ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant (Respondent)
– and –
KRISTOPHER LAVALLEE
Respondent (Applicant)
Counsel:
Len Walker and Kevin Ludgate, for the Crown.
Susan Adams and W. Adam Schultz, for the Applicant.
HEARD: April 2, 3, 4, 23, 24, 25, 26, 27, 30 and May 1, 2012.
RULING ON VOLUNTARINESS ISSUE AND SS. 7 AND 24 (2) OF THE CHARTER OF RIGHTS
GAUTHIER, J.
1The majority of the facts in this case are not in dispute. I have taken the liberty, in preparing this Ruling, of borrowing to a large extent from the facts as set out in the Crown’s factum on the issue of voluntariness.
2The matter of the voluntariness of the statements of Kristopher Lavallee (“Lavallee”) to Detective Ramsay (“Ramsay”), the issue of the alleged breach of s. 7 of the Canadian Charter of Rights and Freedoms, and the issue of the admissibility of the utterances made by Lavallee to the undercover officers during his transport from Québec to Ontario, were dealt with together in this application. The arguments of counsel on those issues were separate and I will therefore address each issue separately.
3With regard to the voluntariness issue, it is not suggested by Lavallee that he was threatened in any way, at any time from June 4, 2009, to June 9, 2009. Nor were any promises made to him.
4Facts:
Whitney Van Der Wouden (“Whitney”) was last seen in the company of Lavallee and G.H. on April 27, 2009, in Sudbury, Ontario.
On June 2, 2009, remains of a human being were located on a property in Sudbury and later identified as being those of Whitney.
After further investigation, on June 2, 2009, a Canada-Wide Warrant was issued for the arrest of G.H. and Lavallee, for first degree murder in the death of Whitney.
Both accused turned themselves in to police on June 4, 2009, at Lebel-sur-Quévillon.
Lavallee was given his right to counsel and a caution. Lavallee declined the invitation to contact a lawyer at that time, and indicated that he would call one in Sudbury.
Late on June 4, 2009, Lavallee was transported to the Sûreté du Québec station in Val d’Or and lodged there. During the time that Lavallee was at Lebel-sur-Quévillon, he exhibited no behaviour indicative of any major mental illness, or suicidal ideation. In fact, there was nothing remarkable about Lavallee’s conduct or actions at all.
At 02:25 hours on June 5, 2009, Lavallee was removed from his cell by Detective Sergeant R. Ayotte (“Ayotte”) who provided Lavallee with his right to counsel. Again, Lavallee declined the offer of contacting counsel. Lavallee acknowledged by way of signature that he understood the police warning and right to counsel. He was returned to his cell, where he was provided with a white jumpsuit and slippers to replace his clothing which was taken by police as evidence.
At 14:30 hours on June 5, 2009, Lavallee was taken before a Justice of the Peace in Val d’Or, where he was assisted by duty counsel. An Order was made pursuant to s. 503 of the Criminal Code detaining Lavallee under the supervision of the Sûreté du Québec at Val d’Or; Lavallee was to be returned to Sudbury as soon as possible.
At 17:00 hours, Lavallee asked to go out for a cigarette and that request was granted. Ayotte took Lavallee outside and noticed that he was shaking “a little bit”. Ayotte advised security officer Nicole Gagnon (“Gagnon”) who had charge of Lavallee that he believed Lavallee to be in withdrawal and if necessary should be taken to hospital.
On June 6, 2009, Lavallee asked, again, to go out for a cigarette.
At approximately 14:30 on June 6, 2009, Lavallee asked to see a doctor and was taken to the Centre Hospitalier de Val d’Or where the triage nurse noted that Lavallee had no significant medical history and that his complaint was anxiety.
Dr. Romana Skuherska saw and spoke with Lavallee. She noted that (a) “does not take his medications since 5 months”, (b) “speed in his brain”, and (c) Plus/Minus hallucinations.
Lavallee told Dr. Skuherska that he had been diagnosed with schizophrenia. The high dosage of medication that he had been on previously, Seroquel, is consistent with schizophrenia.
Dr. Skuherska provided Lavallee with one Ativan pill and prescribed 20 Ativan pills, 1 mg. twice per day and Seroquel, 250 mg three times per day. Although there is no record of the duration for which the Seroquel was prescribed, the doctor testified that it likely was for one month. This prescription, if filled, would have provided Lavallee with sufficient medication to take him well beyond June 9, 2009.
According to the record, the doctor spent no more than 10 minutes with Lavallee, and her role was not to evaluate him, but rather simply to prescribe medication for him. She testified that during their meeting, Lavallee was very calm and exhibited no observable symptoms of schizophrenia or of anxiety.
Lavallee was returned to the detachment and to his cell. No medical information was provided to the Québec police by either the doctor or Lavallee.
At 17:30 hours on June 6, 2009, a female police officer attended at the detachment and brought Lavallee’s medication, the Ativan and the Seroquel. It appears that Lavallee received the medication as follows: June 6, 2009, at 20:13 hours; June 7, 2009, at 10:15 hours; June 7, 2009, at 15:45 hours; June 8, 2009, at 09:30 hours. Lavallee did not receive any further medication until June 11, 2009, two days after his interview with Ramsay.
According to Gagnon, before Lavallee was transferred from the detachment, she handed to Ayotte a paper with the dosage instructions for Lavallee’s medication. She believed that the paper was not a prescription, but rather dosage instructions. She agreed that it was possible that the paper was a doctor’s prescription.
On June 8, 2009, at 16:45 hours, Detective Constable M. O’Malley (“O’Malley”), of the Greater Sudbury Police Service (“G.S.P.S.”), attended at Val d’Or and arrested Lavallee for first degree murder of Whitney.
Lavallee was given his right to counsel immediately following his arrest. He understood his right to counsel and indicated again that he wished to wait to call a lawyer in Ontario. Lavallee was also read a primary and secondary caution with respect to anything he might say to police and he understood these cautions. At the suggestion of O’Malley, Lavallee contacted a Sudbury lawyer by telephone before leaving the Val d’Or detachment.
