DATE: February 6, 2024
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
IAN SIMON ROONEY
Before Justice Berg
Released on February 6, 2024
RULINGS ON VOLUNTARINESS AND CHARTER APPLICATIONS (10(a) and(b))
Counsel: T. Radcliffe.................................................................................counsel for the Crown E. Granger, H. Drennan.......................................................... for the defendant
Berg J.:
[1] It is alleged that between the 15th and 16th days of September, 2022, Mr. Rooney unlawfully caused the death of Yu Kun Xie and thereby committed the offence of manslaughter contrary to s. 236 Criminal Code. A 10-day trial has been fixed to commence today. Both the Crown and the defence had brought the above referenced pre-trial motions. Evidence was received and argument heard on December 11 and 12. This present judgement is the decision on both of those applications. I note that I advised counsel of the outcome of these applications on January 10. The decision, nonetheless, is written in the present tense.
[2] The Crown application is for a ruling that a two-hour statement made by Mr. Rooney to the police was voluntary. The defence Charter application is in relation to that same statement. Mr. Rooney submits that his rights pursuant to s. 10(a) and s. 10(b) Charter were infringed by the police and that the statement that must be excluded from the trail pursuant to s. 24(2) Charter as its admission would bring the administration of justice into disrepute.
[3] The only evidence heard on these two applications was adduced by the Crown. The two proceedings were conducted in a blended fashion, thus; the evidence is applicable to both hearings. As well, this evidence will be applicable to the trial proper without the need to recall the witnesses who have testified. Of course, despite the fact that these two applications have been heard in a blended fashion, the onus on the voluntariness voir dire is that of the Crown and must be established beyond a reasonable doubt while the defence bears the onus on the Charter application; that onus is on the balance of probabilities. It goes without saying that with regards to the trial proper, the onus is on the Crown to prove the case against Mr. Rooney beyond a reasonable doubt. I turn now to the evidence.
The Evidence
[4] I have no concerns with the credibility or reliability of any of the witnesses that testified. I accept their evidence.
[5] The first witness called was Sergeant O’Connell-Smith. He was dispatched at 02:29 hrs. to apartment 208 at 865 Gladstone Ave. Paramedics on scene had requested that police attend as they had located a woman apparently vital signs absent and a male was being aggressive with them. He arrived at the apartment building at 02:34 hrs. He observed a woman being loaded into an ambulance and two constables talking to a paramedic in the front lobby. He instructed one of those officers, Munroe, to follow the ambulance to the hospital. The other constable, Vanderheiden, advised him of what he had learned from the paramedics: the woman in the ambulance was Yu Kun Xie, her face was swollen and the paramedics believed that she had been assaulted by the male.
[6] The two officers then took the elevator to the second floor. When the doors opened, they found themselves face to face with the man whom they later learned to be Mr. Rooney. He began demanding to know to where Ms. Xie was being taken. At that point, Constable Vanderheiden asked Mr. Rooney to stop talking. Sergeant O’Connell-Smith then observed the constable place the accused under arrest for aggravated assault just outside of the elevator and then read him the rights to counsel and the cautions and s. 524 warning. Mr. Rooney became more confrontational with the officers during this process.
[7] Mr. O’Connell-Smith then went to the hospital to get an update on Ms. Xie’s condition. He arrived there at 02:53 hrs. and spoke to a doctor who advised him that the patient had sustained a massive brain bleed and that the injuries would be fatal. The doctor told the sergeant that he estimated that she would die within the following couple of days. Mr. O’Connell-Smith recognized that Mr. Rooney’s jeopardy had just changed and so contacted Constable Vanderheiden and instructed him to caution the accused that the charges would be upgraded to murder. The sergeant testified that he had spent seven years in the homicide unit and was familiar with that type of investigation. When he received the information from the doctor, he considered the most serious offence that the accused could face upon the death of Ms. Xie and believed it to be “one of the homicides.”
