Supreme Court of Canada

Hobbins v. R., [1982] 1 S.C.R. 553

Date: 1982-04-05

Randy Steven Hobbins (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

File No.: 16382.

1982: March 24; 1982: April 5.

Present: Laskin C.J. and Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Voluntariness and admissibility of a confession—Accused making two statements two months apart—First statement ruled inadmissible—Whether second statement admissible.

At a trial by judge and jury, appellant was convicted of arson. On the voir dire, the trial judge ruled that the appellant’s statement, made to persons in authority on January 18, 1978, was admissible and had not been tainted by the prior inadmissible statement of November 24, 1977—one whose voluntary nature had not been established beyond a reasonable doubt. The trial judge also rejected appellant’s contentions that the statements were obtained in an oppressive atmosphere or through any inducement or threats. The Court of Appeal affirmed the judgment.

Held: The appeal should be dismissed.

While accused’s state of mind is relevant to the admissibility of a statement made by him to persons in authority, his own timidity or subjective fear of the police will not render a statement inadmissible unless there are external circumstances brought about by the conduct of the police to justify doubt as to voluntariness. In addition, there is no presumption of tainting merely because a prior statement had been ruled inadmissible. Factual considerations must govern, including similarity of circumstances, police conduct and the lapse of time between the obtaining of the two statements. There was no reason to interfere with the decision of the trial judge and the majority of the Court of Appeal admitting the second statement.

R. v. Precourt (1976), 1976 692 (ON CA), 39 C.C.C. (2d) 311; Director of Public Prosecutions v. Ping Lin, [1975] 3 All E.R. 175; Ward v. The Queen, 1979 14 (SCC), [1979] 2 S.C.R. 30; Horvath v. The Queen, 1979 16 (SCC), [1979] 2 S.C.R. 376; Rothman

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v. The Queen, 1981 23 (SCC), [1981] 1 S.C.R. 640; Boudreau v. The King, 1949 26 (SCC), [1949] S.C.R. 262, referred to.

APPEAL from a judgment of the Court of Appeal of Ontario (1980), 1980 73 (ON CA), 54 C.C.C. (2d) 353, affirming the conviction of the appellant on a charge of arson. Appeal dismissed.

Gerald R. Kluwak, for the appellant.

Murray D. Segal, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This is an appeal by the accused from a judgment of the Ontario Court of Appeal which by a majority (MacKinnon A.C.J.O., Howland C.J.O. concurring) affirmed a conviction of arson after trial by a judge and jury. Brooke J.A., dissenting, would have ordered a new trial. The accused was sixteen years old at the time of the offence charged against him. Without enlarging on his criminal record, it is enough to say that the present case was not his first encounter with the police.

Despite the dissent of Brooke J.A., leave to appeal was sought and given, apparently because there was no specification or certainty of the point of law on which the dissent proceeded. In his majority reasons, MacKinnon A.C.J.O. said that the sole issue in appeal was whether a second statement made by the accused to the police on January 18, 1978 was wrongly admitted. The ground of objection to admissibility was that the statement was tainted because an earlier statement made on November 24, 1977 was ruled inadmissible because in the circumstances recited by the trial judge, the Crown failed to satisfy him that it had proved voluntariness beyond a reasonable doubt. It was alleged here that there was a continuing taint which, notwithstanding the lapse of time between the two statements, adversely affected the admissibility of the second statement. I shall come to this submission shortly.

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The trial judge had held on the voir dire on admissibility that neither statement was obtained through any inducement or threats or worse and these findings were confirmed in the majority reasons and, indeed, were not challenged in the dissent. The dissent proceeded on another ground which, to put it generally, was oppressive treatment of the accused or police conduct which had that effect upon him. The accused testified at the voir dire but did not give evidence at his trial proper.

Although MacKinnon A.C.J.O. specified a i single issue only as being involved in the appeal, counsel for the accused argued another point in this Court. It was that the trial judge had failed on the voir dire to address the question, said to be raised by the evidence, whether the accused subjectively was not in a state of fear indicated, inter alia, by his expressed unwillingness to accompany the police officers for interrogation in respect of the second statement. The accused had been convicted of another charge before being tried for arson, and it was when he was in gaol on that charge that the police (the same two who had taken his first statement) removed him to the central police station pursuant to a so-called warrant of deliverance, issued improperly by a justice of the peace but in accordance with a practice followed at the time but now discontinued. Brooke J.A. in his dissent dwelt on this impropriety.

