Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 07 11 COURT FILE No.: Halton ICON # 1211 998 21-1251-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

FATMIR YRYKU

Before: Justice Scott Latimer Heard on: June 20, 21 2022 Reasons for Decision released on: July 11, 2022

Counsel: Carly Eastwood, counsel for the Crown Carlo Pasqualino, counsel for Mr. Yryku

LATIMER J.:

[1] During a blended trial/voluntariness/ Charter application, I ruled that the Crown had failed to prove an utterance voluntary beyond a reasonable doubt. The Crown subsequently advised that they could not otherwise prove the charge and invited dismissal. These short reasons explain why I was not satisfied that the Crown had met its voluntariness burden.

Facts

[2] Mr. Yryku had been arrested for Over 80 at a friend’s property after having been located by the police following a civilian complaint. He was asked out of the residence and a breath demand followed. As Mr. Yryku advised he had recently been drinking, the officers properly held off for fifteen minutes to address any residual mouth alcohol concerns.

[3] A portion of this detention period is captured on a recording from a police cruiser. Mr. Yryku sounds genuinely confused about what is happening. He repeatedly asks the officers questions about why this is happening. The officers, on the recording, are declining to answer his questions. I was advised in testimony the reason for this was that he had already been told the answer and was just asking the same questions, over and over. Constable Jolly advised that he read at least one caution to Mr. Yryku – although it was not the full caution and he was not 100% sure precisely what he said – but believes it was something like, “what you say will be given in evidence in court”. I note this does not include the core component of the caution: you do not have to speak.

[4] Mr. Yryku subsequently failed the screening test, was arrested, and was brought to a police station for further testing. He wanted to speak to counsel. Prior to his consultation, he was asked a series of questions by a booking officer who subsequently put him in contact with duty counsel. I do not know if a recording of this interaction exists; I was not shown one during the voir dire. The officer testified they could communicate “okay”, although he did not believe English was Mr. Yryku’s first language. He was put in contact with an English-speaking duty counsel.

[5] Following this legal consultation, he was placed in the breath room with Officer Jolly, the arresting officer who was also acting as the breath technician. A video recording exists of the breath testing process. Between the two tests, Jolly asked a series of questions that the Crown sought to substantively adduce as voluntary. During this questioning, Mr. Yryku seems to acknowledge recent operation of his vehicle. This is the statement the Crown is interested in admitting at this trial.

[6] As the record in this case makes clear, the recording’s sound quality is abysmal. There is a loud screeching, or whine, that makes many portions of the video impossible to hear. The first three minutes of the recording are, frankly, an assault on the ears. Officer Jolly, who is familiar with the breath room facilities at 20 Division, testified that this recording is consistent with what is normally captured on breath videos. He could not advise what precisely was causing the interfering sound – or why the room was otherwise not conducive to audio recording – but explained that this recording is no different from many others captured at this location.

[7] At the end of the video, Crown counsel agreed that approximately 50% of the recording was inaudible.

Analysis

[8] Statements made to persons in authority, like police officers, are presumptively inadmissible. The Crown bears the burden of proving these statements voluntary beyond a reasonable doubt. The Supreme Court of Canada explained the confessions rule in R. v. Oickle (2000), 2000 SCC 38, 147 CCC (3d) 321. A majority of the Court stated as follows at paras. 68-69, 71:

While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all, because of the criminal justice system's overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision.

The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.'s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness "that focuses on the protection of the accused's rights and fairness in the criminal process": J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.

Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an "inducement" as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all the aspects of the rule discussed above. ...” [emphasis added]

[9] A deficient record – as here – impairs a court’s ability to “understand the circumstances surrounding the confession” and to meaningfully inquire into whether a statement has been proven voluntary.

[10] In R. v. Moore-McFarlane (2001), 160 CCC (3d) 493, the Court of Appeal for Ontario discussed the Crown’s burden of establishing “a sufficient record of the interaction between the suspect and the police”. I accept that there is no absolute rule requiring videotaping of suspects in detention, and that in some circumstances other forms of evidence may suffice. In this case, however, I am not satisfied that the viva voce evidence offered, and the bare notations included in the officer’s note-taking template (not formally adduced into evidence, in any event), fill the gap created by the 50% inaudible video recording. The officer’s notes are limited and do not disclose, in any meaningful way, the entirety of the interaction between him and Mr. Yryku. They had a number of exchanges between the initial ASD-related detention and the breath room questioning. At times, the caution was provided accurately. Other times, it was paraphrased or incomplete. I do not know, with any level of confidence, the entirety of what was said to Mr. Yryku in the breath room proximate to his decision to answer questions.

[11] At paras. 65 and 67 of Moore-McFarlane, Charron JA, as she then was, stated as follows:

[T]he Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.

And, in my view, the completeness, accuracy and reliability of the record have everything to do with the court's inquiry into and scrutiny of the circumstances surrounding the taking of the statement. Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.

[12] In the present case, this application fails because the insufficient record prevents meaningful scrutiny of the entire interaction between the officer and Mr. Yryku. While some evidence has been presented, it is the absence of evidence that weighs most heavily in this result.

Disposition

[13] The Crown’s application to admit the statement is dismissed.

Released: July 11, 2022 Justice Scott Latimer