[8] During cross-examination, Mr. O’Connell-Smith explained that he has no entry in his notes about his call with Mr. Vanderheiden and he does not remember it verbatim. His recollection is that he told the constable that the charge was going to be upgraded to murder and he, the constable, was to caution him accordingly. He did not recall if he had told Mr. Vanderheiden to re-arrest Mr. Rooney for murder but testified that he believed at that time that there were grounds to do so as he had been informed by the hospital that Ms. Xie’s injuries were going to be fatal. Thus, Mr. Rooney needed to be informed of this so as to be able to properly confer with counsel. During reexamination, Mr. O’Connell-Smith clarified that while there was no entry in his notebook about the conversation with the constable, there was a reference to it in his investigative action report.
[9] I next heard from Constable Vanderheiden. He, too, was dispatched to the Gladstone Ave. address at 02:29 hrs. to assist the paramedics who were dealing with a suspicious situation with a woman vital signs absent. He arrived on scene at 02:32 or 02:33 hrs. Ambulance and Fire Services were already there. He entered the lobby of the building and as he did so, the paramedics were exiting with their patient. He observed Ms. Xie’s lips to be swollen and her left eye was swollen shut. He had a very brief conversation with one of the paramedics who advised him that she believed that the patient had been assaulted. She also told him that when she and her colleagues had asked the accused what had happened, he had become argumentative with them and a fire fighter had had to step in. The paramedics did not mention the name of the man in question.
[10] He and Sergeant O’Connell-Smith then entered the elevator and ascended to the second floor. As soon as the doors opened, Mr. Vanderheiden observed Mr. Rooney standing right in front of them and assumed that this was the man whom had been mentioned by the paramedics. Immediately, he asked the police officers where Ms. Xie was being taken. The constable, immediately, cautioned him in order that he not say things that could be used against him in court. Right after the caution, Mr. Vanderheiden decided to arrest Mr. Rooney for aggravated assault and did so at 02:36 hrs. He then immediately read out the accused’s rights to counsel, cautions and s. 524 warning. During this process, when asked whether he wished to speak to a lawyer, he responded “Of course. I guess I have to keep my options open.” Also during that process, Mr. Rooney took exception to the wording of the s. 524 warning that was read out by the constable, pulled away from the constable and began to yell and scream. Mr. Vanderheiden and the sergeant then took Mr. Rooney to the lobby and out to a patrol car. Mr. Vanderheiden then drove the accused to the central cell block.
[11] Once at the police station, the accused was paraded and then searched. During the search, Mr. Vanderheiden noticed cuts to Mr. Rooney’s hands and made arrangements to have a forensic officer attend to documents those wounds. Meanwhile, Mr. Rooney was given an opportunity to speak to counsel. He asked to be put in contact with Lawrence Greenspon. Constable Vanderheiden located two telephone numbers for that lawyer. He called the first one at 03:15 hrs. and left a voice-mail. He then called the second number but heard a tone which the officer interpreted as an indication that that number was not in service. He advised Mr. Rooney of his efforts and asked him whether he wished to wait for Mr. Greenspon to respond or have the constable try another lawyer. Mr. Roney indicated that he wished to wait for Mr. Greenspon to call back. Mr. Vanderheiden did not attempt to find another telephone number for this lawyer.
[12] A recording of the voice-mail left for Mr. Greenspon was entered as an exhibit. It became clear that Mr. Vanderheiden had not included his name as part of the message nor the police service from which he was calling. While it would have been preferable if he had, the message is otherwise clear and counsel would have been able to act on it:
Hello, this message is for Mr. Greenspon. I have, uh, Mr. Ian Rooney, 65-05-16. He’s been arrested for partner-related aggravated assault. He’s requested you for legal counsel. He can be reached at 613-236-1222, extension 5229. Thank you.
[13] The forensic identification officer then arrived at the cells as per the constable’s request. Mr. Vanderheiden left the accused in the custody of that officer. However, he returned after he was contacted by Sergeant O’Connell-Smith who had advised him that Ms. Xie’s condition had worsened and that it was not expected that she would survive due to the massive brain bleed. The sergeant instructed him to inform Mr. Rooney of his change of jeopardy. However, it was also Mr. Vanderheiden’s evidence that he could not recall whether the sergeant had tasked him with anything else. He could not recall at trial whether the sergeant had instructed him to rearrest the accused.