I have nothing to add to the comprehensive reasons of MacKinnon A.C.J.O. which, in my opinion, are dispositive of the appeal, limited as it is in this Court to questions of law. Brooke J.A. asserted that there was “a fundamental factual issue in evidence relating to the taking of the second statement” and that this made it wrong to say that the Crown had met the onus of proof of voluntariness. Although it was open to the Court of Appeal to dispute a factual consideration, this Court does not have that leeway. What affected

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Brooke J.A. was that the accused had been put in a locked room on the occasion of the taking of each of the two statements; that he had not been charged until the second statement was taken. He did not wish to go with the police on either occasion. His rights were consequently ignored and there was oppression or coercion in this which should have persuaded the trial judge not to admit the second statement.

The trial judge dealt with this matter adversely to the accused as did MacKinnon A.C.J.O., and I do not find any reason to quarrel with their determination, even if it be considered to involve a question of law alone. However, factual differences are evident in the two situations and it was for the courts below to assess and weigh the facts.

I should like, however, to consider briefly the two points raised here as to subjectivity and tainting. The subjectivity point is based on a contention of counsel for the accused that the trial judge fastened on the propriety of the conduct of the police rather than on the effect that their conduct and, indeed, the entire surrounding circumstances had on the mind of the accused. The contention, in short, was that the first confession was held to be inadmissible not because there was an inducement or threat, but rather because obtained in an atmosphere of oppression or coercion. The tainting point is simply that the circumstances surrounding the second confession were similar to those surrounding the first and the oppression continued to operate upon the accused so as to taint that confession.

There is no doubt that the state of mind of the accused is relevant to the admissibility of a statement made by him to the police after interrogation, and even if he has been cautioned, as was the case here in respect of the second statement. An atmosphere of oppression may be created in the

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circumstances surrounding the taking of a statement, although there be no inducement held out of hope of advantage or fear of prejudice, and absent any threats of violence or actual violence. However, and counsel for the appellant accused conceded this, an accused’s own timidity or subjective fear of the police will not avail to avoid the admissibility of a statement or confession unless there are external circumstances brought about by the conduct of the police that can be said to cast doubt on the voluntariness of a statement or confession by the accused or there are considerations affecting the accused, as in the Ward case, infra, which would justify doubt as to voluntariness. In this respect, it does not, of course, matter that the police did not commit any illegality if the circumstances of the interrogation, including time and place and length of interrogation, raise or should raise doubt in the trial judge whether the statement or confession was freely and voluntarily given.

There is no need to canvass any of the numerous authorities which were put before us, most of which were canvassed by the Court of Appeal. Mention may be made of R. v. Precourt (1976), 1976 692 (ON CA), 39 C.C.C. (2d) 311 which the trial judge considered and distinguished; Director of Public Prosecutions v. Ping Lin, [1975] 3 All E.R. 175; Ward v. The Queen, 1979 14 (SCC), [1979] 2 S.C.R. 30; Horvath v. The Queen, 1979 16 (SCC), [1979] 2 S.C.R. 376 and Rothman v. The Queen, 1981 23 (SCC), [1981] 1 S.C.R. 640. The trial judge rejected contentions on behalf of the accused and the evidence of the accused on the voir dire designed to show oppressiveness and coercion, and the careful canvass of the issue by MacKinnon A.C.J.O. makes it clear that there was no factual foundation to support the challenge to the admissibility of the second statement.

The tainting contention advanced here has been but peripherally considered in this Court. Estey J. adverted to it in Boudreau v. The King, 1949 26 (SCC), [1949] S.C.R. 262, at pp. 285-86 and his observations were referred to by Beetz J. in Horvath v. The

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Queen, supra, at p. 429. The latter emphasized the prime importance of the time interval between the two statements. Certainly here there was a considerable time lag, enough to dissipate any lingering effect of the first statement, and the circumstances in which and under which it was made, upon the second statement. There was no advertence to the first statement when the second one was taken. The accused knew at the time that the police had additional evidence which prompted the interrogation of January 18. I am not prepared in such a case as the present one to declare that there is a presumption of tainting merely because the prior statement had been ruled inadmissible, a ruling based on failure of satisfactory proof by the Crown. In any event, since the Crown has the burden of proof in respect of the admissibility of any statement taken by the police from the accused, the suggested presumption could only go to the convincing nature of the proof.

There can be no hard and fast rule that merely because a prior statement is ruled inadmissible a second statement taken by the same interrogating officers must be equally vulnerable. Factual considerations must govern, including similarity of circumstances and of police conduct and the lapse of time between the obtaining of the two statements. Here the trial judge and the majority of the Court of Appeal found that different conclusions were proper as to the admissibility of the two statements. I would not interfere with their determination that the second statement was properly admitted.

I would, accordingly, dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: Gerald R. Kluwak, Toronto.

Solicitor for the respondent: Murray D. Segal, Toronto.