COURT FILE NO.: 10-G871

DATE: 20120404

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOSHUA MANNELL

Defendant

F. Hawthorn, for the Crown

S. McNamara, for the Defendant

HEARD: April 3 & 4/ 2012

Justice B.A. Glass

RULING ON VOLUNTARINESS OF STATEMENT OF JOSHUA MANNELL

There is an order Banning the Publication of Any Information That Might Name or Identify the Complainant

[1] On May 26, 2010, Joshua Mannell was interviewed by Detective Sergeant Scott Johnston. This was part of a polygraph interview.

[2] The defendant was advised at the commencement of the interview that the polygraph results could not be admitted at any subsequent court proceeding; however, the officer cautioned the defendant that he could be called to court to state what Mr. Mannell told him exclusive of the polygraph results. The defendant was given an opportunity to call his lawyer and declined. He was advised of the opportunity to speak with a Legal Aid lawyer as well. He understood that he was not under arrest, could walk out of the police station whenever he wanted, the door was unlocked and that he was not detained.

[3] Mr. Mannell signed a consent to participate in the polygraph test.

[4] All was recorded on video.

[5] The two witnesses at the voir dire were Detective Sergeant Scott Johnston and Joshua Mannell.

The Issue

[6] Was the statement provided with the exclusion of any reference to a polygraph test and its results a voluntary statement to a person in authority and therefore admissible into evidence?

The Evidence

[7] The defendant had spoken to the police two weeks before the polygraph test which was conducted on May 26, 2010.

[8] The defendant knew his counsel, Mr. McNamara, and did not contact him during this two week interval.

[9] The defendant wanted to give a polygraph statement to convince the police that he did not touch the complainant child. He was thinking of a fact situation mentioned by a police officer. There had been an inquiry about touching the child complainant and pulling off her pants or being involved in such activity with another person.

[10] The defendant was given a ride by the police to the police station.

[11] Detective Sergeant Johnston explained the polygraph test procedure and advised Mr. Mannell that although the results of the polygraph test could not be used in court, what the defendant said could be. The defendant understood this information. Further, the defendant signed a consent to participate in the polygraph test after reading the form and answering questions that indicated to the officer that Mr. Mannell understood the form.

[12] Officer Johnston explained that Mr. Mannell was not under arrest and that he could leave the building whenever he wanted. He could end the questioning anytime. He could call a lawyer anytime. If he had a lawyer, the lawyer could be contacted, or he could speak with a Legal Aid lawyer. Detective Sergeant Johnston said that the polygraph test is a voluntary one if it is conducted. The defendant could leave anytime he chose to do so.

[13] Mr. Mannell did not want to call a lawyer. Throughout the time he was with the police, Mr. Mannell did not ask to contact any lawyer, did not state he wanted to end the interview or say that he wanted to leave the building.

[14] The officer reviewed questions that he and Mr. Mannell developed for the polygraph. During this time, there was considerable discussion between the officer and the defendant. The defendant indicated that he was not comfortable with the whole process but wanted to participate. Basically, he indicated that he wanted to provide answers to end the inquiry about the female complainant and him.

[15] Some questions focused on personal actions of the defendant. Sometimes, the officer was blunt, forthright and pushy with comments and questions.

[16] At the commencement, Mr. Mannell stated that he wanted to be vindicated and that he was there for questions about being part of a sexual assault upon KS. He understood that KS alleged that the defendant held her down while another person took off her pants.

[17] The officer told Mr. Mannell that some of his comments about his sexual activities were not in line with normal sexual activity by Canadian society. When Mr. Mannell told about breaking his brother’s nose one time, the officer was critical of him for such conduct. These comments and questions did carry the purpose of unsettling the person.

[18] Detective Sergeant Johnston never considered arresting Mr. Mannell. The officer did not think that the jeopardy of the defendant changed during this process. He understood that Detective Tim Brown would not arrest Mr. Mannell that day.

[19] Officer Johnston explained that he did not reveal the test results to Mr. Mannell. He told Mr. McNamara that in fact Mr. Mannell passed the test. He was surprised and then asked some more questions because he did not think that the charts for the polygraph were reliable.

[20] Joshua Mannell testified at the voir dire. He had gone to answer questions in a polygraph test having spoken to an officer two weeks previously. He went to clear himself about allegations of holding down KS while another male removed her pants. The questions covered more than these initial facts. The defendant did not leave because he thought he could clear up any small point. He was saving time having to come back to the police office again.

[21] Mr. Mannell found the questions about sexual deviancy to be unsettling. He felt guilt about hurting his brother when he broke his nose. He was sad and not happy with himself.

