WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
- ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY — (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
( a ) may, if application therefor is made by the prosecutor, and
( b ) shall, if application therefor is made by any of the accused,
make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
( c ) he or she is discharged, or
( d ) if he or she is ordered to stand trial, the trial is ended.
(3) FAILURE TO COMPLY WITH ORDER — Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2023 01 11
COURT FILE No.: Central East Region: Oshawa Courthouse File # 21-25083-00
B E T W E E N :
HIS MAJESTY THE KING
— AND —
JACOB MARTIN NORN
Before Justice Peter C. West
Evidence Heard on September 19, 20, 21. 22, 23, 26 and 27, 2022
Reasons for Voluntariness Ruling released on January 11, 2023
Mr. Michael Hill and Mr. R. Greenway........................... counsel for the Crown
Mr. P. Thorning and Ms. S. Pffeiffer.... counsel for the defendant Jacob Norn
WEST J.:
[1] Jacob Norn elected to be tried by a court composed of a judge and jury in respect of charges he faced and to have a preliminary inquiry in respect of two of those charges; namely, trafficking in a schedule 1 substance – fentanyl (Count 1) and manslaughter (Count 7).
[2] As part of the Crown’s case a video-recorded police statement of Jacob Norn taken by Detective Constable Joanne Bortoluss was presented and as a result the Crown is required to prove beyond a reasonable doubt that this statement was made voluntarily by Jacob Norn. It is the position of the Crown that this onus has been met and the police statement should be found to have been voluntarily made. The defence argued that this statement was not voluntary.
Legal Framework
[3] An accused person's statement to a person in authority, whether inculpatory or exculpatory or a combination, is presumptively inadmissible. "Voluntariness is the touchstone of the confessions rule": R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 69. A confession or statement made to a person in authority is not admissible evidence unless the Crown can prove beyond a reasonable doubt that the statement was made voluntarily, R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, a para. 11.
[4] Where a person speaks voluntarily to the police, concerns as to the reliability of the statement are attenuated such that admissibility is warranted. In R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, the Supreme Court noted that voluntariness encompasses the right to silence, meaning the right of the accused person to make a meaningful choice about whether or not to speak to the police.
[5] The Supreme Court has rejected fixed and narrow rules when assessing the voluntariness of statements: Oickle, at para. 47. The analysis “must be a contextual one”: Oickle, at para. 71. The focus of the inquiry is on the conduct of the police and how it influences an accused’s choice and decision to speak. A court must consider all relevant factors when determining whether a statement is voluntary, Spencer, at para. 12 and R. v. Brown, 2015 ONSC 3305, [2015] O.J. No. 3046 (SCJ), at paras. 89-90. These factors include:
- Threats, promises or inducements
- An atmosphere of oppression in which the will of the person making the statement is overborne
- The person making the statement must have an operating mind
- Police trickery
[6] For a statement to be voluntary, it cannot have been obtained by "hope of advantage" or "fear of prejudice" held out by a person in authority (see Ibrahim v. R., [1914] A.C. 599, and Oickle at para. 24). It cannot have been improperly induced through threats or promises. In the Supreme Court's view, the most important consideration is whether a quid pro quo offer is made as part of the inducement (see: Oickle, para. 57). Inducements are improper where, alone or in combination with other factors, they are strong enough to raise a reasonable doubt about whether the will of the subject has been overborn (see: Oickle at para. 57, and Spencer, para 31 to 32).
[7] In Brown, at paras. 93-95, Justice Fairburn (as she then was) addressed the appropriate limits of the role of police in attempting to persuade a suspect to speak. I adopt her conclusions and statement of the law.
93 In the end, and of critical importance, the law allows police officers to offer inducements. Indeed, the jurisprudence has long recognized the importance of the police doing so in pursuit of solving crime. The voluntariness doctrine is not to be applied in a way that precludes this important investigative technique. As noted in Oickle"[f]ew suspects will spontaneously confess to a crime": at para. 57.
94 The police are not required to be mute in an interview, waiting for an accused to extemporaneously decide to say something. To the contrary, the police are permitted to encourage, persuade and convince a suspect to speak. They can even try to persuade a suspect that it would be in his or her interests to confess. Indeed, in Oickle, Iacobucci J. commented on the fact that 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": Oickle, at para. 57. In applying a contextual approach, it is important to remember that the police can speak in an accusatorial and persistent manner: (cites not included)
95 What the police cannot do is offer inducements, either through the form of threats or promises, that are "strong enough to raise a reasonable doubt about whether the will of the subject has been overborne": Oickle, at para. 57. See also: Spencer, at paras. 17, 19. This is often referred to as the quid pro quo. Deschamps J. summarized this approach in Spencer, at para. 15, where she held:
... while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused's statement.
[8] Further, in R. v. Strong, 2021 ONSC 231, [2021] O.J. No. 103 (SCJ), at paras. 14-16, Justice Di Luca described the following conclusions from the cases, which I adopt:
14 …It is not enough to simply identify an inducement, threat or promise. There must be a connection between the inducement, threat or promise, and the decision to speak to police. Police persistence in the face of repeated assertions of the right to silence may give rise to real concerns about the voluntariness of a statement. However, the right to silence does not extend to the right not to be spoken to by authorities, nor does the right to silence prohibit questioning by police. Police persuasion which falls short of denying the accused the right to choose whether to speak does not breach the right to silence and does not render a statement involuntary: see Singh, supra, at paras. 46-47 and Brown, supra, at para. 88.
15 In terms of assessing inducements, the Court of Appeal offers the following guidance in R. v. Fernandes, 2016 ONCA 772, at paras. 26 and 27:
Where the state induces a suspect to confess, regardless of whether the inducement comes in the form of a threat or a promise, the confession will be inadmissible when the inducement, whether standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the will of the subject has been overborne: Oickle, at para. 57.