At 17:05 hours Sergeant Scott Taylor (“Taylor”) of the Ontario Provincial Police (“O.P.P.”) attended at the Val d’Or detachment. He was the officer responsible for transporting Lavallee from Val d’Or to Sudbury. He met with O’Malley who advised him that (a) Lavallee had been taken to hospital for withdrawal, (b) Lavallee had been prescribed medication, but the prescription had not been filled, and (c) the last dosage was supposed to be at 15:00 hours but there was no more medication. Taylor was also told that there was a prescription in Lavallee’s property bag.
Lavallee was secured for transport and removed from the Val d’Or detachment.
Between June 4, 2009, when Lavallee turned himself in at Lebel-sur-Quévillon, and 17:50 hours when Lavallee was placed in the police van for transport, he was not observed by any of the police or security officers dealing with him to be suffering from any anxiety or any mental illness. The only thing of significance was the “little bit” of shaking observed by Ayotte and attributed by him to drug withdrawal.
At 20:25 hours on June 8, 2009, the van arrived at the Kirkland Lake detachment of the O.P.P. Lavallee was removed from the van to use the washroom. At the same time, a prisoner identified as Darren Picton was handcuffed, shackled and restrained for the transport along with Lavallee. The prisoner was undercover officer Detective Sergeant Darren Webster (“Webster”) of the O.P.P.
Webster and Lavallee were placed in the van. Webster was equipped with an electronic voice recording device which was active, but not visible to others. A recording was made of Lavallee’s conversations. He related to Webster that he had burned and buried the body of a girl, and he described the sound and smell of her burning flesh. He spoke about how he was facing a long period of incarceration.
The police van travelled to Temagami, Ontario, where it arrived at 22:26 hours, and picked up a second prisoner who was also an undercover officer, Detective Sergeant G. Titley of the O.P.P. The two undercover officers were not known by Lavallee to be police officers and they were not persons in authority in law.
The conversation between Lavallee and the two undercover officers was recorded pursuant to a valid judicial authorization. Neither undercover officer had any information about the investigation or the case, other than the fact that their assignment related to the investigation of a homicide that occurred in Northern Ontario.
During the transport from Val d’Or to Sudbury, Lavallee was observed by both undercover officers to be articulate, coherent, observant, in a good mood, and having a sense of humour. Lavallee appeared “normal”. He displayed no unusual behaviour.
The police van arrived at the G.S.P.S.” headquarters at 00:53 hours on June 9, 2009. Present in the booking area were Detective Sergeant R. Waugh (“Waugh”), Staff Sergeant D. Treitz (“Treitz”), and Constable T. Katz (“Katz”), all of the G.S.P.S. Also present at headquarters was O’Malley. O’Malley told Waugh that Lavallee and G.H. had discussed committing suicide before they turned themselves in in Québec.
A record entitled “Prisoner Log”, made in the ordinary course of business of the G.S.P.S. was created when Lavallee was booked in. Katz was the information officer who was required to create the prisoner log relating to Lavallee.
Lavallee was booked in at 00:54 hours on June 9, 2009. According to Katz, upon his arrival in the booking in area, Lavallee was asked by Treitz to confirm that he was Kris Lavallee and whether he knew why he was there. Katz testified that during the booking in process, Lavallee appeared very calm, not agitated, not upset. He exhibited a normal disposition. He was responsive to direction.
As part of the booking in procedure, Katz obtained information from Lavallee respecting his identification, description and condition.
Katz called the police service communication centre to inquire about cautionary codes for Lavallee. There were none.
Katz was also required to obtain information for the Prisoner Log under the heading “Cautionary/Additional Information”. Some of the information under that heading comes directly from an accused person and some of the information comes from observations made by the information officer.
Although Katz had no specific recollection of asking Lavallee whether he was on or required medication, she was unequivocal that she “absolutely” would have made that inquiry of Lavallee. That is how the form is filled out: by observation and by direct questions of the prisoner by the information officer. Katz said that if Lavallee had indicated that he needed medication, she would have indicated it on the form and she would have obtained it for him. She said “I take care of my prisoners”.
Katz is an experienced police officer, and I conclude that she would have followed the procedure and made the inquiries of Lavallee relating to medication and mental illness. Lavallee did not tell Katz that he needed medication, or suffered from a mental illness, nor did he indicate, by his conduct or demeanour that he suffered from anxiety or mental illness, or any condition which required medical attention.
Those portions of the form dealing with “mental illness/developmental disability – self identified” and “mental illness/developmental disability – suspected”, as well as “medication required” section, were left blank. However, at some point between 01:00 and 01:05 hours, Katz was given some information, by someone, relating to medication for Lavallee, and she made the following notation at page 2 of the Prisoner Log: “Meds – Perscrition[sic] in property – not filled for ‘withdrawl’[sic]. She testified that the information could have come from Lavallee or from the transport officer (Taylor).
Katz further testified that she did, at some point during the booking in process, have in her hand a piece of paper with handwriting on it. She believes it was a prescription, although she does not recall who it was for. She also recalled having handed that piece of paper to Waugh, although he had no recall of this whatsoever.
Lavallee was given an orange jumper to replace the clothing he had worn during transport.
At 01:00 Lavallee spoke with Sudbury lawyer Alex Toffoli by telephone, privately. He was subsequently lodged in a cell.
At 02:29 hours, Lavallee’s orange jumpsuit was taken from him and replaced with “baby dolls”, attire which is worn when there is a suicide concern. Lavallee had been flagged as suicidal on two occasions, that is, March 26, 2007, on the NICHE Record Management System kept by the G.S.P.S., and as a result of the alleged discussions between G.H. and Lavallee before June 4, 2009, about committing suicide.
Lavallee was observed, at regular intervals by Katz until 05:30 hours when her shift ended. Lavallee was observed to be sleeping or responsive. No unusual behaviour was noted by either Katz or by Constable S. Mills who relieved Katz and was responsible for Lavallee until 09:45 hours when Lavallee was taken to the interview room.
At 07:30 hours Ramsay spoke to Lavallee to advise that he would be interviewing him. Lavallee agreed to that.
At 08:00 hours Lavallee was removed from his cell for purposes of photographs and fingerprints, and then returned to his cell.
At 09:45 hours, Lavallee was taken to the interview room. The interview was recorded and videotaped. The interview lasted until 13:54 hours.
