COURT FILE NO.: CRIMJP3515/09
DATE: 20120419
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
L. Di Giulio, for the Crown
- and -
KENNETH GOBIN
B. Pearson, for the Defence
Defendant
HEARD: April 17- 18, 2012
REASONS FOR JUDGMENT
Hill J.
INTRODUCTION
[1] Kenneth Gobin pled not guilty to charges of robbery, having his face masked with intent to commit robbery, and use of an imitation firearm while committing robbery.
[2] The prosecution seeks to introduce a post-arrest statement by the accused to one of the investigating officers. That statement was videotaped. The Crown maintains that the statement is voluntary and admissible.
[3] The defence challenged the admissibility of the statement submitting that it was obtained in circumstances of oppression and was therefore involuntary.
[4] A confessional voir dire was held in which the prosecution called seven police witnesses in furtherance of its obligation to prove beyond a reasonable doubt that the accused’s statement was voluntary.
[5] The accused did not testify on the voir dire and called no evidence.
FACTUAL BACKGROUND
The “Car-Jacking” Report
[6] Constable Martin Callan of the Peel Regional Police Service (P.R.P.S.) testified that he was assigned to the Central Robbery Bureau (CRB) in August 2007. He had been a police officer for about 18 years. On August 5, at about 12:58 a.m., a call came from the P.R.P.S. communications centre providing information about a crime that had just occurred in Mississauga. The officer was informed that a carjacking had occurred by suspects armed with handguns. A white Toyota RAV4 vehicle with licence plate number AZRM 835 had been stolen from the victim.
[7] Constable Callan briefed Constables North and Gordon. The three constables were plainclothes officers of the CRB. Constable Gordon recalled that two suspects with firearms were involved who had approached the victim in her vehicle at her home and forced her to give up her belongings and vehicle. Constable Gordon, then a police officer for about 9 years, had been involved in the investigation of similar incidents in the same geographical area. His investigation had identified an area of northwest Toronto, the Weston Rd./Lawrence Avenue region, as a location for the drop-off point of stolen Toyota RAV4s and Camrys.
[8] The officers contacted the P.R.P.S. 11 Division Criminal Investigation Bureau (C.I.B.) to secure the scene of the robbery including an interview of the victim. The investigative plan was to proceed to the Weston Rd./Lawrence Avenue area in order to attempt to locate the stolen vehicle. Constables Gordon and Callan left in separate unmarked police cars. Constable Callan recalled that he put on his bulletproof vest and use of force gear and departed at about 1:05 a.m. Constable Gordon testified that he believed he too donned his vest with the word “Police” on the front and back and a P.R.P.S. insignia at the left chest pocket area.
Pursuit of the Stolen Vehicle
[9] As Constable Callan proceeded eastbound on Highway #401, he came upon the stolen RAV4 driving ahead of his vehicle. He could not see the number of occupants. He called Constables Gordon and North to alert them. He maintained cellphone contact with them ultimately reporting that the RAV4 pulled into a rear parking lot of an apartment building at 2292 Weston Rd. at about 1:15 a.m.
[10] As the constable pulled into the mouth of the north drive of the apartment complex, he observed the stolen vehicle pull into a parking space. The front of the officer’s vehicle faced the passenger side of the RAV4. Constable Gordon caught up at high speed and parked his car parallel to Constable Callan’s vehicle entirely blocking the exit from the lot. Constable Gordon described the night as dark with artificial lighting from the apartment building. Constable Callan recalled artificial lighting and light from the road area.
The Arrests
[11] Constable Gordon informed the court that he clearly observed the accused exit the passenger side of the RAV4. Constable Callan saw the accused walking from the passenger side of the stolen vehicle. The two officers simultaneously exited their vehicles and drew their weapons. In Constable Callan’s mind, it was only minutes after the robbery, there was a report of suspects armed with handguns, and a male party about 30 to 40 feet away was moving in their direction from the stolen vehicle. The officer saw a firearm tucked in the waistband at the front of the accused’s pants. It appeared real. The gun’s grip was in plain view. Constable Gordon had no trouble seeing the accused at a distance he estimated to be 20 to 30 feet away. The officer saw a black-coloured handgun tucked into the waistband at the front of the suspect’s pants. The grip to the trigger guard area was visible. It appeared to be a real firearm. He was concerned about officer safety. In his view, this was a high risk situation.
[12] Constable Gordon further testified that there was only him and his partner in an unfamiliar location searching for armed suspects. An armed suspect was only feet away. He had a concern, if the lot was involved in the stolen vehicle drop-off, that a third person or others could be about to show up at their location.
[13] Both constables had received annual ‘use of force’ training relating to the apprehension of annual suspects. The drawing of their service weapons was considered proportionate to the threat of death or serious bodily harm. The two officers yelled out a police command or challenge, “Police. Don’t move”. Constable Callan testified that the suspect looked left and right. The officer thought he might run but he froze. The witness estimated that only about 15 feet separated the suspect and his partner. Constable Gordon testified that he had his firearm pointed at the accused. On both officers’ evidence, if the suspect had moved for the gun in his pants he would have been shot.
