COURT FILE AND PARTIES

COURT FILE NO.: 10856
DATE: 2012-02-16
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Thomas Christopher Stephen Rafferty

BEFORE: Heeney J.

COUNSEL: Michael Carnegie, Counsel for the Crown

Dirk Derstine, Counsel for the Accused

HEARD: January 31, February 1, 7 & 8, 2012

ENDORSEMENT: C-8, D-5 (statements of the accused)

ENDORSEMENT

[ 1 ] In this motion, the Crown seeks an admissibility ruling with respect to two statements given by the accused to the police, one prior to his arrest and one immediately after. The accused had brought his own motion for relief under the Charter , but it is not being pursued because it relates to statements by the accused other than those discussed in these reasons, which the Crown does not seek to use.

[ 2 ] As far as I am able to determine, the accused said nothing inculpatory in either statement. Nevertheless, the Crown wishes to play the first statement, taken May 15, 2009, during its case, and to have the second statement, taken in the early morning hours of May 20, 2009, available for cross-examination in the event that the accused testifies. The sole issue to be addressed on this motion is voluntariness.

[ 3 ] Before moving to an analysis of these two statements, it should be mentioned that two other statements were discussed during this motion. One was taken May 22, 2009. In it, the accused said virtually nothing except that he wanted to speak to his lawyer and return to his cell. The supposed probative value of this statement is that, toward the end of the interview, D/Sgt. Smyth made an offer to have the accused help search for the body of Tori Stafford. The Crown proposes to use this in the event that the accused maintains that he was treated differently than his alleged accomplice, Terri-Lynne McClintic. I made an oral ruling that this statement was voluntary, but will defer my ruling as to whether it has any probative value until such time as the Crown proposes to refer to it, which may never happen at all.

[ 4 ] The other statement is one which was made on May 20, 2009, to undercover officers who were placed in the holding cells with the accused after the cautioned statement had been taken in the early morning hours of that same day. Counsel have agreed that the following statement by the accused is admissible: “Rafferty said he uses ‘Oxys’. If they are 80 mgs he takes 5 per day but if they are 40 mgs he takes 11-12 per day. If they are Percocet, he takes 20-30 per day.” The Crown does not seek to admit anything else said by the accused to the undercover officers.

[ 5 ] Moving now to the matters in dispute, I will deal first with the statement of May 15, 2009. It was an audio recorded interview by D/Const. Johnson and D/Const. Darmon, which occurred just after 7 p.m. at the residence of the accused. Both officers gave oral testimony during this motion. Much of their evidence addressed the status of their investigation at the time of the interview, and in particular whether the accused was considered to be a suspect, a person of interest, or merely someone who may or may not possess information useful to the investigation. That is because the obligation of the Crown to prove that the statement of the accused was voluntary arises at the same time as the obligation to caution the accused as to his right to remain silent. This latter obligation turns on whether the accused was a “suspect” at the time, or something less than that.

[ 6 ] All of this was clarified by Dambrot J. in R. v. D.(A.) , [2003] O.J. No. 4901 (S.C.J.) at paras. 62-75 :

In considering the admissibility of statements made by persons who are not under arrest and who have not been cautioned about their right to silence, two significant questions must be addressed. The first is: whom, if anyone, other than a person under arrest, should the police caution before commencing an interview? The second is: what are the consequences of not cautioning a person who should be cautioned? I can dispose of the second question briefly, and so will address it first.

With respect to the second question, I note that when the admissibility of a statement is considered, the fundamental concern is whether it was made voluntarily. The mere fact that a warning was given is not necessarily decisive in favour of voluntariness and admissibility but, on the other hand, the absence of a warning does not compel a Court to rule that the statement is not voluntary, and inadmissible. All the surrounding circumstances must be investigated. The presence or absence of a warning will be a factor and, in many cases an important one. ( See R. v. Boudreau (1949), 1949 26 (SCC) , 7 C.R. 427 (S.C.C.) per Kerwin J. at p. 433.)