[14] Constable Vanderheiden then went to where Mr. Rooney and the forensic officer were located; this second interaction between them was captured on video and was played in court. Mr. Rooney had still not spoken with counsel. Mr. Vanderheiden, at 03:32 hrs., stated “I am arresting you for murder” to which Mr. Rooney responded “Oh my god.” While Mr. Vanderheiden testified during cross-examination that he believed at that time that he had had the grounds to arrest the accused for murder, it is clear that Ms. Xie was still alive although it was expected that she would die.
[15] The constable then read out the rights to counsel to Mr. Rooney again but this time inserted the word ‘murder’ instead of ‘aggravated assault’. The constable then asked him whether he understood, to which he responded in the affirmative. This was followed by the question “Do you want to call a lawyer now?”. When Mr. Rooney responded “What do you suggest?”, the officer told him that he could not give him any advice. At 3:33 and 3:34hrs., Mr. Vanderheiden read the cautions and s. 524 warning; the accused indicated that he understood all three. He also stated, after hearing the warning, “I understand. I’m in shock. I can’t feel anything. She was alive when they took her away.”
[16] A bit later during this interaction, Constable Vanderheiden told Mr. Rooney “I’m going to take you back to the booth where you make the lawyer phone calls. We’re going to try to call your lawyer again and advise him of the change in jeopardy.” The constable noted that Mr. Greenspon did not appear to be answering calls over night. There was then this interaction:
IR: Why don’t we wait til morning?
CV: So, we don’t want to force you to do anything either way. However, considering the changes in what is going on, we’re offering once again to call someone else, or we can wait for that phone call. It is entirely up to you in regards with the counsel. We’re not going to force it either way.
IR: I’d still [inaudible] call me back. I don’t [inaudible]. It’s 3:00 in the morning. I think I’m going to go and sit in that little booth and, nothing is going to happen.
CV: Okay. If you change your mind at any point, you can tell one of my special constables as they’re walking around. Let them know that you’ve changed your mind and wish to call.
IR: Okay.
CV: Also, before any interview is to take place, you will be asked again with regards to counsel or when, who was called?
IR: Greenspon.
CV: Mr. Greenspon calls back and requests you by name, okay?
[17] At 04:17, Mr. Rooney was offered another opportunity to call counsel but indicated that he did not see the point due to the hour. He was then walked to a cell.
[18] It was admitted that a telephone call was received from Mr. Granger, a lawyer who works with Mr. Greenspon, at roughly 09:50 hrs. Mr. Rooney spoke with Mr. Granger until 10:23 hrs. He was then returned to his cell.
[19] The next witness was Detective Marie-Josée Séguin who, on September 16, 2022, was with the Partner Assault Unit (PAU) of the Ottawa Police Service. She was assigned to be the lead investigator in this matter when she began her shift at 06:00 hrs. She therefore reviewed the notes and reports of the responding officers as well as other material. At 06:36 hrs., she contacted Constable Munroe who was still at the hospital and who provided the detective with an update. The constable had been told by a doctor that Ms. Xie had sustained a severe brain bleed and was not likely to survive. After this conversation, Ms. Séguin continued to review reports as they trickled in and started requesting further information and actions. She also conducted team meetings within the PAU; the homicide unit was not yet involved.
[20] It was her evidence that that morning she had been provided with different estimates of how long Ms. Xie would remain alive. At 09:27 hrs., she received a telephone call from a domestic violence nurse at the hospital. The nurse told her that a doctor had indicated that Ms. Xie would not survive her injuries. However, there was no indication as to when she would die.
[21] The detective was cross-examined at length about what she understood this information to mean. At the end of the day, Detective Séguin’s position remained that while she expected that Ms. Xie would die, she did not know when and, moreover, she had had the experience during her career of being told that someone might not survive but then that person did not die. Ms. Xie was still alive during the interview that this detective conducted with the accused.