[14] Constable Gordon testified that when he ordered the suspect to turn and get to the ground, the accused complied – he turned and went to his knees. Taking quick control was essential – custody of the suspect and seizure of the firearm as quickly as possible. As the officer rushed up and pushed him from behind face first into the ground, applying his body weight to the back of the accused’s torso, he simultaneously pulled the suspect’s arms to the rear to keep his arms from getting to the front of his pants. It was important that the accused have no opportunity to reach and draw the readily accessible gun in his waistband. He handcuffed the suspect to the rear. The accused did not resist. The whole thing was over in about five seconds according to Constables Gordon and Callan. The firearm was secured. Constable Gordon testified that his approach used appropriate force for quick control and that his actions were consistent with his training.
[15] Constable Callan was slightly behind Constable Gordon making an effort to watch the accused and the vehicle as well because it had yet to be cleared or rendered safe. His recall was that when the accused did not comply with the police direction to get on the ground, Constable Gordon took the suspect down by cutting toward the suspect’s left shoulder, grabbing his shoulders from the back and very quickly tackling him to the pavement. In Constable Callan’s view, the approach of his partner was consistent with their training of grounding an armed suspect as soon as possible to limit his tactical options.
[16] Constable Gordon testified that the grounding manoeuvre he executed to secure control of the accused and the firearm prevented the accused from cushioning or blocking his fall. The accused’s chin hit the pavement. The officer observed about a one-inch cut on the accused’s chin. It was more than a scratch or abrasion. The cut bled. Constable Callan recalled that the accused had a chin injury. Within a few minutes, in response to a call from the police, a Toronto EMS ambulance attended and band-aid treatment was administered to the arrestee.
[17] As soon as Constable Gordon grounded the accused, cuffed him and retrieved the firearm which turned out to be a replica of a semi-automatic Glock weapon, he asked, “Where are the firearms?” as he only had one seized firearm. The constable also asked, “Who else was with you?” receiving the response, “Kenny”. The officer believed three persons may have been involved in the robbery, two driving off in the victim’s vehicle and a third in the robbers’ own vehicle. A black bandana was seized from one of the arrestee’s pockets. The constable arrested the accused for robbery and possession of an imitation firearm.
[18] Constable Callan informed the court that as his partner subdued the accused, a second male, subsequently identified as Chris Tran, came around the back of the RAV4 from the driver’s side. He had his hands raised and went prone on the ground without the officer having said a word. Constable Callan handcuffed Tran. The arrestee said words to the effect of, “Not to worry. The guns aren’t real” and stated that his gun was in the vehicle under the driver’s seat. At this point, Constable Callan left Tran on the ground and cleared the stolen vehicle by ensuring that there were no other occupants. He located the victim’s purse on the rear seat of the vehicle with its contents scattered on the seat. He retrieved a handgun, an imitation Beretta, from beneath the driver’s seat. Constable Callan testified that the weight and appearance of the item would “absolutely” lead one to believe it was real.
[19] Chris Tran was described by Constable Callan as a South Asian male about 5’6” in height, 130 pounds with a slim build, and with black hair with a blonde streak at the front. The officer seized a flip cellphone and a bandana from Tran’s person.
[20] Constable Gordon described the accused as about 5’11” in height or taller and as of medium build with a South Asian or Guyanese appearance.
[21] When Constable North arrived on scene, he observed that the accused and Tran were in custody. He saw a small cut on the bottom of the accused’s chin for which treatment was being administered by ambulance personnel. On speaking to the EMS staff he was informed that the accused was fine but that he should attend a doctor’s office at his earliest convenience for a stitch.
[22] According to Constable Gordon, some uniformed Metropolitan Toronto Police Service (M.T.P.S.) cars also responded to the scene. M.T.P.S. officers were in the area of the accused as he received treatment from the paramedics. When he again took control of the prisoner, Constable Gordon placed him in the rear of his cruiser and, leaving the door open leaned in and read from the front of his notebook the s. 10(b) Charter rights to counsel, the caution regarding the right to silence, and the conventional secondary caution. This was at about 1:30 to 1:45 a.m. On the officer’s evidence, the accused indicated that he understood what he was told. He indicated that he did wish to consult counsel. In Constable Gordon’s view, it was not possible to provide that opportunity at the scene. The accused was turned over to Constable Savage for transport to P.R.P.S. 11 Division. To Constable Gordon’s recall, by the time he departed the scene at 2:15 a.m. the accused had already been taken away.
[23] P.R.P.S. Constable J. Savage responded to a radio call to attend 2292 Weston Rd.. She arrived at 2:01 a.m. She was to transport an arrested party to 11 Division. She met Constable Gordon who informed her of the name of the party he had in custody, the accused, and that he was under arrest for robbery.
[24] Constable Savage placed the accused in the rear of her cruiser and, at 2:04 a.m., read him his rights to counsel, the caution and secondary caution. When asked if he wished to speak to a lawyer, the accused replied “no”. In the officer’s view, although he seemed pretty scared, the accused understood her and was aware of his surroundings.