The most important consideration in determining whether the accused's statement has been induced by such a threat or promise is whether there was a quid pro quo offer by the interrogators. A quid pro quo offer is an inducement for the suspect to confess that raises the possibility that the suspect is confessing, not because of any internal desire to confess, but merely in order to gain the benefit offered by the interrogator: R. v. Heatley, 2015 BCCA 350, 375 B.C.A.C. 194, at para. 6, and Oickle, at para. 56.
16 While the existence of a quid pro quo often signals concerns about voluntariness, it is not the quid pro quo itself that renders the statement involuntary. Rather, as stated by Deschamps J. in R. v. Spencer, 2007 SCC 11 at para. 19"...while a quid pro quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry into voluntariness."
[9] In Oickle, at para. 44, where an interrogating officer suggests it would be “better” for the accused to tell the truth and confess, there is a risk that the language will create a prohibited quid pro quo and render the statement involuntary; however, this does not require exclusion. (see also R. v. Brown, at para. 92; and R. v. Wabason, 2018 ONCA 187, [2018] O.J. No. 1012 (C.A.), at paras. 16-20). Similarly, language which suggests that a detainee’s credibility is at its highest during the police interview or this is his only opportunity to give his side of the story can also suggest a prohibited quid pro quo that undermines both the right to remain silent and legal advice given by counsel, see R. v. Van Wyk, [1999] O.J. No. 3515 (SCJ, Hill), at paras. 160-168 and R. v. Othman, [2018] O.J. No. 6751 (C.A.), at paras. 12-19. In all cases, the trial judge is duty bound to examine the entire contents of the statement and ask whether there exists a doubt about its voluntariness: Oickle, at paras. 54, 57; Spencer, at paras. 13-15, 19.
[10] A statement will be rendered involuntary where the circumstances of the detention are so oppressive that they leave a reasonable doubt about whether the accused was able to make an independent choice to speak to the police or remain silent, see Oickle, at para. 60. Examples of oppressive circumstances include situations where a detainee is deprived of food, clothing, warmth, sleep or medical attention, as well as where the police questioning is prolonged and aggressive, see Fernandes, at para. 34. The "presence of oppressive circumstances, standing alone, does not necessarily render a statement involuntary": R. v. Zekarias, 2018 ONSC 4753, at para. 12. A statement will be rendered involuntary where:
"...the conduct of a police officer or the circumstances of the detention are so oppressive as to raise a doubt whether the accused was able to make an independent choice to speak to the police or remain silent ":
R. v. Fernandes, 2016 ONCA 772, at para. 33. [ Emphasis added ]
[11] In determining whether the Crown has proven voluntariness I must consider all of the surrounding circumstances including and being “sensitive to the particularities of the individual detainee” Oickle, at para. 42. The test however is an objective one.
Analysis and Findings
a) Jacob Norn’s Arrest
[12] On March 19, 2021, Detective Graham contacted DC Cooke of the Offender Management Unit (OMU) and provided grounds to arrest Jacob Norn for trafficking in a schedule 1 substance. This followed an investigation into the death of Tyler Ginn on March 12, 2021, caused by Fentanyl and Etizolam toxicity.
[13] At 4:30 p.m., officers from Community Resource Team (CRT) attended at Jacob Norn’s residence to conduct surveillance and attempt to locate Jacob Norn. The OMU team were enroute and had not yet arrived. The Honda Ridgeline used to conduct the drug transaction with Mr. Ginn on March 11, 2021, was observed outside 9 Croxall Blvd in Whitby, which was the residence where Jacob Norn resided. The vehicle was parked diagonally to the residence, which Det. Peacocke believed indicated an intention to leave quickly.
[14] At 4:42 p.m., a white Volkswagen entered the rear parking area of the complex where the residence was located. The sole male person inside the vehicle was swaying and jerking his body, which police believed demonstrated someone who was suffering from drug withdrawal. At 4:46 p.m., Jacob Norn was observed exiting his house and walking to the Volkswagen and getting in the front passenger seat. Det. Peacocke observed a conversation between Mr. Norn and the unknown male person in the vehicle and then saw that something was exchanged between them below the dash. He believed this to be a drug transaction. Det. Graham testified he believed that Tyler Ginn had died as a result of consuming Fentanyl provided by Mr. Norn on March 11 and as a result there were public safety concerns this same Fentanyl could be distributed by Mr. Norn to others in the community. The Crown submitted this concern became a realistic concern based on the observations of Det. Peacocke of what occurred in this Volkswagen. I find the Det. Peacocke had reasonable and probable grounds to believe a drug transaction had occurred.
[15] When Jacob Norn was observed at 4:50 p.m. to exit the Volkswagen and begin walking towards his residence, a decision was made by Det. Peacock and communicated to the officers there to arrest Jacob Norn for trafficking in a schedule 1 substance. As well, he advised officers to arrest the person in the Volkswagen for possession of a scheduled substance because of the drug transaction he believed he observed occur. Det. Peacocke advised the CRT team of his decision by speaking to DC Best by radio.
[16] Det. Peacocke approached Mr. Norn from behind to effect the arrest. He took control of Mr. Norn from behind with both hands, grabbing him by a shoulder and an arm and forced him to the ground on his stomach. As Det. Peacocke took hold of Mr. Norn he was advising him he was under arrest and that he was a police officer. Other officers confirmed Det. Peacock was telling Mr. Norn he was a police officer and was arresting Mr. Norn. Det. Peacocke was dressed in plain clothes and wearing a police vest, which had POLICE written on the front in white. His police issued firearm, as well as other use of force options (baton, pepper spray and additional magazines for his firearm) were on his belt on his hip, on his right side. All of the officers involved in Mr. Norn’s arrest were dressed in plain clothes and wearing black police vests with POLICE written on the front and back in white.