[22] She reiterated in cross-examination that she had had a telephone conversation at 11:26 hrs. with a detective who was at the hospital and that she had been informed that Ms. Xie would die once taken off life support. There is no evidence before me that Detective Séguin was given any information about when that procedure might occur.
[23] Cellblock contacted Detective Séguin at 10:22 hrs. and advised that counsel Eric Granger was on the line and seeking information; this was after he had spoken with his client. The detective had the call transferred to her and spoke directly with Mr. Granger. She told him that Mr. Rooney would be taken to the courthouse that afternoon for a show cause hearing. She confirmed that his client was currently charged with aggravated assault but that could charge if Ms. Xie died.
[24] Then at 11:26 hrs., Ms. Séguin received a telephone call from a detective who had gone to the hospital. He passed on the information that he had received from a doctor that Ms. Xie would pass away once she was removed from life support. It was thus well within her contemplation that Ms. Xie would not likely survive. She testified that ultimately, on September 17 at 13:50 hrs., she learned that Ms. Xie had died.
[25] She began her interview of Mr. Rooney at 12:26 hrs. on September 16. This was at the cell block. She understood that Ms. Xie was still alive. It was also her understanding, based on the materials that she had reviewed that morning, that Mr. Rooney was under arrest for aggravated assault but he had also been cautioned for murder. As I eventually heard when the interview was played in court, the detective never told Mr. Rooney directly that Ms. Xie was definitely going to die. Mr. Radcliffe asked her whether that had been done to trick Mr. Rooney. She responded that she had told him about Ms. Xie’s medical status at the beginning of the interview. Specifically, she had told him that she was still alive but expected to die. However, she could not say when Ms. Xie would actually pass away. The video-recording of that interview was then played in its entirety. I will here quote or refer to only those portions relevant to either the issue of voluntariness or the Charter issues and make reference to the pages of the transcript prepared of that recording.
[26] The recording begins with Detective Séguin addressing the camera before she has brought the accused into the interview room. She mentions that he had been arrested for aggravated assault but notes “we’re going to have a discussion here about the possibility of charges being upgraded to either attempt murder of homicide” [at page 1/98]. Once Mr. Rooney has been seated, she provides him with an apple juice and indicates that she can get him more of the same should he wish, all he would have to do is let her know [at page 1/98]. I will not get into the details, but I note that the detective’s tone is unfailingly polite when she is speaking to Mr. Rooney throughout the interview.
[27] Early on in the interview [at page 2/98], Mr. Rooney makes reference to the fact that he is freezing. However, it soon becomes clear that what he was referring to was the temperature in the cell where he had been held and not the interview room.
[28] Detective Séguin then had Mr. Rooney confirm that he had spoken with counsel: Mr. Granger [at page 3/98]. She then read out the rights to counsel again referring to an arrest for aggravated assault and Mr. Rooney indicated that he understood. There was then this exchange [at pages 4-5/98].
MS Okay. So, I know that you’ve spoken to Eric already, Mr. Granger. However, Ian, if at any point in time while you and I are talking, you want to talk to him again, you let me know and I can facilitate that for you.
IR Yeah, okay. Okay.
Mr. Rooney then asked her how he would be able to contact her after the interview. She explained that she would provide him with her contact information. She then continued.
MS So, you’ve spoken to your lawyer, but right now you don’t want to talk to him again, or do you, do you prefer to talk? Cuz you spoke to Mr. Granger not long ago, right?
IR No. Yeah, it’s fine. Yeah.
MS Okay. But again, if you change your mind, you tell me and, uh, we’ll do that, okay?
IR Okay.
[29] The detective then explained that she was going to be cautioning him on three different charges. She added “Today we’re charging you with the one charge.” The interview continued [at pages 5-6/98].
MS I am hoping to get some side of a story. We’ll get there in a few minutes, cuz I’m, I’m sure there’s your side as well. There’s always three sides to every story, right? But I have to caution you about other offences and I can explain why after that, okay?
IR Mm-mm.