[25] Constable Savage noticed a cut under the accused’s chin and a swollen upper lip. She was unable to recall whether he was wearing a bandage when she placed him in her cruiser. The constable left the Weston Rd. scene at 2:06 a.m. and arrived at P.R.P.S. 11 Division at 2:26 a.m. To her recall, there was no conversation with her prisoner on route to the station.
[26] Constable Savage informed the court that shortly after 2:26 a.m. she walked the accused from the sallyport where her cruiser was positioned into the booking cells area to transfer custody to the booking officer, Constable Young. The officer remained with Constable Young for a few minutes, probably to about 2:31 a.m., for officer safety. Although she observed the accused’s chin cut was not bleeding too much, she wrapped a bandage strap around his head to hold his bandage in place.
[27] Constable Michael Young was the P.R.P.S. booking officer on August 5, 2007. His notes indicated that he first became involved with the accused at 2:46 a.m. After dealing with a drinking/driving arrestee Constable Savage produced the accused to him. He completed a Prisoner’s Log including biographical information obtained from the accused who was cooperative. Constable Young testified that the officer in charge of the station Acting Staff Sgt. McGibbon, was present, as is the practice when a new prisoner arrives, for some of the processing.
[28] In the Prisoner Log, based on information from Constable Savage and on his own observations, Constable Young wrote:
Cut under chin, fat lip cleared medically by Toronto EMS. Injury caused when prisoner grounded during arrest.
The accused made no complaints to Constable Young and the officer noted, “no issues”.
[29] At about 2:53 a.m., the accused was placed in the bullpen cell in the basement near the booking office. Subsequently, after Tran arrived and went through the booking process with Constable Young, he was taken directly to Interview Room #2 of the C.I.B. office on the second floor of 11 Division at about 3:00 to 3:05 a.m. by Constable Faulkner. According to Constable Young, no one had access to the accused in the basement cell.
[30] Constable Young testified that at about 3:15 a.m. he was notified that the Central Robbery Unit required the accused in the C.I.B. office on the second floor. He turned the accused over to Constable Faulkner to escort the prisoner up two flights of stairs to Interview Room #4. Constable Faulkner has no recall of escorting the accused. He accepts the accuracy of Constable Young’s notes. Constable Young then went to the C.I.B. offices at perhaps 3:20 to 3:30 a.m. to check that the accused was there. By looking at the monitor outside Interview Room #4, he could see the accused inside the room.
The Videotaped Statement
[31] Constable Gordon arrived at 11 Division at 2:35 a.m. He worked on his notes, began a synopsis, reviewed the victim’s statement, spoke to other investigators, and prepared to interview the accused. On his evidence, as he worked he could see, on the monitor, the accused in C.I.B. Interview Room #4 waiting to be interviewed.
[32] The police officers who testified on the voir dire denied making any threats, promises or inducements to the accused or suggesting to him that it would be better if he talked to the police. No officer considered the accused to be under the influence of drugs or alcohol or unaware of his surroundings.
[33] Constable Gordon testified that after handing the accused over to Constable Savage at the Weston Rd. scene he had no contact with him until he entered Interview Room #4 at 3:49 a.m. The officer denied the suggestions in cross-examination that he entered the interview room before the tape was turned on, told the accused he would go to jail for 10 years if he didn’t cooperate, and gave his theory of the case making it clear that he expected cooperation.
[34] The videotape of the interview of the accused commenced at 3:46 a.m. The accused was seated alone in the room. At 3:49 a.m., Constable Gordon entered. The officer stated:
You’re under arrest right now for robbery, use of imitation firearm, and wearing a disguise with the intent to commit indictable offence. Do you understand those charges?
The accused acknowledged that he did. After obtaining biographical information from the arrestee, this conversation transpired:
Q. Okay. So you understand your rights that the officers have read to you, correct?
A. Mm-hmm.
[35] In the video, the bandage on the accused’s chin is visible. Constable Gordon next addressed the injury sustained in the arrest:
Q. How did you uh, sustain your injuries today?
A. Well uh, when you put me on the floor.
Q. Mm-hmm.
A. That’s how.
Q. When did I put you on the floor?
A. Well you told me to get on the floor and then uh, I guess you put some pressure on me.
Q. Okay. It’s okay to t-, I’m, I’m fine with that and I just want to make it clear that by the time that happened during the arrest. Is that right?
A. Yeah.
Q. Okay. And that no time since you been here is anybody laid any hands on you or abused you in any way?
A. No.
Q. Okay. I just want to make that clear because obvious you got some injuries.
A. Mm-hmm.
Q. We want to be able to account for those injuries and why they happened.
A. Yeah.
Q. Is that accurate?
A. Yeah.
[36] Shortly after 3:54 a.m., this exchange occurred:
Q. And, and yeah, I did inflict some injuries on you when I took you down.
A. Mm-hmm.
Q. But soon as I have you in custody I’ve been pretty straightforward and decent with you. Would you agree with that?
A. Yeah.
Q. And since the time you’ve been in custody you’ve been fairly decent and straightforward with me. I want to try and maintain that relationship here, alright? Um, if, if you’re in a situation here because of some-, something-, somebody else put you in the motion here like Chris here. Is this somebody that we need to be uh, keeping on a radar here?