Ramsay spoke with Lavallee and the following issues were covered:
(a) that the interview was being recorded;
(b) that Ramsay was a Detective Constable;
(c) that Lavallee was under arrest for first degree murder of Whitney Van Der Wouden;
(d) that Lavallee had the right to retain and instruct counsel without delay;
(e) that Lavallee had already spoken to counsel and was happy with the advice he had received;
(f) that Lavallee was not obliged to say anything to Ramsay, and that anything he did say could be used in evidence.
It is clear from the evidence that Lavallee understood what was being said to him. He confirmed that “whatever I say will, can be used against me when I’m in court.” He further confirmed that his lawyer had told him “not to tell you guys anything.”
The following exchanges between Lavallee and Ramsay are relevant:
Page 5
Ramsay: Yeah. Okay. Alright so you don’t wanna call a lawyer now, you already talked to him.
Lavallee: Yeah well he told me not to tell you guys anything, but uh if you give me some cigarettes maybe we can like talk about this like…
Lavallee: …I’m pretty stressed out right now like I’m starting to…
Ramsay: I can see that. Are you okay?
Page 6
Lavallee: I suffer from anxiety attacks…
Ramsay: Oh do you. Okay.
Lavallee: …and <unintelligible>.
Ramsay: Well I can tell you, I can tell you that um I’m not here to uh to put any pressure on you…
Lavallee: <Unintelligible> <nods head up and down indicating positive>
Ramsay: …and to, to, to stress you out. If you are feeling stressed out we can take a bit of a break okay.
Page 7
Ramsay: Okay. So two <2> more things I have to read. Okay so you’re uh you’re gonna be charged with First Degree Murder. Do you wish to say anything in answer to the charge? You’re not obliged to say anything unless you wish to do so, but whatever you do say may be given in evidence. Do you understand that?
Lavallee: Yeah <nods head up and down indicating positive>.
Ramsay: And what does that mean to you?
Lavallee: That whatever I say will be uh, can be used against me when I’m in court.
Page 9
Ramsay: Okay. So I just want <unintelligible> fact that you’ve talked to those guys, those guys are in uniform you know they may be intimidating to some people. I just don’t want the fact that you’ve talked to them to make you feel like you have to tell me anything.
Lavallee: Mm hmm <nods head up and down indicating positive>
Page 11
Ramsay: And you’re up here with me to talk about what happened.
Lavallee: Yeah.
Ramsay: Okay. Uh <clears throat> one thing I do wanna say though is that if you had nothing to do with this okay I want you to tell me…
Page 12
Ramsay: …and we’ll prove that, however I want you to tell me the truth.
Page 15
Ramsay: …okay. And we’re gonna talk about who you were with when Whitney died.
Lavallee: <Nods head up and down indicating positive>
Ramsay: Okay. So you’re okay with no water for now.
Lavallee: Yeah I just want a cigarette.
Ramsay: You just want a cigarette.
Lavallee: Really, really bad like I wanna talk about this…
Ramsay: Uh…
Lavallee: …but I need cigarettes like.
Ramsay: <Unintelligible> okay <nods head up and down indicating positive>
Lavallee: That’s the only thing like, like we can talk about this <unintelligible>…
Ramsay: Yeah, oh I’m sure.
Lavallee: …but I just need some cigarettes like…
Ramsay: Okay.
Lavallee: Like this is a big deal like this is…
Page 16
Ramsay: It is.
Lavallee: …<unintelligible> nothing like…
Ramsay: It is, yeah I’m not gonna lie to you it is.
Lavallee: …this is a big deal <unintelligible>.
Ramsay: It’s probably like nothing you’ve ever had to deal with before.
Lavallee: Exactly.
Ramsay: Okay. Uh the only thing is I can’t promise you anything. That’s the problem…
Lavallee: <Unintelligible> I know you can’t promise me anything…
Ramsay: <Unintelligible> you know…
Lavallee: …but – like.
Ramsay: But uh let’s try to make this uh I guess as quick as possible then.
Lavallee: I’m not gonna say nothing without cigarettes. <Unintelligible> like, like I know you can’t promise me anything…
Page 17
Ramsay: <Unintelligible> <nods head up and down indicating positive>
Lavallee: …but like if we can get some cigarettes then we can start my discussion but…
Ramsay: <Unintelligible>
Lavallee: …there’s no way I’m gonna answer any questions without smoking a few cigarettes and straightening my head out…
Ramsay: <Sets notebooks down on floor beside chair>
Lavallee: …cause my – fuckin clouded and my heads <moves head side to side> just like running a million <1000000> miles a minute so…
Ramsay: Yeah.
Lavallee: …to calm that down like…
Ramsay: Yeah.
Lavallee: …nothing makes sense to me right now like I need to be…
Ramsay: Mmm.
Lavallee: …<unintelligible> like.
Page 19
Ramsay: Right. The evidence right now points to you. That’s why you’re here and I believe that – I respect the fact that you wanna, you wanna say your peace and, and, and uh and tell me about that. So can you tell me why, why you’re here.
Lavallee: <Sighs> <moves head side to side indicating negative> no not really, I need cigarettes <unintelligible> I just <shrugs shoulders> either that or get me a my lawyer or whatever, I, cause that’s the only way it’s gonna go down, the only way I’m gonna talk to you guys. The only way you’re gonna get the truth is with cigarettes <unintelligible> if that’s <unintelligible>.
Ramsay: <Unintelligible>
Page 20
Lavallee: If you’re not gonna give me cigarettes well then we’re not gonna talk cause <unintelligible> truth <unintelligible> I’ll have to go to <unintelligible> jail and talk to my lawyer or whatever cause you know what I mean. I have to be calm to tell you like what’s going on like whatever you know what I mean…
Ramsay: Mm hmm.
Lavallee: …like I’m not gonna be stressed out in my head going a million <1000000> miles a minute and say something wrong and fuckin…
<Simultaneous conversation>
Ramsay: <Repositions himself on chair><unintelligible>
Lavallee: …you know what I mean like <shrugs shoulders> I’m not gonna <unintelligible> my lawyer and <unintelligible> fuckin put words in wrong places and…
Ramsay: Mm hmm.
Lavallee: …end up uh in, in deep shit for the rest of my like because I was too stressed out to fuckin conversate <ph> with you, you know what I mean.