MS So, I’m going to be cautioning you today for one count of aggravated assault, one count of attempt murder, and one count of murder.
IR Okay.
MS Okay? And the reason I’m reading these to you and I’m telling you this is because we don’t really quite know just yet, um, how well the victim is g… is doing or is going to be doing.
IR Okay.
MS Okay? And so, this is why I have to read this to you. Okay?
IR Is she dead now?
MS She hasn’t, she hasn’t passed away, not, not as of yet. Okay? But there’s anticipation that that might be a possibility, and so, to make sure that I can cover your rights properly and do things properly …
IR (inaudible).
MS …I also have to inform you of that. Okay? Do you understand what I explained?
IR [nods his head].
MS Yeah. I can … I’ll finish reading this Ian….
IR (inaudible).
MS … and I’ll go get you some Kleenex, okay?
IR Ah, it makes me (inaudible).
MS So, let me get through this with you Ian. She’s, she’s alive right now, okay? So, there, there is that, okay? So let me get through this with you.
IR (Crying) She’s really, uh, she’s strong (inaudible), I’ll tell you.
MS She’s strong, you said?
IR She’s going to make it. I’m sure of it (crying).
Detective Séguin then read out the cautions with respect to the three charges as well as the s. 524 warning. Mr. Rooney indicated that he understood each. After that process, she again let him know that he could speak to Mr. Granger again should he so wish [at page 9/98].
[30] The detective and the accused began a general discussion of his relationship with Ms. Xie. Then [beginning at page 20/93], Ms. Séguin guided the conversation to the events leading up to Ms. Xie’s injuries.
MS Okay. Can you talk to me a little bit about your day yesterday with you and Yu Kun? I have more juice too. If you need some, I can get more for you if you like.
IR Okay.
MS Yeah.
IR Anyways, the lawyer, I talked to the lawyer …
MS Yes.
IR … and he told me not to talk about anything.
MS Yeah. And that’s okay, right?
IR I’d love to explain everything in complete detail.
MS Yeah. That’s …
IR (inaudible).
MS your right, and the lawyer’s right that you don’t have to talk to me, right? I’m here essentially because I don’t, I wasn’t there. Right?
IR (inaudible).
MS So, I don’t know what happened, of course. I only have one side of the story. I’m not getting it from Yu Kun, obviously, cuz she’s not talking now. Right?
IR (inaudible).
MS So, I’m only getting the information from what the officers saw, the paramedics, the fire fighters …
IR Mm-hm.
MS … and obviously the doctors at the hospital are telling us some things and, and what not, right?
IR Yeah.
MS And so I have some information that I would like to talk with you about. You don’t have to. Right? It’s completely up to you if you want to discuss things with me. So, what I think I might do then, Ian, is just tell you a little bit about what I know …
IR Okay.
MS … and if there’s anything you want to correct me on or anything you want to add, that is your choice. I’ll let, leave the decision up to you.
IR Alright.
MS I don’t want you to feel like you’re being forced to talk. I would love to get your side of the story, cuz I know there’s more than one side. Right?
IR Okay.
Within seconds of this exchange, Mr. Rooney begins to discuss the events that led him to be charged with the present offence. However, after a while, he stops [at page 23/98ff.].
MS … Is that truthful?
IR I’m not, I’m not going to answer any questions.
MS That’s okay.
IR My lawyer told me not to answer any questions.
and tells the detective that “But a lot of it, as far as I’m concerned is not true.” Detective Séguin then states [at pages 24-25/98]
What, so when you say that a lot of it’s not true, like I’m here to, I’m here to … how can I say? I’m here to, like, figure what happened. Right? Like, it’s a big puzzle piece to me right now cuz I only have one big, one big piece, right? And I know there’s your side of the story. I can tell from the injury that you have, obviously. But I’m trying to fill in the blanks as to what happened. Um, you know, she’s in serious condition, right? And …
IR Yeah.
MS she’s not doing well.
He then begins to talk again about what occurred. But not without first referring to the fact that Mr. Granger had told him not to do so [at page 27/98].