A. No, Chris is just a friend of mine.
[37] The accused provided the following information in the interview statement:
(1) he met Chris, who was 17 years of age, the prior summer
(2) two or three days prior to August 5, through Chris, he met “Frank” in the Jane and Finch area of Toronto – Chris said Frank was a good friend of his
(3) Frank’s physical appearance was described
(4) at the meeting, Frank told Chris that he wanted Chris and him to bring a Toyota RAV4 or a 2007 Toyota Camry – Frank would pay $4,000 cash for the vehicle – a RAV4 was a cheaper vehicle and easy to take as it had no GPS
(5) the accused did not know the precise location where the stolen vehicle was to be dropped off but it was in the area of 2292 Weston Rd. – Chris knew where the drop-off was to be – Chris had stolen cars before for Frank
(6) the accused was uncertain whether Frank chopped up stolen vehicles or resold them for profit
(7) on August 5, he met Chris at about 2:00 p.m. in the Jane and Finch area – they intended to do a mission – they began driving in the accused’s mother’s car looking for a RAV4 or a Camry – a friend, Kenny was with them
(8) Kenny had a moustache with dark skin, age 21, “kinda big” and Guyanese
(9) they staked out a RAV4 at a movie theatre parking lot – 2 persons left the theatre and entered the vehicle – they followed it and observed the female driver drop off her boyfriend and drive to her home in Mississauga
(10) the accused decided to participate in the “mission” with Chris:
I just had no money at the time and I needed some.
And I had a job a couple of days before and I just got like tired of working.
(11) the RAV4 driver drove into a residential driveway:
… that’s when we ran up and got it.
… me and Chris ran out … me and Chris took the keys from her … then we got in the car … [a]nd then we drove off.
(12) Kenny drove his mother’s car and they followed him to Weston Rd. as that friend knew where the stolen vehicle was to be dropped – Kenny was not going to get the same amount of money for the mission as Chris and him
(13) at a point, Chris said that he thought they were being followed – they had cellphone contact with Kenny
(14) Chris drove into the parking lot at 2292 Weston Rd. and Kenny drove away
(15) the accused was arrested with a replica handgun
Q. Alright. Um, alright. And you-, when I arrested you, you had something tucked into your waistband.
A. Yeah.
Q. What was that?
A. Air gun.
Q. And there was a air gun?
A. Yeah.
Q. Fairly uh, real looking air gun.
A. Yeah. Q.
Q. You know you nearly got yourself shot.
A. Yeah.
Q. You understand that?
A. Yeah.
Q. Scared the hell out of me.
A. I wasn’t gonna pull it out.
Q. I hope to God you didn’t pull it out ‘cause it would have just-, I don’t know what I would have done. I probably shot ya.
A. Yeah.
(16) referring to the seized imitation Glock handgun:
Q. … is that what you used to steal the car?
A. Yeah, I used that.
(17) the second gun, the one found in the RAV 4, belonged to Chris
(18) the accused had never before been involved in such a crime.
[38] At one point during the interview, the accused stated, “I just don’t want to be a snitch” and in continuing to speak to Constable Gordon, stated, “I just don’t want Chris to find out about it … like when I’m going to jail, I don’t want to get beat up and stuff”. Asked if he was sorry he had done the robbery, the accused responded, “I don’t know. I just wish I got away with it”.
[39] The initial interview session lasted from 3:49 a.m. to 4:14 a.m. with only the accused and Constable Gordon in the interview room. Within a minute, Constable Gordon returned with a glass of water for the accused and the interview continued until 4:16 a.m. when the officer left the room. At 4:28 a.m., Constable Gordon re-entered the interview room. The interview continued until 4:34 a.m. when he again left. The final part of the interview was from 4:38 a.m. to 4:41 a.m.
[40] In the videotape, the accused can be seen wearing his own clothes – blue jeans and a black shirt. There is a bandage on his chin tied in place as described by Constable Savage.
[41] Both when Constable Gordon is in the room and when he was absent, the accused can be seen, in the picture-in-picture part of the screen, stretching his legs out. At times, the accused had his hands folded in front. He was not handcuffed.
[42] The accused spoke distinctly and responsively to questions asked. There was no indication of fear. Constable Gordon at no time raised his voice or crowded into the accused’s space. The questioning was not aggressive. When challenged by the interviewer that he was withholding information, the accused confidently and steadfastly denied that that was the case. The accused’s responses were not limited to one-word answers.
[43] In the 4:16 a.m. to 4:28 a.m. gap, when Constable Gordon was out of the room, the accused rested his head for a time on his arms on the table in front of him. He drank twice from the water cup.