Ramsay: Mm hmm.
Page 21
Lavallee: So like either that or some uh some kind of medication like <chuckles> I don’t know like Ativan like I don’t know…
Ramsay: Mm hmm.
Lavallee: …but uh…
Ramsay: You normally take medication.
Lavallee: Yeah.
Ramsay: You were prescribed by a doctor.
Lavallee: Yeah some Seroquel and stuff like that.
Ramsay: And how often do you take that?
Lavallee: <Coughs> I haven’t taken it in a long time, but I took some in Québec. They brought me to the hospital and get some…
Ramsay: Mmm.
Lavallee: …so I could calm down there.
Ramsay: Mm hmm. How much Seroquel do you take?
Lavallee: <Yawns> I don’t know I think I was on two hundred <200> milligrams three <3> times a day or something like that before.
Page 22
Ramsay: Okay.
Lavallee: The last time I was on it.
Ramsay: Who’s your doctor?
Lavallee: I don’t really have one.
Ramsay: Oh. How do you get the meds then?
Lavallee: Through jail. That’s the last time I was on them.
Ramsay: Okay. When were you in jail last?
Lavallee: Where?
Ramsay: When?
Lavallee: About a <1> year ago.
Ramsay: Okay. Was that for stuff that happened here?
Lavallee: Yeah. Yeah stuff that happened in Sudbury.
Ramsay: Okay. <Belches> excuse me. So Ser-, Seroquel that’s for um, what’s that for?
Lavallee: Uh I don’t know just bi-polar and whatever the hell.
Ramsay: Mmm.
Page 23
Lavallee: Schizophrenia.
Ramsay: Mmm and Ativan.
Lavallee: To calm me down.
Ramsay: <Touches ankle> okay like a tranquilizer.
Lavallee: <Nods head up and down indicating positive> <unintelligible>
Ramsay: Okay. So we’re kind of at a bit of an impasse here.
Lavallee: Yeah.
Ramsay: <Unintelligible>
Lavallee: Just get the cigarettes here <unintelligible> that’s the only way I can say anything.
Ramsay: Mm hmm.
Lavallee: Cigarettes we can talk, but if not then it’s not happening. You might as throw me back in that cell <unintelligible>. No way I’m going through this with my mind going a hundred <100> miles a minute like <unintelligible>.
Ramsay: Yeah. I mean having a, having a cigarette is certainly not like having an Ativan <unintelligible>.
Page 24
Lavallee: Well no it is to me. It’ll calm me right down. A pack of cigarettes and an ashtray <unintelligible sound> we’re good, we can talk. <Unintelligible> go through the whole – everything but <coughs>…
Ramsay: If I were to say that uh you know I’m still gonna ask you some questions about what happened; are you gonna answer them?
Lavallee: Without cigarettes?
Ramsay: Yeah.
Lavallee: No.
Ramsay: No. And if uh I mean like I said before this uh this video’s gonna be played in court.
Lavallee: Yeah I know.
Ramsay: We know that, you know that <unintelligible> um you know how do you think you’re gonna look when you’re bargaining here for <unintelligible>…
Lavallee: <Unintelligible> cigarette cause I’m stressed out, a guy that’s stressed out that needs something to calm him down. Like that’s the bottom line.
Ramsay: Mm hmm. How’s that gonna…
Bottom Page 25 and Page 26
Ramsay: <Enters main Interview Room> <places a cup on desk> we uh <places notebook/pad on floor beside chair> got you a cigarette. <Hands Mr. Lavallee a cigarette> um the only thing is, is that we gotta be clear here. Okay. I’m giving this cigarette to you because you’re telling me that you’re stressed out.
Lavallee: Yeah.
Ramsay: …and that you’re upset and that you wanna have a cigarette to calm you down.
Lavallee: Yeah.
Ramsay: I don’t want this to be in any way an in-, like what we call an inducement.
Lavallee: Yeah.
Ramsay: Okay which means I’m not giving this to you to get a statement out of you.
Lavallee: Yeah <nods head up and down indicating positive>.
Ramsay: Okay. I’m giving this to you to make you feel comfortable. Okay so that you’re relaxed a little bit <repositions himself on chair> cause I can see you’re starting to get a little, a little more agitated.
Lavallee: Yeah.
Ramsay: Okay. Do you understand that?
Lavallee: Yeah.
Page 27
Ramsay: Feel a bit better.
Lavallee: A little bit.
During the course of the interview, Lavallee initially told Ramsay that Whitney had been drunk, had fallen and hit her head, had seizured and died despite Lavallee’s efforts to save her. Later in the interview, Lavallee made admissions about having been engaged, together with G.H., in some sexual contact with Whitney, his involvement in the death of Whitney and the disposal of her body by burning her. At the end of the interview, Lavallee advised Ramsay that “it had to come out”.
As the interview progressed, Lavallee became emotional and tearful.
Lavallee was provided with cigarettes throughout the interview. In total, he smoked 15 cigarettes.
After the interview, Lavallee was transported to bail court, where the charge was read and Lavallee acknowledged understanding the charge.
Lavallee was then taken to the Sudbury Jail for admission, at about 18:00 hours. The admitting officer testified that Lavallee was not emotional or tearful. He was responsive and co-operative.
The Admission Checklist form completed and signed by the admitting officer reflects his observations of Lavallee and contains a record of direct questions put to Lavallee regarding an intention to kill or otherwise harm himself. He denied having such intention, but advised the officer about a suicide attempt in 2007. He further responded to the officer’s question regarding medication by telling him he was to take Seroquel and Ativan.
At his request, Lavallee was placed in super protective custody.
At 08:40 hours on June 11, 2009, Lavallee was brought to the medical office and was seen by RN Lisa Ryan (“Ryan”), who has training in psychiatry. During her assessment of Lavallee, she asked him about suicidal ideation. Although he denied having suicidal thoughts, Ryan did not trust Lavallee’s answers and felt that “there was something there”. Lavallee was therefore referred to Dr. Joseph, the jail’s psychiatrist.
Lavallee complained to Dr. Joseph about anxiety, but the doctor noted that there was no observable anxiety.