[31] Towards the end of the interview, Detective Séguin had Mr. Rooney confirm that he had not been forced to talk to her during the course of the interview [at page 94/98]. He also confirmed that he had been treated fairly while at the police station but once again noted that he had been told by his lawyer not to talk to the police “And I just decided, I told you everything that happened” [at page 95/98]. He amplifies on this theme a short while after, stating “It was self defence and that’s, that was why I decided to tell you everything” [at page 96/98].
[32] At page 97/98, there is the following exchange between the accused and the investigator. While it occurred after Mr. Rooney had provided his substantive narrative, it may still nonetheless be illustrative of what he was thinking at the time: “The woman I love, I don’t know if she’s dead or alive. I don’t know if I’m going to, I don’t know what’s going to happen to me” to which Ms. Séguin responds
So, I’m going to explain that to you right now to give you a little bit more, like, relief, if, there’s such a thing in a place like this. But so right now today as you and I talk, you’re being charged with one count of aggravated assault. If Yu Kun’s condition changes or anything, for example, if she does pass away, these charges will be upgraded, okay, to either manslaughter, attempt murder, … uh, not attempt murder, sorry. Manslaughter or homicide or murder, okay? And it when if that does … I shouldn’t say when, if that does happen, we will notify you and we will notify your lawyer as well. It’s not like we’re just going to do it out of the blue. There, we have, by law, we have to tell you.
IR Okay.
MS But today it’s one count of aggravated assault, okay, because Yu Kun is still alive, okay? She’s in very critical condition, but she’s still alive.
IR (inaudible).
The Law of Voluntariness
[33] The Crown seeks to prove beyond a reasonable doubt that the above statement made by Mr. Rooney to the police was voluntary. The leading case on the voluntariness of statements to persons in authority is R. v. Oickle, 2000 SCC 38. As summarized for the majority in that decision at paragraph 69,
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.
[34] In Oickle, the Supreme Court established a framework for the analysis of voluntariness. As Mr. Rooney has conceded that there is no concern in his case that he was threatened or induced or that he lacked an operating mind at the time of his interview, I need not deal with those factors. My focus will be on police trickery.
[35] The relevant passage from Oickle can be found at paragraphs 65-66 under the heading “Other Police Trickery”.
65 A final consideration in determining whether a confession is voluntary or not is the police use of trickery to obtain a confession. Unlike the previous three headings, this doctrine is a distinct inquiry. While it is still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system. Lamer J.’s concurrence in Rothman, supra, introduced this inquiry. In that case, the Court admitted a suspect’s statement to an undercover police officer who had been placed in a cell with the accused. In concurring reasons, Lamer J. emphasized that reliability was not the only concern of the confessions rule; otherwise the rule would not be concerned with whether the inducement was given by a person in authority. He summarized the correct approach at p. 691:
[A] statement before being left to the trier of fact for consideration of its probative value should be the object of a voir dire in order to determine, not whether the statement is or is not reliable, but whether the authorities have done or said anything that could have induced the accused to make a statement which was or might be untrue. It is of the utmost importance to keep in mind that the inquiry is not concerned with reliability but with the authorities’ conduct as regards reliability.
66 Lamer J. was also quick to point out that courts should be wary not to unduly limit police discretion (at p. 697):
[T]he investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community. [Emphasis in original]
As examples of what might “shock the community”, Lamer J. suggested a police officer pretending to be a chaplain or a legal aid lawyer, or injecting truth serum into a diabetic under the pretense that it was insulin.
[36] Mr. Rooney submits that the police engaged in trickery, to wit: they misled him “as to the extent of his jeopardy by misleading him as to the true state of affairs in relation to Ms. Xie’s health”. This, he states, “amounts to an unacceptable police trick that undermines the voluntariness of his statements” [quotes from defence Form 2]. In addition, and here I will quote again from the Form 2, with Mr. Rooney “speaking in an extremely muffled tone throughout most of the interview, an appreciable portion of his responses to police questioning are inaudible leaving the record of the interaction and what statements were made by him inadequate to be able to make a finding of voluntariness beyond a reasonable doubt.”