[44] There was no indication in the video that the cut to the accused’s chin impeded his ability to speak in any way. During the videotaped interview which lasted just under an hour (3:49 a.m. to 4:41 a.m.), the accused touched his chin with a hand only once for about two seconds. There was no sign of pain on his face. At another point, he briefly rested his chin on his folded arms on the table, again without a wince or other sign of pain.
[45] The Prisoner Log-Observation Sheet relating to the accused recorded that at 7:00 a.m. he was returned to the cell area for transport to the Credit Valley Hospital by Constable Ball.
Police Use of Force
[46] Constable Kelly Jackson, a university graduate and a P.R.P.S. officer since December 1991, has spent about 8 ½ years of her policing career in the Service’s Use of Force Training Bureau. She has extensive experience in the subject of the training and study of police use of force options in conflict and arrest situations including those where a suspect is armed with a weapon. The officer has instructed over 12,000 police officers on the reasonable and justifiable use of force proportionate and responsive to the perceived circumstances of a particular situation as assessed through the Ontario Use of Force Model and relevant legislative limitations.
[47] On consent, the officer was qualified by the court to provide opinion evidence respecting the police use of force in circumstances of a suspect believed to be armed.
[48] Constable Jackson testified that situations involving encounters between the police and a suspect are dynamic not static. An incident must be continuously assessed by an officer as circumstances develop. Various impact factors will be relevant including the environment itself (lighting, weather, physical location, distance between the parties, timing (affects time to plan), the number of subjects, pre-knowledge about a suspect, perception of the subject’s capabilities (size, strength, weapon potential, weapon accessibility, signs or demeanour cues relating to potential for attack, etc.)). Issues of officer perception are important including what he or she brings to the situation such as physical size, experience, skill level, fears, etc. Tactical considerations must be assessed including particulars of the geographic location, access to back-up, disengagement possibilities, access to special units such as canine, etc.
[49] Communication with a suspect throughout an incident is also essential in Constable Jackson’s view. Physical control by an officer is often necessary to terminate an event or to arrest a subject. Soft control techniques such as pressure point control or joint lock techniques may effect control. These actions carry a lower probability of injury. Hard control strategy, such as punching, kicking or grounding, carry a higher probability of injury.
[50] According to the officer, where there exists a threat of death or serious bodily harm to an officer, he or she is justified in drawing a firearm and, if the threat persists and threatens to escalate or does escalate, using lethal force by firing the weapon at the subject.
[51] In the constable’s view, the circumstances faced by Constables Gordon and Callan amounted to a “deadly force encounter”. The accused closed the gap between his position and the officers. He had what appeared to be a real firearm tucked in his pants and readily accessible. There was no cover between the parties. The officers believed the subject to have been involved in an armed robbery earlier in the evening. In these circumstances, the propensity for deadily force was very high. A reasonable response to the perceived threat would, in the officer’s opinion, involve the on-scene constables utilizing their firearms. This could involve discharge of their weapons if they reasonably believed the subject could cause death or bodily harm by accessing his weapon.
[52] Constable Jackson testified that the response of the on-scene officers was consistent with their training. There existed critical safety concerns. It was necessary to get the suspect under control quickly and to prevent his access to his firearm. While officer safety is paramount, concerns exist as well for the safety of the suspect and the public. Efforts to use the least amount of force necessary to achieve the control objective must be considered. Any movement of the subject in the direction of his weapon would justify the officers shooting the suspect. Ordering the subject to turn and go to ground was reasonable as was “grounding”, a common technique for which officers are trained – putting a subject forcefully to ground to control both him and his weapon. In grounding events, injuries occur but are not common. The potential is there. Grounding training for officers is done on a padded floor not on pavement.
[53] In Constable Jackson’s view, whether the accused in this case was perceived to be complying with police commands or not, the urgency of the situation justified grounding as the quickest way to get the subject prone on the ground and to secure his weapon. Initial compliance can quickly become violent. A suspect is able to draw a handgun from his waist and fire in as short a time as .25 seconds.
POSITIONS OF THE PARTIES
The Defence
[54] Mr. Pearson submitted that the voluntariness of the accused’s statement has not been established beyond a reasonable doubt. The totality of the circumstances are said to raise a doubt that the accused only participated in the interview on account of an atmosphere of oppression.
[55] The moment of the accused’s arrest is significant. Force was used against him although he had not attempted to harm the officers. He was injured in the arrest. One of Constable Gordon or Constable Callan must be wrong as to how events unfolded – either the accused was complying with police commands or he was not. It was submitted that Constable Callan’s evidence as to the accused complying makes more sense as Constable Gordon would only have used the force he did in circumstances of non-compliance.
[56] The injury to the accused was not insignificant. It required the attendance of EMS personnel and a subsequent hospital attendance.
[57] The unreasonable use of force in grounding was intended to send a message to the accused – cooperate or else – do as we say or you will be injured. Constable Savage described the accused as scared following his arrest. The accused could not reasonably be expected to voice complaints about police misconduct to other police officers. Why would the accused change his position about wanting to speak to counsel?