[17] When Det. Peacocke was approaching Mr. Norn he saw DC Wilson and DC Gouldby. He did not see anything in any of their hands. Det. Peacocke did not utilize any use of force options he had to effect the arrest of Mr. Norn. Mr. Norn was handcuffed by Det. Peacocke to the rear. Mr. Norn was cooperative and compliant during the arrest. Det. Peacocke advised Mr. Norn he was under arrest for trafficking in a controlled substance. Mr. Norn responded, “What does that mean?” and Det. Peacocke explained to him that this was for dealing in drugs. Det. Peacocke conducted a brief pat down search while Mr. Norn was on the ground and located a cellphone in his right pocket, which he seized. He later turned this over to DC Laloo. DC Wilson observed Det. Peacock conduct the pat down search of Mr. Norn when he was on the ground.
[18] DC Wilson assisted Det. Peacocke in the arrest. She approached from the south side of Mr. Norn with PC Bell. Mr. Norn was ultimately moved to a nearby curb where he remained seated until he was transported to the police station. I accept the evidence of the officers involved in Mr. Norn’s arrest that it was conducted appropriately. Mr. Norn was advised he was being arrested for trafficking in a schedule 1 substance and I find he was fully cognizant of this. I further find Mr. Norn was compliant and cooperative with the officers and sat on the curb without incident until a uniform officer arrived to transport him to 17 Division.
[19] PC Bell testified he believed Mr. Norn was walking towards the Honda Ridgeline, which caused him to have safety concerns because despite Det. Peacock issuing commands about his arresting Mr. Norn, Mr. Norn was not looking toward or acknowledging what Det. Peacocke was saying. PC Bell believed Mr. Norn was moving towards the Honda Ridgeline and was planning to leave. As a result he drew his service issued firearm and kept it in the low ready position, which he described as holding it with both hands close to the front of his body and pointing it down to the ground. Mr. Norn turned toward Det. Peacocke at some point and appeared to hear what Det. Peacocke was saying. At that point Mr. Norn was taken to the ground on his stomach and handcuffed to the rear. PC Bell was about 10 metres from Mr. Norn at the point he was taken to the ground by Det. Peacocke. Once PC Bell observed compliance by Mr. Norn he re-holstered his firearm. PC Bell advised he filed a use of force report detailing his removal of his service issued firearm and the reasons why. There was no evidence presented that would suggest Jacob Norn was aware that PC Bell had drawn his firearm. On the evidence I find PC Bell had no personal contact or interaction with Mr. Norn. It is my view this action by PC Bell in no way impacts Mr. Norn’s interactions with the police, particularly in respect of the eventual video-taped statement he provided at the police station. In the written submissions the defence did not suggest PC Bell’s actions in any way impacted Mr. Norn interview.
[20] Once Mr. Norn was seated on the curb, Det. Peacocke turned custody over to DC Wilson and stepped away to contact DC Cook of the OMU by cell phone to advise him that Mr. Norn was in custody and there was no need for the OMU to rush to the residence. When Det. Peacocke returned he read Mr. Norn his right to counsel and cautioned him. He read both from a card he had with him. Mr. Norn indicated he understand his right to counsel and he told Det. Peacocke he wanted to call his lawyer, Peter Thorning. Mr. Norn indicated he understood the caution after it was read.
[21] DC Wilson testified when Det. Peacocke turned custody of Mr. Norn over to her she read him his read to counsel from her notebook and a caution. Mr. Norn indicated he understood his right to counsel and wanted to call his lawyer, Peter Thorning. DC Wilson told Mr. Norn he was being charged with trafficking a controlled substance and she told him, “You are not obliged to say anything unless you wish to do so but whatever you say may be given in evidence. Do you understand?” Mr. Norn responded, “Yeah.” I find this was the first time a police officer advised Mr. Norn of his right to counsel.
[22] DC Wilson requested PC Best’s assistance in searching Mr. Norn incident to his arrest. During that search drugs were located on Mr. Norn’s person. (These are not the subject of this preliminary inquiry but are set out in the Information before the court. PC Best advised Mr. Norn he was facing additional charges because of this discovery and read his right to counsel and cautioned him again, given the change in his jeopardy relating to these additional charges. This was the third occasion that Mr. Norn was read his right to counsel and cautioned. When PC Best asked Mr. Norn if he understood his right to counsel at 5:29 p.m., Mr. Norn responded, “I don’t understand a lot.” PC Best testified he then explained in simple terms what the right to counsel meant and when he asked again if Mr. Norn understood, Mr. Norn did not respond. Of course, this was the third time Mr. Norn had been read his right to counsel and on the two earlier occasions he indicated he understood and wanted to speak to his lawyer Peter Thorning. Further, PC Gouldby was present when PC Best read Mr. Norn his right to counsel as a result of his being charged with possession of the drugs found by PC Best. He was taking notes because of the wind where the arrest took place and he noted Mr. Norn’s response to his right to counsel when he was asked by PC Best if he understood as being, “I don’t understand a lot. I’d like to speak to my lawyer.” PC Best then read Mr. Norn the primary caution, which he indicated he understood. PC Best also read the secondary caution and Mr. Norn responded “Yeah” when he was asked if he understood. PC Best testified he believed Mr. Norn was mentally engaged in the process and understood what was happening.
[23] All of the police officers who testified respecting the voluntariness issue indicated they did not threaten or make any promises to Jacob Norn during their interactions with him. No suggestions of threats or promises were alleged during cross-examination. None of the officers at the arrest location questioned Mr. Norn concerning the charges he was arrested for. After Mr. Norn was first placed under arrest by Det. Peacocke for trafficking in a schedule 1 substance he was read his right to counsel on two occasions, first by DC Wilson and secondly by Det. Peacocke and neither officer questioned him concerning this charge. In fact, DC Wilson testified she could not recall having any conversation with Mr. Norn for the half an hour he was in her custody before turning him over to PC Sharna, the transporting uniform police officer.