[22] Officer Johnston did not tell him whether or not he passed the test; so, he concluded that he failed the test. If he had been told he passed the test, he thought he probably would not have answered more questions and probably would have called Mr. McNamara.

[23] Mr. Mannell confirmed that he knew he was not under arrest when he came to the police station. He knew he did not have to answer questions. He could leave whenever he wanted to do so. He could call a lawyer anytime.

[24] Mr. Mannell testified that he was not drunk or under the influence of drugs when he participated in the polygraph test. He had not thought to call Mr. McNamara before doing the test. There was no threat or inducement projected to him prior to answering questions. Revealing about breaking his brother’s nose bothered him because that had been only within the family and might become public knowledge after the test.

Positions of the Crown and the Defence

[25] Both sides accept that the Crown bears the responsibility of proving voluntariness of a confession beyond a reasonable doubt.

[26] The Crown submits that she has done so. The police are not prevented from using tricks and pressure. In so many words, the ultimate rules of etiquette are not expected of police. The questions that might knock the person being questioned off balance have not crossed the boundary of permissible conduct.

[27] Ms. Hawthorn points out that the defendant was not under the influence of any substance, was not the subject of any threat or inducement. He was not answering questions out of fear. The bottom line is that this whole process was voluntary. Mr. Mannell was given the opportunity to leave, to refuse to answer questions, to call a lawyer, and he did not do so.

[28] The primary case relied upon by the Crown is R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No 38. The boundaries of police conduct are mapped out in that decision by the Supreme Court of Canada. Ms. Hawthorn points out that police can pursue questioning even after the person has said they do not want to speak anymore. That was enunciated in R. v. Singh.

[29] On the other hand, Mr. McNamara submits that the defendant’s evidence shows that he went to talk about one set of events and ended up talking about more. The officer made suggestions that in effect set up the defendant to be feeling uncomfortable. This was improper. Also, the officer should have reported to Mr. Mannell whether he passed the test. The officer went back to more questions which led to a confession almost immediately after resuming to question the defendant.

[30] Mr. McNamara referred to a number of cases that pre-dated R. v. Oickle. He suggested that they still applied. By suggesting to Mr. Mannell that he was a sexual deviant, he weakened the state of Mr. Mannell. Detective Sergeant Johnston did not remind Mr. Mannell that he could leave, could call a lawyer and could remain silent.

[31] Mr. Mannell testified at the voir dire that he told the officer what he thought he wanted to hear.

Analysis

[32] I am satisfied that this statement is a voluntary one proven to be so beyond a reasonable doubt. Mr. Mannell had two weeks to decide whether to do the test. He could have called his lawyer during those two weeks, but did not do so. Detective Sergeant Johnston was comprehensive with his explanation about the polygraph testing, with his caution that the defendant did not have to answer any question, that he could leave whenever he chose to do so, and that he could speak with any lawyer or one through the Legal Aid Ontario Plan.

[33] Mr. Mannell signed a consent to the polygraph testing after reviewing it with Officer Johnston and after answering questions to show he understood what he was doing.

[34] There is no evidence of any threat or inducement involved with Mr. Mannell.

[35] The defendant did not want to talk to his own lawyer, to any lawyer or to take advantage of a lawyer through the Legal Aid Plan.

[36] Mr. Mannell was not deprived of an operating mind to remain silent. He was not overpowered by Detective Sergeant Johnston so that he just shut down or gave up to the questioning of the officer.

[37] The fact that the questions included information beyond whether he held down the complainant while another male pulled off her pants does not remove the confession from being voluntary. He wanted to get on with giving his rendition of events. As the questioning continued, he chose to answer more. There was no indication that he was stressed. He did not like the whole process from the beginning, but he wanted to participate. He made the choice to do.

[38] Questions about conduct of the defendant that he might have felt uncomfortable revealing and suggestions of deviant sexual behaviour were fair game and did not cross any acceptable threshold.

[39] Mr Mannell was not under the influence of any substance either.

[40] The defendant appeared on the video-recorded statement to be composed. He spoke clearly. Mr. Mannell did not misunderstand what was occurring. The officer gave him every opportunity to do whatever he chose to do.

[41] The bottom line is that after all was said and done, he is now faced with a confession freely and willingly given. Detective Sergeant Johnston did not cross any boundary thereby removing Mr. Mannell from having an operating mind. There might be occasions when an officer might pass the threshold of acceptability, but this is not one of those times.

“Justice B.A. Glass”

Released: April 4, 2012