[37] I will deal first with the issue raised concerning the adequacy of the recording of the interview. I agree with the defence that absent a proper and sufficient record of the statement at issue, a trial judge may well not be able to determine beyond a reasonable doubt that said statement was voluntary (see, for example, the comments in R. v. Moore-McFarlane at paragraph 67). However, I disagree that the present recording is so deficient that the evidentiary record is inadequate for the purposes of determining voluntariness to the required standard. This is not to say that certain very short passages might be deemed unreliable at the trial proper. However, most of what Mr. Rooney says during the interview can be heard and, importantly for our purposes at this stage, the inaudible portions have no real effect on my being able to determine the issue of police trickery (or, for that matter, the Charter issues).
[38] I turn now to the alleged trickery by the police. I find that Mr. Rooney was well aware of his jeopardy at the material time, to wit: from virtually the beginning of the period that he was in the interview room with Detective Séguin if not before. While he had originally been arrested and read his rights, etc. at 02:36 hrs. for aggravated assault, a little over an hour later, Constable Vanderheiden returned to where Mr. Rooney was with a forensic officer and placed him under arrest for murder and then read out the rights to counsel, etc. appropriate to that offence. The fact that Ms. Xie had not yet expired is of little consequence here.
[39] The formal interview began at 12:26 hrs. Early on, before the substantive questioning began, and in response to his question whether Ms. Xie was now dead, Detective Séguin told Mr. Rooney “She hasn’t, she hasn’t passed away, not, not as of yet. Okay? But there’s anticipation that that might be a possibility …” It is true that the detective was cognizant that Ms. Xie’s medically anticipated demise was more a high probability than a possibility. In the totality of the circumstances, however, Mr. Rooney was well aware of his jeopardy and had been so since 03:32 hrs. when he was ‘arrested’ for murder by Constable Vanderheiden. Ms. Séguin’s initial interactions with the accused in the interview room would have only reinforced his awareness. Yes, she did not tell him that Ms. Xie was going to die. But she did tell him that it was possible. This, on the evidence before me, inadvertent downgrading from probable to possible did not, I find, change anything. Mr. Rooney knew at the material time that he was being interviewed for allegedly having assaulted Ms. Xie, an assault that might still cause her death. He clearly understood his jeopardy.
[40] There was no police trickery and certainly nothing that would shock the community. I find that the Crown has proven beyond a reasonable doubt that Mr. Rooney’s statement to Detective Séguin was voluntary and is thus admissible.
Sections 10(a) and (b) Charter
[41] The defence submits in its Notice of Application that Mr. Rooney’s rights pursuant to s. 10(a) and s. 10(b) were breached. Specifically, it is submitted that
the police failed to bring home to the Applicant the extent of his jeopardy once it became apparent that the death of the deceased was inevitable and, therefore, that jeopardy for an offence that is different and much more serious than the aggravated assault charge that he had been arrested for and advised of his right to counsel for at the outset of his police interview was inevitable. The police failed to explicitly re-advise the Applicant of his right to counsel upon informing him of his change in jeopardy, nor explicitly providing him with the opportunity to re-consult counsel as a result of the change in jeopardy [paragraph 6 of the Applicant’s Factum].
[42] Section 10(a) requires that the police promptly inform a person under arrest or detention of the reasons therefor. As stated in R. v. Evans at paragraph 35,
When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).
Constable Vanderheiden satisfied this requirement initially when he arrested Mr. Rooney for aggravated assault at the apartment building. Once the police were informed that Ms. Xie would or might die, they were required to inform the accused, who was under arrest for aggravated assault, that his jeopardy had changed (see, for example, R. v. Sinclair, 2010 SCC 35 at paragraph 51; R. v. J.B., 2015 ONCA 684 at paragraphs 19ff.). Mr. Vanderheiden satisfied this obligation at 03:32 hrs. when he returned to where Mr. Rooney was being processed by a forensic officer and ‘arrested’ him for murder and read out the rights to counsel and cautions. Then, at the beginning of her interview with the accused, Detective Séguin advised him again of his jeopardy that would arise should Ms. Xie die. The word murder was used as was the term ‘attempt murder’. It is entirely reasonable to suppose that he understood that if she died, he would be charged with an offence more serious than aggravated assault, namely murder. There is no evidence before me from which I could potentially infer that Mr. Rooney did not understand his new jeopardy.