[24] Mr. Norn was read his right to counsel a third time by PC Best after he found drugs on Mr. Norn’s person when he searched him incident to the original arrest. Mr. Norn advised he wanted to speak to his counsel and PC Best did not question him. All of the police officers who had contact with Mr. Norm at the scene of the arrest described Mr. Norn as being cooperative and calm. The evidence in my view demonstrated that all of the police officers who had interaction with Mr. Norn treated him appropriately and respectfully. After he was arrested he sat on a curb and some of the officers described him as being emotional and crying, No officer saw any injuries to Mr. Norn and there was no evidence of him complaining about being injured. PC Gouldby testified Mr. Norn was emotional but he believed it was because of Mr. Norn being arrested outside his residence and was handcuffed in front of people who were watching what was happening.
[25] PC Sharna was the uniform police officer who transported Mr. Norn to 17 Division in Oshawa. He saw Mr. Norn sitting on the curb when he arrived at Croxall Blvd. He testified Mr. Norn may have been crying but he did not make note of that. He did not think Mr. Norn was exhibiting signs of someone who had used a controlled substance. Before leaving PC Sharna read Mr. Norn the primary and secondary caution. As they were leaving he read Mr. Norn his right to counsel that is pre-printed in the back of his police notebook. Mr. Norn indicated he understood the cautions. He was aware that Mr. Norn had been advised of his right to counsel by Det. Peacocke but decided he should read it to him again and stopped his police vehicle to do that. Mr. Norn advised PC Sharna he wanted to speak to his lawyer and provided the lawyer’s name. PC Sharna left at 5:41 p.m. and arrived at 17 Division at 6:00 p.m. There was no conversation between them on the drive to 17 Division. PC Sharna spoke to the booking Sergeant, Acting Sgt. Lenaerts, and then went back to his police cruiser and brought Mr. Norn into the booking area.
b) Jacob Norn’s Booking at 17 Division
[26] PC Sharna saw no signs of injury to Mr. Norn and Mr. Norn made no complaints about any injuries. PC Sharna observed when Mr. Norn spoke he seemed to have a speech impediment in that he stuttered. At the police station PC Sharna testified although Mr. Norn was emotional at times he did not believe he was under the influence of controlled substances. He believed he was coherent and understood what was happening during the booking. During the booking Mr. Norn asked for the handcuffs to be removed on a number of occasions and he was told “the faster he answered the questions the faster the cuffs come off.” PC Sharna believed Mr. Norn asked for the handcuffs to be removed so he could not prevent or fix his hair that was falling to the right side of his face. PC Sharna took Mr. Norn’s emotional upset to be because he was in custody and nothing else. He did not believe there was any need for EMS to be called.
[27] Acting Sgt. Lenaerts was the booking sergeant at 17 Division when Mr. Norn was brought to that station by PC Sharna. The booking videos were played and marked as an Exhibit, along with a transcript. What is clear from the video is that Jacob Norn is emotionally upset and crying. He wanted the handcuffs to be removed because his hair was falling into his face and his nose was running because he was crying and he could not wipe it because of the handcuffs. A police officer standing beside Mr. Norn got Kleenex and he started wiping Mr. Norn’s nose and tried to keep Mr. Norn’s hair from falling into his eyes. This was done by this police officer on numerous occasions. There is no doubt Mr. Norn is emotionally upset; however, I have no way of determining whether his emotional upset is because of his circumstances, being in custody, in handcuffs and unable to move his hair or blow his nose, being held for a bail hearing, charged with a number of serious offences or whether it is because he consumed a controlled substance. There was no evidence presented that would cause me to believe Mr. Norn had consumed a controlled substance at some point prior or around the time of his arrest.
[28] He was asked if he had consumed any alcohol in the past 12 hours and he asked what time it was and when he was told the time he shook his head no. He clearly understood and comprehended this question. When he was asked if he had consumed any drugs he initially shook his head side to side to signify “no” and then when Sgt Lenaerts asks, “No?” Mr. Norn said, “I don’t know man” and then appeared to bang his head on the booking desk. When he was asked if he had ever tried to harm himself, he responded, “Not yet.” When he was asked if he had any injuries he said, “A bruised calf” and when he was asked if that was something that happened today or before he responded, “Today, today.” When he was asked when it happened he said, “At the arrest.” Sgt. Lenaerts then told Mr. Norn he had to ask COVID screening questions and Mr. Norn told Sgt. Lenaerts if they removed the handcuffs he would answer the questions. After some discussion Sgt. Lenaerts agrees to have the handcuffs removed and PC Sharna removed them. Mr. Norn then answered the screening questions. A final area of concern expressed by Mr. Norn had to do with one of the cell officers wanting to cut the string from his pants and a sweater he was wearing. Mr. Norn initially did not understand the reason for why this was required but ultimately he did understand and he told them to put his sweater with his belongings (necklace and earrings he had removed) as he did not want the string to be cut on the sweater.
