ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: J-05-62
DATE: 2012-06-15

B E T W E E N:

HER MAJESTY THE QUEEN

Todd Norman and Brent Bentham, for Her Majesty the Queen

• and -

MARIA FIGLIOLA

Mr. Michael Lacey and Mr. Brad Greenshields, Counsel for the Defendant

HEARD: April 23-27 and May 1-2, 2012

PUBLICATION BAN

RULING AS TO VOLUNTARINESS OF A STATEMENT

VOIR DIRE #1

WHITTEN J.

[ 1 ] Maria Figliola is charged with the 1 st degree murder of her husband, Frank Figliola, on or about the 6 th day of August 2001. The Crown alleges that Mrs. Figliola employed Daniel DiTripani to kill her husband, either to profit from his demise or to gain her freedom to continue her relationship with Geoffrey Gonsalves.

[ 2 ] Mr. Figliola was beaten to death in the early hours of August 7 th , 2001. His body was discovered by a passerby near a pathway in the vicinity of Millen Road in Stoney Creek.

[ 3 ] The Crown seeks to establish beyond a reasonable doubt that statements made by Mrs. Figliola to investigating officers beyond August 7 th and into September 2001 were voluntarily made. In opposition, the defence asserts that, given the fact that Mrs. Figliola was considered the only suspect at this time, she should have been cautioned. Consequently, it is asserted Mrs. Figliola had no appreciation of her right to silence and the potential to self incrimination. This lack of a caution goes to the root of the voluntariness of her statements.

[ 4 ] Furthermore, the defence asserts that reliance on officer notes in lieu of an actual recording on occasion renders the Crown burden impossible to meet given the inherent lack of reliability of such evidence.

ISSUES

[ 5 ] The initial statements of August 7 th , 2001, to the police by Mrs. Figliola as to the disappearance of her husband are admitted to be voluntary. Those statements and those in the following days were consistent with a grieving spouse. However, within days, investigating officers following up on what she had said in their interaction discovered inconsistencies which caused them to consider Mrs. Figliola a suspect. That determination was relatively fresh, her liberty was not impacted upon, but she was not cautioned as the investigation proceeded with that attention upon her. It is that absence of a caution, and in one instance her being lied to about her status as a suspect that raises the issue of the voluntariness as to her statements from August 9 th , 2001, onwards.

VOLUNTARINESS OF A STATEMENT

[ 6 ] In R. v. Oickle (2000) 2. S.C.R. 3 the Supreme Court of Canada unequivocally demonstrated that the Confessions Rule almost 20 years after the advent of the Charter of Rights and Freedoms , was far more than the classical concerns for threats, promises and inducements as established in Ibrahim v. The King (1914) A.C., p. 599. The “classical concerns” could be addressed and a statement could still be considered involuntary given a contemporary focus on the mental element in the decision making of the declarant. This focus has been referred to by McLaughlin J. as an expression of the societal need for fairness, manifested in the past by the “operating mind doctrine” (Ibid at para. 26).

[ 7 ] This new focus was not contingent upon whether the declarant was detained or arrested (Ibid para. 30).

[ 8 ] In defining the confession rule, the Supreme Court recognized two goals: 1) the protection of the rights of the individual and 2) the recognition of the societal need to investigate and solve crimes (Ibid para. 33). The tension between these goals has directed the debate. On one side there is the recognition of the right to silence, which essentially means that an individual is not obliged to speak to the police. On the other side, the police who are rarely witnesses to crimes have to inquire or ask questions to discover how a crime came about.

[ 9 ] There is no stock individual. We are all of varying degrees of sensitivity, intelligence, confidence and wisdom. From time to time our judgment is impaired by outside sources such as fear and anxiety in a situation we find ourselves in. Justice Iacobucci spoke of the need to be sensitive to the particularities of the individual suspect, for example, whether or not the individual was particularly compliant. His Honour observed that recorded statements were of assistance to a trier in assessing the nature of the individual. Reference was made to the explanation of Justice Sopinka in R. v. Whittle (1994) 92 C.C.C. 2d at p. 11, that the requirement of an “operating mind” “does not imply a higher degree of awareness than knowledge of 1) what the accused is saying and 2) that he is saying it to police officers who can use it to his detriment” ( R. v. Oickle para. 63).

[ 10 ] To Justice Sopinka, his explanation implied that the individual had an awareness of what was at stake in speaking to a person of authority ( R. v Whittle p. 12). Sopinka J. had stated that these views were consistent with the warning generated by the English Judges Rules to the effect “you may remain silent but anything you say will be taken down in writing and may be given in evidence”. Justice Sopinka expanded upon this base requirement, “the operating mind test therefore requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused”. It goes no further and no inquiry is necessary at whether the accused is capable of making a good or wise choice or one that is his or her interests” ( R. v Whittle p. 14).