According to Dr. Joseph, Lavallee told him that he had taken Seroquel in the past, but had stopped taking the medication when he had been released from jail.
Dr. Joseph described Lavallee at times as being “cynical” and “flippant”. The doctor had no concerns about Lavallee based on his observations or on the information provided by Lavallee. He diagnosed Lavallee as having substance abuse disorder, antisocial personality disorder, learning disability, problems secondary to being in jail, and problems secondary to chronic substance abuse. He prescribed Seroquel 100 mgs three times per day.
At mid-day on June 11, 2009, Lavallee attempted suicide. The suicide attempt is not relevant to the voluntariness inquiry.
Lavallee continues to be detained at the Sudbury Jail and continues to be under the care of the jail psychiatrist.
Issues:
5(a) Whether the statement given to Ramsay was voluntary. The onus is on the Crown to establish voluntariness beyond a reasonable doubt.
(b) Whether the police’s failure to provide Lavallee his prescribed medication or the failure to inquire about the prescription and the condition it was supposed to treat, in the context of ensuring his safety and security, breached Lavallee’s rights under s. 7 of the Charter:
i. By contributing to his suicide attempt of June 11, 2009;
ii. By contributing to his giving up his right to silence.
(c) If Lavallee’s s. 7 rights were breached, whether his utterances to the undercover officers and his statement to Ramsay should be excluded under s. 24(2) of the Charter?
(a) Voluntariness:
Position of the Crown:
6The evidence establishes that there was no threat or promise or inducement recognized in law made to Lavallee by any person in authority at any time following his apprehension on June 4, 2009.
7The providing of cigarettes to Lavallee was in response to his request for cigarettes to calm himself in order to be able to talk to Ramsay without making mistakes. The cigarettes were not given to Lavallee in order to get a confession from him. They were in response to Lavallee’s advice to Ramsay that having a cigarette would be like having an Ativan and it would calm him right down.
8At no time did Lavallee convey to the authorities, either by his behaviour or directly, that he required medication to treat a major mental illness or any physical or medical condition. The only information the police had was that Lavallee had been taken to the hospital and had been prescribed medication for withdrawal symptoms. Until Lavallee advised Ramsay that he suffered from anxiety attacks and had been diagnosed with schizophrenia and bi-polar disorder, no one in authority had any information about Lavallee’s diagnosed schizophrenia, or any other mental illness.
9It is the Crown’s position as well that there was no air of oppression created by police for the purpose of obtaining a statement from Lavallee.
10Lavallee’s ultimatum to police with respect to the provisions of cigarettes demonstrated that he had set a goal, had determined how to obtain his goal and ultimately how to manipulate police into complying with his demand for cigarettes.
11Lavallee was in control of the situation.
12Lavallee gave his statement voluntarily and of his own free will.
Lavallee’s Position – Voluntariness:
13Lavallee submits that the provision of cigarettes to him was an inducement.
14Lavallee submits further that providing cigarettes to him in exchange for a statement while withholding his anti-anxiety medication and anti-psychotic medication was a legally impermissible inducement. It should have been clear to Ramsay that Lavallee was requesting cigarettes to attenuate his anxiety which would have otherwise been addressed by his prescribed medication.
15It is submitted that the inducement (the cigarettes) was strong enough to deprive Lavallee of the ability to make an effective choice about whether or not to speak to Ramsay.
16The interview was conducted in oppressive circumstances, considering the following facts:
(a) Lavallee had been detained in holding cells, with few or no amenities, such as access to a shower, for five days before the day of the interview;
(b) Lavallee had not received any of his prescribed medication since June 8, 2009, at 09:30 hours;
(c) Lavallee had travelled some seven hours the night before, in less than comfortable circumstances, arriving in Sudbury in the middle of the night;
(d) Lavallee had had a limited opportunity to sleep the night before the interview;
(e) Lavallee had nothing on his feet during the interview;
(f) Lavallee’s urgent request to go to the bathroom was not granted until Ramsay obtained a commitment from Lavallee to talk about Whitney;
(g) Lavallee’s request to speak to his lawyer was denied;
(h) Lavallee was denied his medication even after requesting it in the interview; and
(i) Lavallee is a diagnosed schizophrenic and suffers from bi-polar disorder.
17There exists a reasonable doubt that Lavallee’s statement was voluntarily made, and therefore it should not be admissible at his trial.
General Principles:
18Both Crown and Defence agree on the general principles applicable on the issue of voluntariness. They agree that R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, and R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, set out the state of the law in Canada on the issue of voluntariness of statements of accused persons to persons in authority.
19I am once again relying on the Crown’s Factum on voluntariness and adopt, as part of this ruling, paras. 118, 119, and 120.
20In assessing voluntariness, the court must be cognizant of the twin goals of protecting the right of the accused and not unduly limiting society’s need to investigate and solve crimes. This assessment must be made in the context of the totality of the circumstances surrounding the taking of the statement: see Oickle.
21The court must determine, if there was an inducement, whether the inducement, alone or in combination with other factors is strong enough to raise a reasonable doubt that the “will of the subject has been overborne.”
22Oppressive circumstances exist when authorities make the circumstances of interrogation so distasteful that a suspect makes a confession or statement to escape those conditions, or, because his free will has been overborne. Such factors as deprivation of food, clothing, water, sleep or denial of medical attention, or excessively aggressive questioning over an extended period of time are factors that can lead to an oppressive atmosphere and an involuntary statement.
Analysis:
23I will address the issue of voluntariness by discussing the impact of the cigarettes as an inducement, the impact of the denial of the medication, and the presence of oppressive circumstances.
The Cigarettes as Inducement:
24I cannot, on the evidence, conclude that, even if Lavallee was bargaining to obtain cigarettes as a replacement for medication, that that somehow affected the voluntariness of his statement.
25Very shortly after the interview began, Lavallee first raised the topic of cigarettes. It is Lavallee that appears to have offered an inducement. He told Ramsay that his lawyer told him not to tell police anything, “but uh if you give me some cigarettes maybe we can like talk about this like”. Ramsay did not immediately respond to the request. Lavallee then proceeded to say that he was stressed out and that he suffered from anxiety attacks. Ramsay reiterated that he was not there to put any pressure on Lavallee.