[43] Mr. Granger drew my attention to the decision of Pomerance J. of the Superior Court of Justice in R. v. Bercian, 2019 ONSC 208, specifically the language at paragraph 46.
Secondly, one of the manipulation strategies had the effect of misleading Bercian about the extent of his jeopardy. Paterson withheld the fact that the victim had died until midway through the interview. He did not tell Bercian this information until after Bercian had already incriminated himself, by falsely stating that he was not in the building that day. Certain tricks are permissible in police questioning. However, misleading a person about the extent of their jeopardy is not. It is critical that a person understand what is at stake when they decide to speak to police. Paterson wanted to see how Bercian would react and therefore kept this information from him. Even if the right to counsel had been provided, the failure to tell Bercian that the victim died would have violated his rights under s. 10(a) of the Charter.
However, as I have already indicated, Mr. Rooney was well aware of the fact that Ms. Xie might die even before the interview commenced. I find that there was no breach of Mr. Rooney’s s. 10(a) Charter right.
[44] I turn now to the alleged breach of his s. 10(b) rights. Section 10(b) Charter establishes the right upon detention or arrest of a person to retain and instruct counsel without delay and to be informed of that right. In most cases, once the person has been allowed to consult with counsel, the duty upon the police has been satisfied.
However, in some instances, a further opportunity to consult with counsel may be required where a change in circumstances necessitates a second consultation to fulfil the purposes of s. 10(b). One of the main instances in which an opportunity of a second consultation is required is where the accused faces a change in jeopardy. As explained by McLachlin C.J. and Charron J. in Sinclair, at para. 51:
The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation.
R. v. J.B., 2015 ONCA 684 at paragraph 20.
[45] By the time of the interview, Mr. Rooney had already spoken with counsel. When he did so, he had already been ‘arrested’ for murder by Mr. Vanderheiden; his new jeopardy had been explained to him. Detective Séguin once again satisfied the informational component of s. 10(b) with respect to aggravated assault at the beginning of the interview. From her perspective, Mr. Rooney could not be charged with murder yet as Ms. Xie was still alive. She then explored whether he wished to speak to Mr. Granger again. The accused indicated that he did not. She then explained his new jeopardy to him; this was in effect the same new jeopardy that had been explained by Vanderheiden at 03:32 hrs. Then, after providing him with the cautions and s. 524 warning, the detective once again stated that if he wished to speak to Mr. Granger again, she would arrange for that to happen. He chose not to do so. It is clear, therefore, that Mr. Rooney had consulted with counsel after learning of his new jeopardy and was later offered the opportunity to re-consult with counsel prior to being questioned by Detective Séguin.
[46] The Applicant submits that the detective “failed to clearly articulate” the jeopardy suggested by his being cautioned for attempted murder and murder. Specifically, she “failed to disclose to the Applicant during the interview that the death of the deceased was ‘inevitable’ or to correct any misapprehensions that the Applicant expressed in this regard.” First of all, this submission ignores the fact that Mr. Rooney had spoken to counsel after having been ‘arrested’, read the rights to counsel, and cautioned for murder. While it seems that he learned that Ms. Xie was still alive at or prior to the interview, it is impossible to see how he would not have been aware of the gravity of his situation when he began to speak to Ms. Séguin. Ms. Xie was in hospital and the police were talking to him about murder and seemingly had arrested him for that offence. Secondly, there is no evidence before me from which I could potentially infer that Mr. Rooney would have chosen to stop the interview and consult for a second time with Mr. Granger should he have been told that Ms. Xie was going to inevitably as opposed to possibly die.
[47] I find that there was no breach of Mr. Rooney’s s. 10(b) Charter rights.
Released: February 6, 2024 Signed: Justice Berg