[ 11 ] In summary, Justice Iacobucci viewed the operating mind doctrine as a manifestation of a broader view of voluntariness in which the protection of the individual’s rights and fairness in the criminal process is respected.

[ 12 ] At the same time, while Justice Iacobucci sought fairness in the process he recognized that the investigation of crime could not always be played by the rules of the Marquess of Queensbury. There may be occasions as Justice Lamer had observed in R. v. Rothman (1981) 59 C.C.C. 2d at p. 30 and 121 D.L.R. (3d) p. 578, that the police had resorted to trickery to obtain a confession. The limit of such behaviour is that which is so appalling that it would shock the community. The recognition of a limit is necessary to maintain the integrity of the criminal justice system. (R. v. Oickle para 65).

[ 13 ] Therefore for reasons beyond the classical concerns, a confession could be excluded as involuntary as not being a product of the operating mind of the individual or as a consequence of being a product of sanctionable police behaviour.

[ 14 ] R. v. Singh (2007) S.C.C. 48 further explains the rationale for the expanded confessions rule. Justice Charron stated that the confessions rule and the constitutional right to silence are manifestations of the principle against self incrimination (para 21). Her Honour’s principle inquiry was with respect to the right to silence.

[ 15 ] As described simply before, the “right” is that absent statutory illegal compulsion “no one is obliged to provide information to the police or respond to questioning” (para 27). By the same token, this is not a right to not be spoken to by the authorities. The reality is that questioning as part of an investigation is part of the police mandate.

[ 16 ] It is important to keep in mind that in Singh the individual was detained, therefore Justice Charron would discuss the possibility of a caution in the following fashion: “This component of the voluntariness rule is reflected in the usual police caution given to a suspect and the importance attached to the presence of a caution as a factor in determining the voluntariness of a statement made by a person under arrest or detention . Therefore the police caution in plain language informs the suspect of his right to remain silent” (para 31 emphasis added).

[ 17 ] The necessity for a caution is triggered by the lack of autonomy of the individual which arises when the police exercise control over his or her liberty. As is referenced in cases such as R. v. Therens (1985) 1. S.C.R. 613 S.C.C. Control over an individual whether “by direction or physical control has a psychological impact”. In essence, the individual has significantly diminished control over his or her environment and is particularly vulnerable. In fact, this loss of personal freedom is the yardstick which Justice Charron writes about in citing an excerpt from Rennée Marin’s text, “Admissibility of Statements” 9 th edition. The yardstick merits that “a warning should be given when there are reasonable grounds to suspect that the person interviewed has committed an offence” (para 32).

[ 18 ] This caution, Her Honour stated, would be well advised for the police to give even if the individual has not been formally arrested.

[ 19 ] Justice Charron identified two themes arising out of the confessions rule jurisprudence : 1) the exercise of free will is in the individual’s choosing whether to speak to the police or remain silent and 2) the concern that the receipt of the statement in question would not result neither in unfairness or bring the administration of justice into disrepute. These are the same concerns that Justice Iacobucci spoke of in R. v. Oickle , the freedom of the individual as to how to interact with the police vs. the investigative behaviour of the police not being contrary to fairness expected within the system. Again, the focus on the police action is essentially objective with an eye to the characteristics and state of the individual they are dealing with. The focus on the individual invariably will have a subjective element.

[ 20 ] By the end of the day, the goal is to only have a voluntary statement which respects the charter right to silence.

[ 21 ] It is trite to say that whether a person is a suspect or not and the necessity for a police caution, (leaving aside the actual wording for the moment) are key phenomena in the debate about how the individual’s right to silence is respected in the context of a police investigation. Both phenomena have presented challenges in defining and no doubt will continue to do so as they are intertwined in the interaction between the individual and the police.

[ 22 ] Imagine for a moment in a very general sense the commencement of an investigation. The police questioning could be quite general at the start but with the receipt of information, the inquiry becomes more specific. The individuals who have contact with the police at the outset may present a broad range. The range may be from direct or indirect witnesses. Some persons may actually be principals, parties or accessories to the actual crime. The realization of the individual’s worth as a witness or as a participant in the crime itself may cause the police to detain the person as “a suspect” or a “person of interest”. It is a given that as soon as there is the specter of detention or significant control over the individual, the need for a caution as to the right to remain silent and the possibility of incrimination arises. Having said that, in any situation there will be a progression. These characterizations of an individual being questioned by the police do not necessarily arise instantaneously.