26Ramsay continued to ask questions. A few minutes later, Lavallee repeated his request. He said that he wanted to talk about this but he needed cigarettes. He told Ramsay that “this is a big deal”, he knows that Ramsay cannot promise him anything, but indicated that “I’m not gonna say nothing without cigarettes”.
27As I indicated earlier, he was conveying to Ramsay, at p. 19, that cigarettes would enable him to calm down and to tell the truth:
[E]ither that or get me my lawyer or whatever, I, cause that’s the only way it’s gonna go down, the only way I’m gonna talk to you guys. The only way you’re gonna get the truth is with cigarettes.
28Ramsay relented and obtained a cigarette for Lavallee. He told Lavallee that he was giving him the cigarette to calm him down and not to get a statement out of him. Lavallee said he understood that.
29Another cigarette was provided to Lavallee later on, after which Lavallee felt a “little bit better”, at p. 27, and began responding to questions about Whitney and G.H.
30Later in the interview, more cigarettes were provided to Lavallee, at his request. He acknowledged Ramsay’s statement to him, at p. 48, that the cigarettes were not to “get a something outta you”.
31I do not conclude that the providing of cigarettes to Lavallee, at his insistence, was an inducement by police. If it was an inducement, then it was not strong enough to raise a reasonable doubt about whether Lavallee’s will was overborne. Throughout the interview, Lavallee was in control of what information he was providing to Ramsay. Even after having received cigarettes, he provided a version of events that he eventually agreed was not true. He chose to speak and to continue to speak to Ramsay. That he wanted to speak about the death of Whitney is evidenced by his statement to Ramsay that “It had to come out” (p. 122).
The denial of medication:
32On the evidence, there is nothing about the issue of the medication which is capable of raising a reasonable doubt about the voluntariness of Lavallee’s statement to a person in authority, Ramsay.
33It appears that although Lavallee had been taking Ativan and Seroquel at some earlier point in time, he had stopped taking the medication several months or up to a year before June 2009.
34Although there is evidence that Lavallee had in the past been diagnosed as being schizophrenic and suffering from bi-polar disorder, there is no evidence that he ever exhibited any symptoms of such mental illness, or of any medical condition, to any person who came into contact with him between June 4 and June 9, 2009. The only reference to those two diagnosed conditions is Dr. Skuherska’s note that Lavallee reported to her experiencing speed in his brain, and her note to the effect of “hallucinations + -”.
35The doctor’s own observations were that Lavallee appeared very calm and did not display any symptoms of his main complaint, anxiety.
36In fact, with the exception of Ayotte who observed a little bit of shaking which he attributed to withdrawal, not one person observed any mental illness or anxiety on the part of Lavallee, save and except for Ramsay who uses the words “upset” and “stressed out” when referring to Lavallee’s emotional state.
37Although Lavallee told Ramsay that he was a diagnosed schizophrenic and bi-polar, he did not indicate to him that he was suffering any symptoms of those conditions during the interview, or that he was suffering from those conditions at any time leading up to the interview.
38Lavallee did not at any time request medication for schizophrenia or bi-polar disorder. The only medication he referred to as wanting, and it was not really a clear request, is Ativan. It was requested in the context of an alternative to a cigarette:
So like either that or uh some kind of medication like I don’t know, like Ativan (p. 21).
39Lavallee’s first request of Ramsay was for a cigarette, and this was before he advised Ramsay that he suffers from anxiety attacks. He did not mention any medication until later in the interview, after the request for cigarettes had not yet been granted, and he indicated to Ramsay that his “head is going a million miles a minute.”
40It appears that Lavallee’s first choice was to have a cigarette. It was his first choice while detained in Québec as well. He requested to smoke before he requested to see a doctor.
41A review of the transcript of the transport reveals that Lavallee told the undercover officer about wanting cigarettes, then medication, to calm down. At page 121, he said the following:
I’m like – Fuck that! Gimme my meds! ... And they’re like – First I was like –Can I have a cigarette? <Unintelligible> cigarettes. Either can you give me a cigarette so I can calm the fuck down? Or you gotta bring me to the hospital to get my fuckin Seroquel so I can fuckin just calm down.
42During the police interview, at pp. 23-24, Lavallee characterized cigarettes as a tranquilizer, as effective as Ativan:
Ramsay: I mean, having a cigarette is certainly not like having an Ativan.
Lavallee: Well no it is to me. It’ll calm me right down. A pack of cigarettes and an ashtray <unintelligible sound> we’re good, we can talk. <unintelligible> go through the whole – everything.
43Lavallee told Ramsay that cigarettes would calm him right down.
44Although Lavallee expressed concern about the risk of putting “words in the wrong places” and increasing his jeopardy, and that nothing made sense to him, his message to Ramsay was clear. He wanted cigarettes and he was clear that cigarettes would allow him to calm down and to tell the truth. There is no evidence that Lavallee was suffering from any condition which was depriving him of effectively choosing to speak or not speak to Ramsay. And I cannot conclude that any lack of medication was responsible for depriving him of any choice about speaking to police.
Oppressive Circumstances:
45If police subject an accused person to “utterly intolerable conditions” with the potential of producing an involuntary and therefore unreliable confession, then such confession should be excluded: see Oickle.
46On the record before me, I am satisfied that there existed no such oppressive circumstances during the June 9, 2009, interview.
47While it is true that Lavallee had been detained in a “holding cell detention” for five days leading up to the interview, he was clothed and fed, and was taken to hospital at his request. He was observed to be sleeping or resting much of the time in Québec. He was not subjected to intolerable or even mean conditions, at any time up to and during the interview. He was treated respectfully throughout the booking in procedure and through the night.
48I have already discussed my conclusion that the medication issue did not impact, in any significant manner, Lavallee’s ability to choose whether or not to speak to Ramsay.
49Although it appears that Lavallee would not have had the opportunity to sleep for more than some five hours, he did not complain of any fatigue.
50Lavallee was provided with coffee, and was offered food before the interview. During the interview itself, he was offered and provided with water. He was told he could request a break. He was provided with cigarettes at his request.
51Although Lavallee was not wearing any footwear, that did not appear to be of any concern to him.
52He was fully clothed, having been provided with a jumpsuit to replace the “baby dolls” for his comfort and to prevent him from having to walk through the halls of the police headquarters in inappropriate or embarrassing attire.