[58] Mr. Pearson noted what were described as significant time discrepancies between various officers relating to events at P.R.P.S. 11 Division. It was submitted in particular that from about 3:15 a.m. to 3:46 a.m., a period of about half an hour, the accused was in Interview Room #4 without the videotape running. The opportunity for preliminary off-video communication by Constable Gordon existed. It is said that the officer’s reference soon into the video interview about the accused being decent and straightforward “since the time” he had “been in custody” is suggestive of more, unaccounted-for time the two were together.
[59] Mr. Pearson canvassed as well the lack of detail in Constable Gordon’s notes relating to his activities before and after the videotaped interview as supportive of opportunity for off-video communications with the arrestee.
[60] It was further submitted that in the videotape the accused, who was only 18 years of age, and wearing a bandage, appeared subdued and tired.
[61] It was submitted that the whole of the circumstances “raise a spectre of oppression” such that it cannot confidently be said that the accused gave a statement of his own free will.
Ms. Di Giulio submitted that in the absence of any evidence of unreasonable use of force, threats, promises, inducements or other inappropriate measures by persons in authority, the prosecution proved the accused’s statement to be voluntary beyond a reasonable doubt.
[62] It was submitted that there is not necessarily an inexplicable discrepancy between the evidence of Constables Gordon and Callan as to whether the accused was complying with commands in the Weston Rd. parking lot. Constable Gordon was closer to the suspect, the officers had different angles of observation, and persons can perceive and recall events differently in stressful situations.
[63] In any event, given the circumstances as described by the on-scene officers, including their knowledge of the earlier armed robbery and the serious threat of an armed suspect in close proximity, the action of grounding the suspect was not only reasonable and consistent with officer training, but also quickly controlled the suspect and eliminated the ongoing risk of his access to his firearm. The injury sustained by the accused was not serious. It was attended to. He made no further complaint about his cut chin. A change of mind about consulting counsel is hardly unheard of – the accused realized the jig was up.
[64] As to the unfolding of events at 11 Division, while the officers’ times may not all be synchronized, it was submitted that there existed no evidence of improper coaching, coercion or influence of the accused. Constable Gordon denied the suggestions put in cross-examination that he sought to intimidate or influence the accused before the taped interview. Other officers too informed the court that the accused was treated properly. Mr. Gobin told the court nothing to give substance to mistreatment or improper influence or oppression.
[65] Ms. Di Giulio emphasized the cooperative demeanour of the accused on the videotape. He was alert and responsive to questions. In some instances, he provided details. Where challenged by Constable Gordon that he was not being fully forthcoming, he easily held his own in articulating his denials. Constable Gordon’s comment about the accused being decent and straightforward with him since being in custody, apart from being an interview technique to encourage conversation, must be seen in the context of not only the time together at the scene of the arrest but as well during the opening minutes of the interview.
[66] It was submitted that on the whole of the evidence, it could not be said that the will of the accused not to speak was sapped or unfairly overcome. There was no oppression.
ANALYSIS
Overarching Principles
[67] 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), 2000 SCC 38, 147 C.C.C. (3d) 321 (S.C.C.), at para. 69. The prosecution must establish beyond a reasonable doubt that the statement was made voluntarily: R. v. Spencer (2007), 2007 SCC 11, 217 C.C.C. (3d) 353 (S.C.C.), at para. 11. “The onus on the Crown is a heavy one”. R. v. Sabri (2000), 2002 CanLII 44974 (ON CA), 166 C.C.C. (3d) 179 (Ont. C.A.), at para. 14.
[68] Over time, the confession rule has developed, as its underlying rationale, concerns as to the reliability of the accused’s statement in terms of its truthfulness, fairness to the accused including the right to freely choose whether to speak to the authorities or not, and the repute or integrity of the criminal justice system itself. While all these aspects of the voluntariness rule often overlap and fall to be assessed on the facts in any particular case, the concern for reliability remains the “primary reason” for the confessions rule: R. v. Singh (2007), 2007 SCC 48, 225 C.C.C. (3d) 103 (S.C.C.), at paras. 29-30; R. v. Colson (2008), 2008 ONCA 21, 230 C.C.C. (3d) 250 (Ont. C.A.), at para. 34, R. v. Deane, (2000), 2000 CanLII 17047 (ON CA), 143 C.C.C. (3d) 84 (Ont. C.A.), at para. 40; R. v. McIntosh (1999), 1999 CanLII 1403 (ON CA), 141 C.C.C. (3d) 97 (Ont. C.A.), at para. 20. The admissibility rule effectively maintains a balance between individual and societal interests.
[69] Applying the voluntariness test of admissibility is essentially a question of fact: Oickle, at paras. 23, 71; McIntosh, at para. 21. In assessing voluntariness, the court must be sensitive to the particularities of the individual suspect including his or her state of mind during police questioning: Oickle, at para. 42. In effect, the application of the confession rule “will by necessity be contextual”: Oickle, at paras. 47, 71. All relevant circumstances, the “entire context”, must be examined: Spencer, at para. 17; Oickle, at paras. 54, 71, 88.