[ 23 ] There have been several references to the police caution and the English judges’ rules. Lawrence J. set these out in R. v. Voisin (1918) 13 Criminal Reports p. 89 (as quoted by Justice Beveridge in R. v. K.F. (2010) N.S.C.A. p. 45) 1) “when a police officer is endeavoring to discover the author of a crime, there is no objection to him putting questions in respect thereof to any person or persons whether suspected or not from whom he thinks that useful information can be obtained, 2) whenever a police officer has made up his mind to charge a person with a crime he should first caution such a person before asking any questions or further question as the case may be, 3) persons in custody should not be questioned without the usual caution being first administered 4) if the prisoner wishes to volunteer any statement, the usual caution should be administered. It is desirable that the last two words (against you) of such a caution should be admitted and that the caution should end with the words “be given in evidence”.”

[ 24 ] The history of the rules is set out by The Honourable F. Kaufman in the Admissibility of Confessions 3 rd Edition Toronto Carswell 1979. In 1964 there was a revision, one of the five principles for the rules stated “that it is a fundamental condition of the admissibility in evidence against any person equally of an oral answer given by that person to a question put by a police officer and of any statement made by that person that it shall have been made voluntarily, in the sense that it has not be obtained from him by fear, prejudice or hope of advantage, exercised or held off by a person in authority or by oppression”.

[ 25 ] Obviously, this commentary reflects the classical concerns of Ibrahim but it is clearly not confined to a suspect or detainee but encompasses anyone.

[ 26 ] “ Rule II ” stated that where a police officer has evidence of affording reasonable grounds to suspect a person has committed an offence, he shall caution that person before putting any question or further questions to him. The caution was directed to be “you are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence” ( R v. K.F. para 24).

[ 27 ] Apparently the Supreme Court of Canada in Gach v. The King (1943) , S.C.R. 250 initially held that the presence of a caution was a precondition to admissibility. That position changed in 1949 with R. v. Boudreau (1949) , S.C.R. 262 in which Justice Kerwin stated that the fundamental question was whether or not the confession was voluntary. The presence or absence of a warning was not decisive as to admissibility. A court had to take a contextual approach, consider all the surrounding circumstances with a view to determining whether the admission was voluntary one. The presence or absence of a caution was a factor and possibly an important one in the determination. This has been the position of the Ontario Court of Appeal in R. v. Esposito (1985) O.CA. 53 O.R. 2 nd series p. 356. It is now the position of the Supreme Court of Canada in R. v. Singh (at para. 31).

[ 28 ] The presiding judge is to take a contextual approach keeping in mind the two goals that Justice Iacobucci and Justice Charron spoke of; the rights of the individual to meaningfully and freely decide to whether or not to speak to the police and to the societal need and mandate of the police to investigate and solve crimes. The latter is to be exercised with an eye to the realities of criminal activity but in a fashion that does not attract concern about the fairness of the administration of justice.

[ 29 ] Therefore on the side of the individual declarant a jurist considers as did Justice Clarke in R. v. Hamadeh (2011) 2011 ONSC 1241 , O.J. No. 819, a) the degree of autonomy of the individual and b) the personal characteristics of the declarant. As Justice Sopinka questioned in R. v. Whittle and Justice Iacobucci in R. v. Oickle respectively, what was the attitude the individual demonstrated in any recordings? Was the individual “an irresistible confessor”, as Justice Whalen observed in R. v. Duguay (1996) O. J. No. 1334 . With personal characteristics there are some in particular which come into play – was the individual confident, did they understand the situation, were their answers appropriate to questions posed, did they volunteer information above and beyond what was requested?

[ 30 ] It is also possible that the interaction between the individual and the police reveals an agenda on the part of the declarant. Justice Clarke notes in R. v. Hamadeh that the accused appeared to want to influence the course of the investigation. He did so by suggesting possible persons of interest. It is not beyond possibility that some interviewees may be quite shrewd and seek to deflect attention from themselves or seek to curry favour with the police by “cooperating”. An interviewee may lie to the police.

[ 31 ] As a jurist moves to consider the police approach, consideration must be given to what was actually communicated by the police to the individual. In particular, were there any indications or “red flags” that the individual did not understand or process what was said to them. Was there any clarification sought by the individual?

[ 32 ] On the police side of the debate, as reference to above, there is an evolving investigation in which, as more information is obtained, the status of those interviewed may change. There’s no debate that as soon as a person is detained or arrested a caution is required to be given. To some extent that is subsumed in the fact of the giving of the right to counsel. The essential question is at what point between the initial encounter of an individual and the extreme situation in which the person is detained or arrested, is a caution to be given by the police. Having posited this range of status, it is recognized that an individual could not be detained, but could be in circumstances functionally equivalent to detention needing protection from state powers ( R. v. Osmar , (2007) 2007 ONCA 50 , 84 O.R. 3 rd 321 paras. 42-45 ).

