circumstances.

[33] Regarding the fact that Officer Kovatevic did not testify in the voir dire, it is but one factor that I have to consider in deciding whether the Crown proved beyond a reasonable doubt that Ms. Jurmain made her utterances voluntarily.

[34] In this regard I note that, although it is not crystal clear, the evidence permits a reasonable finding of fact that Ms. Jurmain's contact with Officer Kovatevic occurred after she made her utterances. Therefore, Officer Kovatevic could not have had any influence on her making the utterances.

[35] The importance of the officer's presence at the time that the utterances were made is highlighted in R. v. Thiffault (1993), 60 C.C.C. 97 (S.C.C.), page 103, Duff C.J.C. stated:

Where such a statement is elicited in the presence of several officers, the statement ought, as a rule, not to be admitted unless (in the absence of some adequate explanation of their absence) those who were present are produced by the Crown as witnesses … Where the statement professes to give the substance of a report of oral answers [given to questions] ought not to be admitted … Unless the person who is responsible for its compilation is (here again in the absence of some adequate explanation of his absence) called as a witness. (My emphasis)

[36] In the circumstances of the case at bar I find as a fact that Officer Kovatevic did not have anything to do with Ms. Jurmain making the utterances in question.

[37] After considering all of the evidence, the circumstances, the law, and counsel's submissions, I find that the Crown proved beyond a reasonable doubt that Ms. Jurmain made the two utterances voluntarily. They are admitted into evidence.

Released: May 15, 2019

"Signed": Justice J.W. Bovard

Footnotes

[1] Transcript, July 19, 2018, page 22

[2] Ibid., page 15

[3] Ibid., page 11

[4] Ibid., pages 13, 14

[5] Ibid., page 13

[6] Transcript, July 19, 2018, page 14

[7] Ibid., pages 22, 23

[8] Transcript, July 19, 2018, page 30

[9] Ibid., page 26

[10] Ibid., page 29

[11] Ibid., page 10