[70] An arrestee who is in custody cannot simply walk away from police questioning. There is undoubtedly a vulnerability for the accused who undergoes custodial interrogation and a greater risk of abuse of power by the police: Singh, at paras. 32, 45; R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.), at para. 52. Accordingly, close scrutiny of the police interviewer’s actions is necessary in the context of the specific detainee and his or her personal circumstances.
[71] That said, there exists no right for an arrestee not to be spoken to by the authorities and “[t]he importance of police questioning in the fulfilment of their investigative role cannot be doubted”: Singh, at para. 28; R. v. Fitton, 1956 CanLII 28 (SCC), [1956] S.C.R. 958, at p. 972 per Nolan J. The authorities are entitled to use legitimate means of persuasion to have a suspect provide a statement: Hebert, at paras. 53, 73; Oickle, at para. 33; Singh, at para. 47; R. v. Smith (1989), 1989 CanLII 27 (SCC), 50 C.C.C. (3d) 308 (S.C.C.), at pp. 315-6.
[72] The concept of oppression focuses on conduct of the police improperly overbearing or undermining the free will of an arrestee to choose whether or not to speak to the police: R. v. Horvath (1979), 1979 CanLII 16 (SCC), 44 C.C.C. (2d) 385 (S.C.C.), at pp. 394-7; McIntosh, at para. 20; R. v. Hoilet (1999), 1999 CanLII 3740 (ON CA), 136 C.C.C. (3d) 449 (Ont. C.A.), at paras. 16-28. Although by no means the exclusive circumstances of oppressive actions, the courts often look to the presence of distasteful custodial conditions, inhumane conditions, confrontation with fabricated or non-existent evidence, unfair trickery, or “excessively aggressive, intimidating questions”: Oickle, at paras. 58-60. That is not to say that questioning cannot be “persistent and accusatorial” and “firmly” administered: Oickle, at paras. 2, 57. Assessment is made, however, as to whether responses to police questioning were the result of improperly unfair pressures or conduct of the authorities effectively overcoming the exercise of the choice to speak. The police cannot simply ignore an accused’s right to silence by resort to any means to elicit confessional statements. The “absence of oppression is important not only in its own right, but also because it affects the overall voluntariness analysis”: Oickle, at para. 87.
[73] The video recording of statements to persons in authority enhances the court’s ability to determine that an arrestee has not been subjected to any improper treatment or influences. The contemporary expectation is that the custodial interview will be electronically recorded. This does not equate to the authorities having to keep an arrestee on camera every minute he is in police custody. As observed in R. v. Marshall, 2005 CanLII 30051 (ON CA), [2005] O.J. No. 3549 (C.A.) (QL), at para. 98 (leave to appeal refused, [2006] S.C.C. No. 105):
As noted in Oickle and Moore-McFarlane, the failure to record interrogations does not render them inherently suspect. Rather, a non-recorded interrogation becomes suspect when the following circumstances, which do not exist in this case, are all present: (1) the suspect is in custody; (2) recording facilities are readily available; and (3) the police deliberately interrogate the suspect without giving any thought to making a reliable record. The only custodial interrogation of the appellant took place after his arrest on September 29, 1997. It was completely recorded on videotape. (emphasis added)
[74] Of course, in order to properly determine voluntariness, a trial judge is “obliged to consider what preceded the taped statements”: R. v. Philogene, [2006] O.J. No. 4001 (C.A.) (QL), at para. 13. This includes the circumstances of the accused’s custody, who had more than incidental contact with him, and the circumstances of any such contact.
[75] A forceful arrest does not automatically vitiate the elicitation of a voluntary confession: R. v. Hatton (1978), 1978 CanLII 2398 (ON CA), 39 C.C.C. (2d) 281 (Ont. C.A.), at pp. 287, 294-8.
[76] While there is no onus at all on an accused to adduce evidence in a confession voir dire, it is not unfair to note that he or she “neither testified nor called any evidence on the voir dire”: Marshall at para. 93; McIntosh, at paras. 29-41. Suggestions in cross-examination, apparently emanating from the accused denied by police witnesses, and unsupported by other evidence, do not amount to substantive evidence. Put differently, in the absence of testimony from the accused, “any suggestion of police oppression “off camera”” could be described as “speculative and without an evidentiary foundation”: R. v. L.K.H. (2006), 2006 NSCA 104, 213 C.C.C. (3d) 96 (N.S.C.A.), at para. 21.
The Voluntariness Determination in the Present Case
[77] To properly set the framework for the voluntariness inquiry in this case two matters should be noted. The defence took no issue with the prosecution not calling the M.T.P.S. officers on the statement voir dire. Their contact with the accused, if any, was entirely incidental. Further, no issue was taken as to police compliance with the accused’s s. 7 and s. 10 Charter rights considering the circumstances of the present case and the law on these issues as of 2007.
[78] There is no dispute but that Constable Gordon employed physical force in executing the arrest of the accused. The force resulted in injury to the arrestee’s chin.