[29] It is my view that Mr. Norn fully understood what was being said to him during the booking and parade. He was clearly upset and at times crying but in my view, from his answers and interactions with the officers, it was directly related to the circumstances he found himself in; namely, his being under arrest for a serious charge and in police custody. He had no difficulty reiterating his wish to speak with his lawyer and to provide his lawyer’s name, or to advise who he wanted to be his surety and he provided his mother’s name and phone number. It is my view from watching the booking video that the police officers present during the booking did not yell at Mr. Norn or get upset with him and they treated him with respect. Sgt. Lenaerts explained the questions he was asking were to assist in keeping Mr. Norn safe when he was in police custody and to determine and assess what was needed to ensure that this occurred. The booking video demonstrates that Sgt. Lenaerts was quiet and patient and calm during his interactions with Mr. Norn. I find the booking did not impact what took place after Mr. Norn spoke with his lawyer and Sgt. Bortoluss started her interview with him.
c) Video-Taped Interview of Jacob Norn by Sgt. Joanne Bortoluss
[30] Once the booking was completed at 6:28 p.m., Mr. Norn was lodged in a cell and I find based on the evidence he was put in contact with his lawyer, Peter Thorning. I do not know how long he spoke with his lawyer from the evidence led during the preliminary inquiry. After speaking with his lawyer Det. Graham brought Mr. Norn to an interview room at 6:54 p.m., where he was introduced to Sgt. Bortoluss, who conducted the video-taped interview. Det. Graham asked if Mr. Norn wanted a drink and a granola bar and Mr. Norn took a drink box.
[31] At 7:00 p.m., Mr. Norn was taken from the interview room and had another telephone call with his counsel as a result of Sgt. Bortoluss advising him that he was being investigated on a charge of manslaughter relating to the death of Tyler Ginn, given the police belief that Mr. Norn had provided Mr. Ginn with Fentanyl prior to his death, which related to the charge of trafficking in a schedule 1 substance. After Mr. Norn completed his second call with his counsel, he was returned to the interview room by Det. Graham at 7:07 p.m.
[32] When Mr. Norn was first brought to the interview room at 6:54 p.m., Sgt. Bortoluss asked him if he understood why he was in the police station and Mr. Norn responded, “My lawyer told me not to say anything.” She advised him that was fine but she just wanted to make sure he understood why he was there. Mr. Norn again indicated his lawyer told him not to say anything. Sgt. Bortoluss said, “So you have spoken to your lawyer?” but Mr. Norn did not respond. She said she understood he was arrested at his home and she wanted to make sure there were no issues with those officers and Mr. Norn said, “Pretty aggressive.” She asked if he was hurt at all and Mr. Norn repeated, “My lawyer told me not to say anything.”
[33] Sgt. Bortoluss said if he was hurt or feeling pain to let her know and she would address that. She told him he was under arrest for trafficking and had been advised of his right to counsel. She then cautioned him that he was not obliged to say anything unless he wanted to do so and that whatever he said, may be given in evidence. She then gave him a secondary caution. Mr. Norn throughout this did not say anything. Based on the evidence this was the sixth time Mr. Norn was given the primary caution and the third or fourth time he was provided a secondary caution. It was at this point that Sgt. Bortoluss advised Mr. Norn that another part of the police investigation was in respect of a Manslaughter charge and that this changed his jeopardy. She asked him if he wanted to speak to his lawyer again and Mr. Norn said he would. She told him he was not being charged with that offence right then and she would let him speak to his lawyer again. She asked who his lawyer was and he said Peter Thorning.
[34] Mr. Norn exited the interview room and returned six and a half minutes later. He said he had spoken to his lawyer again. Sgt. Bortoluss told him he was charged with trafficking and was being investigated for Manslaughter, but not charged with that offence. She then cautioned him a second time, both primary and secondary cautions. He said he understood the cautions. She told him if he needed a break or wanted something to eat or drink or if he wasn’t feeling good to just let her know.
[35] Initially Mr. Norn either said to Sgt. Bortoluss when she asked him a question that his lawyer told him not to say anything or he would not respond. At an early point in the interview Mr. Norn had a conversation with Det. Bortoluss about his wanting a smoothie and what kind of smoothie he liked and where he purchased them. This circumstance occurred on a number of occasions throughout the interview where Mr. Norn responded to Sgt. Bortoluss by answering some of her questions and making requests, about wanting to call his mom or having a fruit tray for something to eat. At one point he answered a number of questions about the fact his mom and dad were not together and how this affected him. It is my view this demonstrated Mr. Norn was making his own decisions about what he would talk about and what he would not.
[36] During the first half of the interview Mr. Norn said to Sgt. Bortoluss he would love to talk to her but his lawyer said he shouldn’t say anything. When she was asking questions about his life and background he answered some but then he told her he would love to talk about his life story but his lawyer told him not to say anything so he felt he shouldn’t say anything and he was sorry. He told her he felt so “conflicted.” At a later point he told Sgt. Bortoluss, “I feel like, you know I wanna talk to you, but I’ve been advised otherwise and…” At page 20, Sgt. Bortoluss asked Mr. Norn “Jacob, tell me what I have wrong?” and he said, “I really want to. It’s just I feel like, if I don’t listen to, to him and something goes wrong it’s just gonna be my fault. Like, I always don’t listen and I feel like the same thing’s gonna happen if I don’t listen.” It is my view that Jacob Norn completely understood he had a choice whether to talk to Sgt. Bortoluss or not talk to her. He wanted to tell his side of the story about what happened but he was conflicted with what his lawyer had told him and what he wanted to do.
[37] Starting at page 8 of the statement Mr. Norn told Sgt. Bortoluss he wanted to talk to his mom. This was a request on a number of occasions by Mr. Norn. Sgt. Bortoluss told him if she could arrange that she would but she could not promise anything. When Sgt. Bortoluss asked him if he sold Fentanyl to Tyler Ginn on March 11 Mr. Norn said his lawyer told him not to say anything. She told him it was a Manslaughter investigation and charges could still be laid. She said if he didn’t want to help himself that is fine, he didn’t have to but maybe he should think of his mom for a minute. Mr. Norn told her “maybe I wouldn’t be here if I’d talked to my mom, ‘cause I just want her advice.” Sgt. Bortoluss told him she understood what his lawyer told him but she was still going to talk to him. Sgt. Bortoluss told Mr. Norn he obviously had a side of the story and she wanted to hear it, she thought it was important and it would play a role in the investigation but right now only he knew his side.