With respect to the first question, I begin by noting that it has long been clear at common law that the obligation to give a caution arises in circumstances short of either arrest or detention. Returning to Boudreau , Estey J. stated, at p.449, that:

. . . when the police or others in authority have either arrested the accused or made up their minds that he is the party whom they will prosecute then before being questioned he should be cautioned or warned in a manner that will explain his position . . .

Recent cases reveal, however, that the goal posts have moved since 1949. A more contemporary formulation of the point at which the police should provide a caution might be inferred from the decision in Oickle , where Iacobucci J. stated, at p. 340, "the confessions rule applies whenever a person in authority questions a suspect." While Iacobucci J. did not say so, it is logical to conclude that the point in time from which the authorities have an obligation to satisfy the court that an accused's statement was made voluntarily is the same point in time when the authorities would be wise to caution an accused about the right to silence. This would assist in ensuring that the accused knows of the potential jeopardy being faced, and help to ensure that what is then said is said voluntarily.

This is consistent with the views of Trafford J. in R. v. Morrison , [2000] O.J. No. 5733 (Ont. S.C.J.) . He noted, at paragraph 56, that suspects who are neither under arrest nor detained nevertheless have a right of silence under s.7 of the Charter. He continued, "The interrogating officers do not have a duty to advise a person in those circumstances of the right to silence. However, the failure of the interrogating officer to caution such a person may in the circumstances of a case" have consequences.

Similarly, in R. v. Worrall , [2002] O.J. No. 2711 (Ont. S.C.J.) , Watt J. expressed the view that once a police officer has information that "would alert any reasonably competent investigator to the realistic prospect" that the death of the deceased may have been associated with an unlawful act committed by a person being questioned by that officer, the officer should tell that person that his or her answers could be used in evidence in a prosecution brought against him, even where that person is neither arrested nor detained. The "informational deficit" arising from a failure to so caution the accused is a consideration when the voluntariness of the statement is considered at trial.

Similarly, in R. v. Randall , [2003] O.J. No. 718 (Ont. S.C.J.) , O'Connor J. applied the protection of the voluntariness rule to any person whom the police "reasonably suspect may become an accused person", and that the failure to caution such a person is a consideration on the issue of voluntariness.

Having regard to the recent authorities, it does not appear to be controversial to conclude that when the police are questioning or wish to question a person about an offence, they should caution that person about their right to silence when that person is or becomes a suspect. The more difficult problem is defining the word "suspect". A dictionary definition of the word is unhelpful. The Shorter Oxford English Dictionary defines a suspect, in part, as "a suspected person", and the verb "to suspect", in part, as "[t]o imagine something evil, wrong, or undesirable in (a person or thing) on slight or no evidence." The ordinary meaning of the word, including as it does groundless speculation, cannot be the trigger for the need to provide a caution.

The Ontario Major Case Manual, which I have previously mentioned, defines a suspect as "A person an investigator reasonably believes may possess a degree of culpability in the commission of the criminal offence being investigated and there is some incriminating information linking the person to the crime." In my view, this places the bar too high, at least for the purpose under discussion.

The case law outside of the three recent cases I have mentioned also provides little guidance. In R. v. Morrison , at paragraph [50], Trafford J. concluded that the test was an objective one, and settled on the following. "A person is a suspect when, objectively viewed, the information collected during an investigation tends to implicate him/her in the crime."

As I have already noted, although he did not refer to the word "suspect", Watt J. expressed the view in R. v. Worrall that once a police officer has information that "would alert any reasonably competent investigator to the realistic prospect" that the death of the deceased may have been associated with an unlawful act committed by a person being questioned, that person should be cautioned.

In R. v. Randall , O'Connor J. adopted both formulations, and expressed the view that the test had both a subjective and an objective element.

In the end, I do not see a great deal of difference in these various formulations. The trigger for an expectation that the police will give a person being questioned a caution respecting the right to silence must be less than reasonable grounds to believe that the person committed an offence, but must surely be more than speculation, knowledge that other persons suspect that person, or even reliable information that, to the use the words of the Major Case Manual, a person's "background, relationship to the victim or the opportunity to commit the offence may warrant further inquiry".

[7] ... (continues exactly as in the source)

“T. A. Heeney J.”

Mr. Justice T. A. Heeney

Date: February 16, 2012