[79] Firearms in the possession of individuals who commit criminal offences raise the inherent threat that such persons are prepared to undertake gun violence when they deem it to be in their selfish best interests to do so, including at times when police officers pose a risk of capture. In R. v. Wilkinson, [2009] EWCA Crim 1925, at para. 2, the court observed in language apposite to our community:
The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorize and intimidate. That is why criminals want them; that is why they use them … too many lethal weapons are too readily available; too many are carried; too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community.
[80] On a considered view of all the circumstances, it cannot be said that the officer’s use of force was unreasonable or excessive. There was a credible report of a car-jacking robbery by armed persons less than an hour before the Weston Rd. encounter. The officer observed the accused exit the stolen vehicle. The accused stepped in the direction of Constable Gordon and his partner. The accused had a firearm in his waistband. It was night time. There was no cover between the officers and the armed suspect. The prospect of ambush from a shooter in or behind the RAV4 existed. If the parking lot was the drop point for the stolen vehicle, another party or parties connected to its pick-up could be in the vicinity or en route.
[81] Constables Gordon and Callan were duty-bound to attempt to apprehend the armed suspect. They reasonably considered themselves to be in imminent danger. This is among the all too common risks of policing. Consistent with their experience and training, supported here by the opinion of Constable Jackson, rapid action was required to subdue the suspect and neutralize the threat posed by his handgun. The situation was urgent. The prospect of someone being shot was very real.
[82] In less than five seconds in a dynamic situation, Constable Gordon was required to take in information, assess it, consider risks and options, and execute a take-down plan. His split-second decision to ground the suspect and to prevent him from accessing his waistband was a reasonable option available to him in the circumstances. Retrospective dissection of the constable’s conduct, with time for reflection and contemplation of other options, is unrealistic.
[83] In my view, there is no necessary discrepancy in the evidence of the officers. They were differently positioned. Constable Gordon was closest to the suspect. As well, Constable Callan was dividing his attention between the suspect and the uncleared vehicle. While Constable Callan may have perceived non-compliance, I am satisfied, having seen and heard Constable Gordon’s evidence, that the accused was compliant. That said, the officer’s decision to then ground or tackle the accused to the pavement, with a risk of injury to the suspect, was not unreasonable. Compliance may be short-lived. The degree of risk from the suspect drawing his weapon remained a threat. The officer was not prepared to assume that ongoing threat and acted to terminate it. He cannot be criticized for having done so by the option he selected.
[84] The injury to the accused was not intended. It was a consequence of the grounding on a hard surface. The accused was not otherwise physically mistreated in any way. The accused received medical attention. The injury, such as it was, was minor. There was bleeding. The cut may have required a stitch. Scrutiny of the accused in the videotaped interview does not reveal any pain, discomfort or indeed concern with the state of his chin.
[85] In all of the circumstances, no inference adverse to the police conduct can properly be drawn on the facts of this case from the accused’s change of mind about contacting counsel. That was his decision to make. While he may have appeared scared, that is hardly surprising given that he was under arrest within an hour of the car-jacking robbery.
[86] On the totality of the evidence, there is no substance to the suggestion that Constable Gordon conducted an off-video warm-up conversation with the accused in order to influence the arrestee’s videotaped statement. The credible evidence accepted by the court is all to the contrary. Constable Gordon’s comment during the videotaped interview about the accused being decent and straightforward with him since being in custody cannot fairly and reasonably lead to the inference that an extra off-video session occurred. The comment was over five minutes into the interview and transparently an observation intended to elicit further information.
[87] The accused was in Interview Room #4 by about 3:15 a.m. Constable Gordon denied, and persuasively so, that he entered the room until 3:49 a.m. He was preparing for the interview and able to see the arrestee on the out-of-room monitor. There is no evidence of any other officer having inappropriate contact with the accused.
[88] The accused was aged 18. He had been arrested at gunpoint and injured during the arrest. These are, of course, important contextual factors. That said, the accused did not present as immature. He was properly cautioned. The accused’s demeanour in the interview demonstrated that he was cooperative, alert, responsive, not in distress, forthcoming with details, understandably concerned about implicating Chris, regretful about being caught, and more than able to verbally resist Constable Gordon’s suggestions of not telling the entire truth. The interview was short. The questioner was not loud or threatening or physically intimidating toward the accused. The accused was provided water. While he rested on the interview table, he was not falling asleep.
[89] The only conclusion which can be drawn from the totality of the evidence is that the accused’s will and ability to choose to speak or not were not overborn or otherwise unfairly compromised by the conduct of any of the police officers. The accused participated in the interview entirely of his own volition without improper influence. The statement is, in fact and law, voluntary.
CONCLUSION
[90] The accused’s statement is admissible.
___________________________
Hill J.
Released: April 19, 2012
COURT FILE NO.: CRIMJP3515/09
DATE: 20120419
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
KENNETH GOBIN
Defendant
JUDGMENT
Hill J.
Released: April 19, 2012