[38] At one point Sgt. Bortoluss told Mr. Norn the police knew he had spoken with Tyler Ginn at 7:47 p.m., and they had a 2 minute phone call, which occurred after he had gone to the house and met with Tyler in the Honda Ridgeline. She wanted to know what this call was about. Did he warn Tyler about the fentanyl being strong? Did he warn Tyler not to take too much? She told him she thought that is what he did but it was too late as Tyler had already taken it and then he died. Mr. Norn told Sgt. Bortoluss she was wrong. She told him she did not believe he intended Tyler to die, this was what she was trying to get to the bottom of, this was his opportunity to tell the truth as opposed to two years from then, sitting in a courtroom facing a Manslaughter charge. Mr. Norn asked her, “Isn’t Manslaughter un…unintentional killing somebody?” and she responded, “Yes.” Mr. Norn responded, “So, if I say anything, it doesn’t help me either way.” It is my view this exchange clearly demonstrates that Jacob Norn had an operating mind and he understood what was happening during the interview, he understood his rights, and he was able to make choices as to what to say or not to say. As the Supreme Court confirmed in Oickle at para. 63, quoting Sopinka J. in R. v. Whittle, 1994 SCC 55, [1994] 2 SCR 914, at p. 936, 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.”
[39] Sgt. Bortoluss told Jacob she needed to know why he warned Tyler. If he was saying it would help him then he needed to tell her. He responded, “Well, I don’t know if it will if I talk. And I feel like I’ll be doing something that I shouldn’t supposed to be saying because my lawyer told me not to say anything. So, I feel like if what I said would help me, he would’ve said, to tell. You know what I mean.” In my view this also demonstrates that he knows and understood throughout the interview that anything he said could be used against him in court.
[40] Sgt. Bortoluss then told Mr. Norn that his lawyer was not there, this was a conversation between the two of them and if he thought this conversation with Tyler would help, he should tell her. This was his chance to tell her. He gets one chance and if he thought it will help, she needed to know. Mr. Norn then put a hypothetical to Sgt. Bortoluss, “If I did warn him, then you would have me saying that I warned him. Therefore, admittance.” Again, in my view this also clearly demonstrates that Jacob Norn fully appreciated and understood the choice he had whether to speak to Sgt. Bortoluss or remain silent.
[41] After Mr. Norn’s hypothetical, Sgt. Bortoluss put a number of pieces of evidence that were obtained by the police during their initial investigation after Tyler Ginn’s death was discovered on March 12, 2021. She told him the police knew Jacob gave Tyler Fentanyl. They knew he drove to Tyler’s house in the Honda Ridgeline on March 11. They knew he arrived at 7:29 p.m. and left at 7:31 p.m. and that Tyler e-Transferred $20 to Mr. Norn. Sgt. Bortoluss then went through the SNAPCHAT conversation between Tyler and Jacob on March 11. Mr. Norn’s response to her was “So, by the sounds of all of that, that’s enough to charge me, right, with it?” When Sgt. Bortoluss told him she hadn’t charged him yet, he responded, “Well then that just makes me see, like, what I have to say is just gonna put me in a deeper hole.” When she asked why would it put him in a deeper hole, he told her, “Well, not put me in a deeper hole, it would actually, I don’t know, I don’t think it would put me in a deeper hole, but I think you’re just trying to get me to say something I shouldn’t say.” Sgt. Bortoluss told him, “I’m not trying to get you to say anything you shouldn’t say.” She told him she was just giving him an opportunity to tell his side. Sgt. Bortoluss continued to ask about this call and give him an opportunity to give his side. This led to Jacob saying (page 26), “I asked for it back.” He told Sgt. Bortoluss the reason was “It didn’t feel right.” He told her that he used it himself, referring to the Fentanyl. Throughout the interview there were times that Mr. Norn would become upset and cry. Sgt. Bortoluss got the other officer to bring Kleenex. When she asked him if he used the same stuff he gave to Tyler, Mr. Norn said, “My lawyer told me not to say anything.”
[42] At one point in her questioning Sgt. Bortoluss got the quantity of “diz” or Fentanyl that Tyler Ginn was requesting from Jacob Norn as being point two (2) and Mr. Norn told Sgt. Bortoluss she was wrong. This occurred on a couple of occasions but ultimately she corrected herself and indicated it was a half a point.
[43] Sgt. Bortoluss asked Jacob to tell her why he wasn’t responsible for Tyler’s death. She asked if he did something to help him or was he upset because he didn’t say anything. Jacob said, “No I totally said something.” She asked him what he said because “on paper, you look responsible.” Jacob responded, “The text messages make it sound…make it seem like I’m responsible.” Sgt. Bortoluss asked him to explain it, this was all she was asking him to do. He was the only one who could tell her why he wasn’t responsible for Tyler’s death. All she had was what was on the paper but this was her and Jacob talking and this was his opportunity, when they were done the interview the opportunity’s done. (page33)
[44] Jacob asked again if he could call his mom because it would help with this investigation. Sgt. Bortoluss told him not right then as he was an adult. She told him this wasn’t like it was a chintzy weed charge when he was a juvenile, it was a different ball game. She told this was about a Manslaughter charge, he was an adult. She understood why he wanted to talk with his mom. She asked him what he thought his mom would want him to do. Jacob said, “I think she would advise me to do what my lawyer says. But I don’t know that for a fact.” Again, this is a further example, in my view, of Jacob Norn understanding he has a choice whether to speak or not speak. Throughout the interview Mr. Norn made decisions to speak about some things and not about others. Sgt. Bortoluss told him she thought his mother would tell him to tell the truth, that if he had a defence he should stand up for himself and say what happened. Sgt. Bortoluss told Jacob she thought it was weighing heavily on him that Tyler died and he said, “It’s tearing me apart.” He told her he thought she was just trying to make him say something to make him sound guilty, she was trying to get more evidence. Sgt. Bortoluss asked him why she needed more as she thought she had a lot and he agreed with her that she had a lot. Again, Mr. Norn clearly has an operating mind.