53There is nothing in the evidence to support the suggestion that the interview was conducted in oppressive circumstances.
54I conclude that the Crown has proven voluntariness beyond a reasonable doubt.
(b) Sections 7 and 24 of the Charter:
Lavallee’s Position:
55Lavallee submits that the state actively breached his right to life and security of the person under s. 7 of the Charter by denying him his prescribed medication.
56The onus is on Lavallee to establish the breach on a balance of probabilities.
57Lavallee submits that the failure to provide him with his medication breached his s. 7 rights in two ways.
58Firstly, it breached his right to life and security by negatively impacting on his physical and psychological well-being and by contributing to his suicide attempt.
59Secondly, the failure to provide Lavallee with his medication also contributed to (“precipitated”) his giving up his right to silence under s. 7 of the Charter, both in regard to the statements made to the undercover officers and to Ramsay.
60Lavallee’s position is that the police were negligent in their handling of Lavallee’s medical condition and need for medication, giving higher priority to their evidence gathering function, over that of ensuring the safety, security, and well-being of the accused who was in custody and vulnerable. This was a breach of s. 7. This “negligent information breakdown” began at the point at which Lavallee was being prepared for transfer to Ontario.
61If security officer Gagnon is correct, then there was medication left on June 8, 2009, when Taylor assumed responsibility for Lavallee. For some unknown reason, whatever medication that was left, if any, was not given to Taylor. Taylor was advised by O’Malley that the medication had run out. Taylor did not make any enquiries about the reasons for the medication, or about obtaining more.
62None of the officers in Sudbury attempted to locate a prescription relating to Lavallee notwithstanding that there was some information to the effect that there was a prescription in Lavallee’s property.
63Lavallee argues a twofold deprivation of his s. 7 right to life and security of the person (being denied his medication, and the failure of police to attribute sufficient importance to the fact that Lavallee had been prescribed medication thereby signalling to them that he had a medical or psychological condition that needed to be addressed). This breach was not in accordance with the principles of fundamental justice.
64Lavallee submits that the right to a fair trial would be denied in circumstances where evidence to be used against the accused person at trial was obtained during the period when the person was denied access to medication, or when his medical condition and possible need for medical assistance was ignored by the authorities.
65Lavallee submits that the breach was a serious one and suggests that the failure to provide him with his medication, or the police’s lack of regard for his well-being especially when police intended to interrogate him, shows negligent disregard for Lavallee’s Charter rights.
66The impact of the breach on Lavallee’s right to life and security of the person was considerable.
67The evidence Lavallee is seeking to exclude is only one aspect of the Crown’s case, and, although there is a high societal interest in having the case adjudicated on its merits, the administration of justice would be negatively affected if the evidence is admitted, on the circumstances of this case.
68As a result, the utterances made to the undercover officers and the statement made to Ramsay should be excluded pursuant to s. 24(2) of the Charter.
The Crown’s Position:
69Firstly, the Crown submits that s. 7 is not engaged on the facts before the court, given that there is no relationship between the harm complained of (the risk of suicide and the risk of an involuntary statement) and any action by the state.
70There is nothing to connect the suicide attempt on June 11, 2009, with anything police did or did not do during the transport to Sudbury, or before or during the interview on June 9, 2009.
71Lavallee and G.H. had discussed suicide before they turned themselves in to the authorities in Québec. When that information came to the attention of police, they took precautions to reduce the risk, i.e. the provision of “baby dolls”.
72Police had no actual knowledge of Lavallee’s medical history, and no knowledge about any need for medication other than that Lavallee had obtained a prescription for medication to address withdrawal symptoms. There was no factual basis on which to make further inquiries about Lavallee’s health or need for medication.
73It is submitted that there was no state imposed serious psychological stress which deprived Lavallee of the ability to make fundamental decisions concerning his own well being. There was nothing preventing Lavallee from disclosing information to police about his health and well-being, or to demand the medication he had been prescribed.
74The Crown submits as well that the evidence sought to be excluded was not ‘obtained in a manner’ that violated s. 7 as there is no causal connection between Lavallee not having his medication and his giving information to police during his transport on June 8 and during the interview on June 9. His statements were freely given. His will was not overborne.
75There is also insufficient evidence to establish a causal connection between Lavallee not having his medication on June 8 and 9 and his suicide attempt on June 11.
76As well, there is no sufficient temporal connection between Lavallee not having his medication and the statements made on June 8 and 9, 2009, to constitute a single transaction in the events from the beginning of the transfer from Val d’Or to the end of the interview on June 9, 2009.
77Without a causal connection and with little or no temporal connection, the evidence was not ‘obtained in a manner’ that infringed on Lavallee’s s. 7 rights.
78The Crown submits that, even if the evidence was obtained in a manner that violated Lavallee’s s. 7 rights, the police were acting in good faith and none of their actions had any impact on Lavallee’s health or on his decision to give up his right to silence. Admitting the evidence would not negatively affect the administration of justice in the long term.
Analysis:
79I begin with the submission that the failure to provide Lavallee with his medication “precipitated his giving up his right to silence”, that is, that Lavallee incriminated himself during the transport and in the interview with Ramsay because he had not received his medication.
80I have already concluded that, with regard to the statement to Ramsay on June 9, 2009, there is no reasonable doubt that it was voluntary. Lavallee exercised his free will in choosing to speak with Ramsay, and he did so in circumstances that were not oppressive. There was as well no relationship between Lavallee not having his prescribed medication and the decision he made to speak to Ramsay.
81I likewise am unable to conclude, on the evidence, that (a) police were negligent in their duty to ensure Lavallee’s safety and well-being while in custody, or (b) that any such negligence deprived him of his right to choose whether to speak or not.
82I cannot then find that there has been a breach of the right to silence based on the failure to provide the medication, either with regard to the statement given on June 9, 2009, or the statements made to the undercover officers during the transport.
83The record discloses that Lavallee did not display any symptoms of mental illness or of serious psychological stress, during the transport to Sudbury or during the interview.