[ 33 ] The danger of a low threshold of requiring a caution or too expansive a definition of suspect is that the investigation could become quickly compromised (Poupore J. in R. v. Carol (2009) 71 C.R. 6 at 169) . As was noted above, the latest version of the Judge’s Rule II speaks of a suspect as the person suspected to have committed an offence.

[ 34 ] Justice Dambrot in R. v. A.D. (2003) O.J. No. 4901 at para. 75 stated that:

“The trigger for an expectation that the police will give a person being questioned a caution respecting a right to silence must be less than reasonable grounds to believe that the person committed an offence, but surely be more than speculative knowledge that other persons suspect the person or even reliable information that a person’s background relationship to the victim or the opportunity to commit the offence may warrant further inquiry.”

[ 35 ] The Ontario Major Case Management Manual (produced in January 2000) states the following:

“Suspect: A person an investigator reasonably believes may possess a degree of culpability in the commission of the criminal offence being investigated and there is some incriminating information linking the person to the crime (refer to “Information Management” on pg. 55). This person is not a Person of Interest.

(24) During an interview of a witness or a Person of Interest (refer to “Persons of Interest” on pg. 22) becomes a suspect, a caution shall be administered (refer to “Information Management” on pg. 55).

(25) When the subject of an interview is detained or could be subjectively believed he or she is detained, the subject should be advised of his right to counsel.”

[ 36 ] As previously mentioned, the conduct of the police is viewed objectively. The jurist cannot take police evidence as to the shift from the person of interest to suspect as determinative. The characterization has to be objectively reasonable and an officer cannot avoid the giving of a caution based on semantics ( R. v. J.R . (2003) O.J. No. 718 , O’Connor J., R. v. Morrison (2000) O.J. No. 5733 para. 50 , R. v. Warrell (2002) O.J. No. 271, (Watt J. as he then was) .

[ 37 ] The characterization of the person being interviewed is a focus on what the police reasonably believe during their investigation. But, as stated above, when one considers the individual, the contextual approach incorporates an analysis of what the police communicated to the individual. What is communicated informs the individual as to the circumstances he or she is in, presumably will influence their decision as to whether or not to speak to the police, and the attendant risks of so doing.

[ 38 ] Justice Campbell in R. v. Laidley (2001) , O.J. No. 6281 considered whether or not the person in authority (in that case members of a hospital child abuse team) effectively communicated 1) the nature and purpose of their interview and 2) the consequences of the information to be obtained. This second element goes as to the possibility of risk appreciation by the interviewee.

[ 39 ] Did the police in less formalistic communications describe the option to speak or not to speak? Was the individual told that a lie, in particular, along with what else was said could be used in evidence to their detriment? In other words, were the elements of the police caution communicated one way or the other? Was there repetition of these elements? Obviously if the elements are repeated, the reasonableness of an individual pleading a lack of understanding would be devalued. Did what was said by the police “bring it home” to the individual that he or she did not have to speak to the police and there were potential adverse consequences to so doing? (R . v. E. B. (2011) , O.J. No. 1042 (ONCA))

[ 40 ] In this focus on what police communicated, it cannot be ignored how they communicated. Were the questions of a general or specific nature? Did the police act in a coercive or intimidating fashion?

[ 41 ] Referring to the two basic goals or themes emphasized by Justices Iacabucci and Charron, the analysis of voluntariness of a statement assuming the classical concerns are satisfied is invariably particular. The jurist considers the individual interviewee, the evolution of the investigation and the nature of the interaction between police and the individual.

FACTS

August 7 th , 2001

[ 42 ] In the early morning hours of August 7 th , 2001, Frank Figliola’s body was discovered by a passerby near a footpath from Millen Road. There was trauma to the back of the head. His vehicle was located nearby. By 8:30 a.m. the police command vans were set up nearby. The investigation was organized with Staff Sergeant Harrab as the case manager, Sergeant Wayne Bennett was the primary investigator who would report directly to Officer Harrab. Sergeant Bennett would be responsible for resource allocation and scheduling. Sergeant Wayne Beech was the file coordinator responsible for the thoroughness of documents and notations made. Sergeant Russell Gordon was the field investigator and would report to Wayne Bennett. Officer Gordon along with Officer Bennett attended at the command van at 8:30 a.m.

[Text continues exactly as in the source.]

WHITTEN J.

Released: June 15, 2012

COURT FILE NO.: J-05-62
DATE: 2012-06-15

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – MARIA FIGLIOLA REASONS FOR RULING PUBLICATION BAN WHITTEN J. ACRW // dm

Released: June 15, 2012