[45] The defence raised a concern that when Sgt. Bortoluss came back into the room after leaving for about three minutes (at page 37 and following) she raised with him that there was a difference between Murder, First and Second Degree and Manslaughter. She asked if he knew the difference between those. Mr. Norn responded, “I have a feeling Murder is intentional, Manslaughter isn’t.” Prior to this Sgt. Bortoluss on a number of occasions told Jacob that she did not believe he intentionally meant to hurt anyone (page 14) and she didn’t think he intended for Tyler to die (page 20) and she didn’t think he meant for Tyler to die – she didn’t think he wanted anyone to die (page30) and she told him “I know you don’t want to see Tyler die. I know that. Did you try and help him when you called him?” (page 31). Yet Sgt. Bortoluss advises Jacob (at bottom of page 38), “Now the question is, is it Murder or is it Manslaughter? Did you give him too much? Or was he just an addict and you were essentially giving him his medicine, that he needed?” Mr. Norn’s immediate response was “He was begging me for it. And I didn’t, I didn’t give him a lethal dose. You know I wouldn’t do that. Why would I want to see this guy die?” Sgt. Bortoluss responds that she doesn’t think he wanted to see Tyler die, but she didn’t know how much he gave Tyler. It is the defence position that this constituted an inducement by Sgt. Bortoluss.
[46] After Sgt. Bortoluss introduced the question whether it was Murder or Manslaughter, Mr. Norn clearly became more talkative and was trying to persuade Sgt. Bortoluss that he did not give Tyler a lot and he had told him many times about the dangers. He told Sgt. Bortoluss he took the same stuff. He repeated his earlier comments that after he gave it to Tyler it did not feel right and this was why he called him. Sgt. Bortoluss told Jacob if there was something in this last conversation with Tyler tell her, she was listening cause they were almost done, the opportunity was done. There was a long pause and finally Jacob said, “I’m not gonna say anymore today.” (page 43) Sgt. Bortoluss said, “Okay.” Jacob told her he knew she said this was the only opportunity and he knows he would like to tell her about the phone call in the future. She repeated there wouldn’t be an opportunity in the future but she wanted to know about it because she thinks it will help him because he thinks it would help him. Jacob repeats what he said previously, “I don’t know how it could help” “How could it help me? How do you know it can help me?’ Sgt. Bortoluss said she doesn’t know what he said to Tyler. He tells her what did it matter what he said and she told him if the whole context of the conversation was known it would at the very least show that Jacob cared and wasn’t trying to give some guy too much fentanyl and watch him die. To which Jacob responded, “You know I cared.”
[47] Sgt. Bortoluss told him to think about what they had talked about and left the interview room. When she returned she told him it was important for Tyler’s family to know in the future that Jacob cared and if he was ever to stand trial, a judge would know he cared, that he was not some savage drug dealer who gave Tyler too much fentanyl and then called him and told him to take it all. She was just trying to show he actually cared. Tyler was an addict and needed his medicine, he asked for fentanyl and Jacob gave him what he asked for and then called him to say it’s strong, don’t take too much and he didn’t even give him what he asked for. Jacob responds, “You know I’m concerned, you can tell the family that. And I can’t say anything else….” Sgt. Bortoluss then asks how much fentanyl did Jacob give him? He already said he gave him less so was it laced with something or did he give Tyler too much. Then she said, “Like, we’re sitting in the difference between Murder and Manslaughter here. What was your phone call? Was it a heads up, hey, I’m worried about you or was it a” and Mr. Norn interrupts her and says, “Definitely was not murder. We both know it wasn’t murder.” She responds, “Well, we both don’t know because I” and he says, “We both do know it…wasn’t murder. You do know it was not murder” and She says, “I don’t know,…it depends how much you gave him.”
[48] It is my view that by raising whether it is Murder or Manslaughter with Jacob Norn, Sgt. Bortoluss has potentially created a change in the jeopardy that Jacob Norn was facing. This certainly raises a potential violation of Jacob Norn’s s. 10(b) Charter rights; however, as a preliminary inquiry judge I do not have any Charter jurisdiction and cannot deal with that issue. Sgt. Bortoluss was questioned about this and it was suggested that her questions referred to above and the potential answers by Mr. Norn could make him a suspect in a murder. Her answer was, “There never was a murder investigation”, which I took to mean the police were not investigating Jacob Norn for that offence. As I expressed earlier Sgt. Bortoluss clearly stated to Jacob on a number of occasions that she did not believe he intended Tyler Ginn to die. She told Jacob Norn the investigation was into whether he would be charged with manslaughter. I do not know what Jacob Norn’s understanding was concerning this when Sgt. Bortoluss returned and raised this with him and that might be something that will be addressed at a later time. It is my view Sgt. Bortoluss was attempting to get Mr. Norn to fully describe the phone call Jacob had with Tyler after he gave him the “diz” or fentanyl. It is my view that Tyler decided to provide a more fulsome description of that conversation and the reasons behind him making it.