84As I indicated earlier in these reasons, he was coherent, articulate, and even at times, jovial. There is nothing about what he said, how he said it, or what he did during the transport which would indicate or even suggest that he was in need of medication at that time, or that he was deprived of his choice of whether to speak or not. He told Webster that he had been told by his lawyer to “keep his mouth shut”. There is also no evidence that the undercover officers actively elicited any information from him.
85The fact that Lavallee had been prescribed medication in Québec and that the police were made aware of that did not trigger an obligation to make further inquiries about Lavallee’s medical condition, or about his need for medication for his safety and well- being.
86Para. 15 of the Crown’s Factum on the Charter Issues clearly sets out the reasons for this:
(a) There was never any indication in any record created in Québec that Lavallee was mentally ill or suicidal, and no information of that nature was ever relayed by Québec police officers to Ontario officers;
(b) Lavallee did not tell Ayotte that he had previously been diagnosed with schizophrenia and bi-polar disorder. Lavallee did not tell Ayotte or anyone about what he had told Dr. Skuherska;
(c) O’Malley and Taylor were made aware of a prescription for withdrawal. They had no way of knowing about Lavallee’s previous diagnosis of schizophrenia (2007), or about anything Lavallee had told Dr. Skuherska;
(d) No one who dealt with Lavallee between June 4, 2009, and June 9, 2009, observed any symptoms or behaviour on the part of Lavallee which could have suggested that he suffered from mental illness, or some other significant medical condition, or that he required medication (save and except from the shaking observed by Ayotte). There is no evidence about how Lavallee felt or what his thoughts were at that time;
(e) The evidence is that, while being booked in on June 9, 2009, Lavallee did not provide any indication that he had any mental illness or disability, or that he was suffering from withdrawal or that he required medication, when being specifically screened for his physical and mental health out of concern for the safety of people in custody;
(f) During the interview, there was nothing about Lavallee’s demeanour which should have resulted in Ramsay stopping the interview and making further inquiries about Lavallee’s medication or mental state in relation to his ability to choose to speak. The Seroquel was discussed in the context of medication he received a year prior in jail. Ramsay did not understand that Lavallee had been taken to hospital in Québec and had received medication, and Lavallee made no request for Seroquel.
87I received no evidence from Lavallee of what mental state he was in at any time from June 4, 2009, onward, to support the proposition that the denial of his medication, or the failure of police to make inquiries about his mental health and need for medication, is linked in any way to the evidence he wishes to exclude on the basis of a breach of his s. 7 right to silence.
The Suicide Attempt:
88Likewise, on the record before me, Lavallee has not established any causal or temporal link between (a) the conduct or inaction of police, up to his leaving G.S.P.S. Headquarters, on June 9, 2009, (b) his suicide attempt on June 11, 2009, and, (c) the evidence that he seeks to exclude.
89The Québec police had no information suggesting that Lavallee was a suicide risk. The information that O’Malley conveyed to Waugh about Lavallee having contemplated suicide with G.H., prior to turning himself in, resulted in Lavallee being put in “baby dolls”. The decision to put him in “baby dolls” was not as a result of anything that Lavallee said or did.
90The fact that Lavallee had a history of suicidal ideation, dating back to 2004 was not known to anyone who had contact with Lavallee between June 4 and June 11, 2009.
91The police actions were appropriate and in compliance with accepted procedures. The police could not know Lavallee’s state of mind, or that he was contemplating suicide at the time of his transport from Québec, his booking in, or during the interview with Ramsay. Indeed, it appears from the evidence, that if Lavallee had suicidal intentions, he made efforts to not disclose those intentions to anyone, including the prison psychiatrist on June 11, 2009.
92There is no evidence to link Lavallee’s suicide attempt on June 11, 2009, with his state of mind on June 8 and 9 as evidenced by his behaviour, and anything police did or did not do in response to that behaviour, on June 8 and 9, 2009. There is no evidence that Lavallee’s safety or physical and mental health were in jeopardy for any reason, on June 8 and 9, 2009.
93There is neither the causal nor the temporal connection required between the alleged breach and the evidence in question.
94This leads me to the conclusion that the evidence sought to be excluded was not obtained in a manner that breached s. 7.
95I will nonetheless proceed with the Grant analysis, in the event that my conclusion is incorrect.
(c) Section 24(2):
96Evidence will be excluded under s. 24(2) of the Charter “if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
97These circumstances include the seriousness of the breach, the impact of the breach on the accused and society’s interest in an adjudication of the matter on its merits.
Seriousness of the Breach:
98Police did not deliberately withhold Lavallee’s medication with a view to obtaining a confession from him on June 9, 2009. There was no reckless disregard for Lavallee’s safety, health, or well-being, by any officer who came into contact with Lavallee, including the undercover officers. There is no state conduct that the court should disassociate itself from.
99Lavallee was fully apprised of his rights, throughout his contact with the O.P.P. Lavallee was properly screened for the purpose of assessing his health and well-being on arrival at Sudbury and steps were taken to reduce the risk to his safety when the information about the earlier suicidal ideation became known.
100If Lavallee’s s. 7 rights were breached, the breach was not serious.
Impact of the Breach on the Accused:
101Generally, when statements of accused persons are unconstitutionally obtained, the degree of intrusion is high, and such statements are presumptively inadmissible.
102However, even if police were negligent, or somehow failed in their duty to ensure Lavallee’s life or security, such failure had little impact on Lavallee’s ability to choose to speak or not to speak.
Society’s Interest in an Adjudication on the Merits:
103Again, even if there was a breach of s. 7, the breach did not compel Lavallee to speak, either to the undercover officers, or to Ramsay. That being the case, there is no concern about the reliability of the evidence.
104On all the circumstances of this case, including the lack of bad faith, or any intentional or wilful disregard for Lavallee, the non-oppressive atmosphere in which the statements were made, and the extreme seriousness of the charge, the admission of the evidence would not bring the administration of justice into disrepute.
105For all of the above reasons, the motion to exclude the statements of the accused, made on June 8 and June 9, 2009, is denied.
Madam Justice L. L. Gauthier
Released: May 7, 2012
COURT FILE NO.: 7/10
DATE: 2012-05-07
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KRISTOPHER LAVALLEE
RULING ON Voluntariness issue and sS. 7 and 24 (2) of the charter of rights
GAUTHIER, J.
Released: May 7, 2012