[49] After this Mr. Norn once again became more talkative and answered the questions being asked by Sgt. Bortoluss about “diz” being fentanyl, which he agreed it was and that Tyler knew this as well. Mr. Norn told Sgt. Bortoluss he did not know pure fentanyl from mixed fentanyl. He knew Tyler took fentanyl to get high and he did too. Tyler knew not to take too much, it wasn’t his first time using. Tyler knew “diz” was fentanyl. Jacob knew Tyler had purchased fentanyl previously to getting it from him. He warned Tyler not to take too much, in the car and on the phone. Tyler kept reassuring Jacob he would not take it all. When Jacob was asked how long had he been selling “diz” he said he doesn’t sell it, he uses it himself and Tyler kept begging him for it because he knew Jacob used it. He finally caved and sold it to Tyler. Tyler knew he was taking a risk by taking fentanyl because he’d done it before. Jacob told Tyler to only take one rock and Tyler agreed. When Sgt. Bortoluss asked if Jacob knew Tyler had taken it all he responded, “I didn’t. Did he take it all?” and “…if he took it all, then his intentions weren’t to get high, that’s all I can say.” (page 53)
[50] The interview ended with Sgt. Bortoluss asking Jacob Norn what his mom’s name and her phone number were and indicating she would call her to come to court the next morning. Sgt. Bortoluss told Mr. Norn that he had shown he cared about Tyler and Jacob said, “I do.” He told her that he and Tyler were friends and he never wanted this situation to happen. All of this has made him open his eyes, he can never do anything like this again and he wished the roles were reversed. When Sgt. Bortoluss asked if he wanted her to say anything to Tyler’s family, Mr. Norn said he’d say how sorry he was but they wouldn’t want to hear that, they want they son back and nothing can bring him back. He said he honestly didn’t think anything he could say they would want to hear, if there was one thing it is that he never intended for this to happen. He said again he called him because he literally had a feeling, an intuition. Mr. Norn’s concern was that everyone, his lawyer and his dad, just everyone was going to be “pissed” at him for speaking to the police.
[51] Based on the written submissions I received from counsel, it is my view the focus of the voluntariness analysis respecting Jacob Norn’s statement with Sgt. Bortoluss rests on whether the Crown has proven beyond a reasonable doubt that it was provided in the absence of inducements and oppressive circumstances that resulted in Mr. Norn’s will being overborne. From the comments by Jacob Norn I have identified above throughout my discussion of his statement it is my view it is clear that Jacob Norn throughout his statement had an operating mind as that phrase is understood in the caselaw. I did not take the defence to be submitting there were any threats by Sgt. Bortoluss or that she engaged in any impermissible police trickery. I further find Sgt. Bortoluss was very clear that she could not offer any overt promises or made any inducements such that Mr. Norn’s free will was overborne
[52] I find that the Crown has proven beyond a reasonable doubt that Jacob Norn’s statement to Sgt. Bortoluss was made voluntarily. When viewed as a whole in my view it is perfectly clear that Mr. Norn freely exercised his will to choose when and what to speak to Sgt. Bortoluss and when and what not to speak about. Throughout his interview he had no difficulty saying on numerous occasions he should not answer a particular question or he would not answer a question. Throughout the entirety of the statement I do not have a reasonable doubt Jacob Norn’s will was overborne.
[53] Considering the whole of the statement I am not concerned that Sgt. Bortoluss’ conduct created an atmosphere of oppression during Mr. Norn’s interview. In fact I find there was no atmosphere of oppression. Mr. Norn fully appreciated and understood the questions being asked of him and made his own decisions about whether to answer them or not. The defence submits that Sgt. Bortoluss took unfair advantage of Mr. Norn, given his age and what they term his fragile mental and physical state. There is no evidence to support that Mr. Norn was under the influence of a controlled substance or what his mental health issues were, if in fact he even had any. Considering the whole of the interview it is my view that Jacob Norn is an intelligent young man who fully appreciated his circumstances and made his own decisions respecting when and what he said.
[54] The defence argued the questioning was lengthy and aggressive; however, having observed the video-taped statement it is my view that Sgt. Bortoluss was anything but aggressive. She was empathetic and sympathetic towards Mr. Norn and in my view, she was quiet and calm in her demeanour and manner of asking questions. She showed him respect and at no time did she raise her voice or become angry or hostile with him. At no point did she ever threaten or attempt to intimidate him. There are many examples in the statement where it is abundantly clear that Mr. Norn was capable of making an independent choice of whether to speak or not to speak. He expressed on a number of occasions his belief that what he said to Sgt. Bortoluss could be used against him if he answered her questions. It is my view that the circumstances surrounding his interview and detention do not create any doubt as to whether Jacob Norn was able to make an independent choice to speak to the police or remain silent. I find his will was never overborne.
[55] The defence submitted that Sgt. Bortoluss in effect denigrated or undermined Mr. Norn’s counsel’s advice which resulted in denying his right to choose to remain silent. The fact Mr. Norn asserted his right to silence 17 or 18 times does not make the statement involuntary. In Singh the Supreme Court held this is but one factor a judge must take into consideration in assessing whether the Crown has met their onus. As I have already found, in my view Jacob Norn had no difficulty choosing to speak to Sgt. Bortoluss and at no time was his will overborne. There was no atmosphere of oppression. Looking at the whole of his statement it is my view he chose to speak to Sgt. Bortoluss and answer questions because of the guilt he felt from learning his friend Tyler Ginn had died from Fentanyl toxicity. As I indicated there were occasions where Jacob Norn was crying, particularly when the questions and his answers touched on Tyler Ginn’s death. It is my view his emotional upset was caused by this and he expressed this when he told Sgt. Bortoluss, “It’s tearing me up” when she asked how he felt concerning Tyler Ginn’s death.
[56] As a result of my finding that the Crown has proven beyond a reasonable doubt that Jacob Norn’s statement was voluntary, it is therefore admissible for the purposes of the preliminary inquiry.
Released: January 11, 2023 Signed: Justice Peter C. West