ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: J-05-62
DATE: 2012-06-22

B E T W E E N:

HER MAJESTY THE QUEEN

Mr. Todd Norman and Mr. Brent Bentham, for Her Majesty the Queen

• and -

MARIA FIGLIOLA

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

HEARD: June 19, 2012

PUBLICATION BAN

VOIR DIRE # 2

RULING AS TO ADMISSIBILITY OF CONTENTS OF A GUN LOCKER

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 ] As the facts set out in paragraphs 42 through to 64 of a Ruling as to Voluntariness of a Statement released June 15, 2012 revealed, Mrs. Figliola in an interview with Officers Bennett and Gordon on August 7, 2001, told of a locked box in the basement of the home maintained by her husband to her exclusion. Given her revelation that her husband had gambling issues, the officers also expressed an interest in a book of telephone numbers recorded by Mr. Figliola. The book was obtained that evening when the officers attended at the Figliola residence.

[ 4 ] On that occasion, Mrs. Figliola willingly guided the officers to the basement area frequented by her husband. In a separate workshop area was a locked gun locker.

[ 5 ] It was arranged that the officers would re-attend the residence on August 8, 2001 with a locksmith to gain entry to the locked gun locker. The officers did attend with a SOCO officer who photographed and itemized the contents of the locker. The officers with Mrs. Figliola’s consent removed a journal maintained by her husband and a cassette recording made of a conversation between the Figliola’s within the week before the demise of Mr. Figliola.

ISSUE

[ 6 ] The defence challenges the admissibility Charter wise of the two items removed from the locked gun locker on the basis that they were taken in violation of the s.8 Charter rights of Mrs. Figliola in that she did not properly consent to their removal and that accordingly, the items should be excluded pursuant to s.24.2 of the Charter.

[ 7 ] This issue is a Charter specific issue as the actual admissibility of the recorded conversation may be challenged at trial on the basis that this admission into evidence would represent a breach of the “marital privilege”. That issue is not being determined at this juncture.

[ 8 ] This Court indicated on a preliminary basis that it would likely find that s. 8 had been violated and would then move to consider the exclusion of evidence pursuant to s. 24.2 of the Charter. This ruling represents the particular analysis engaged in to make the preliminary finding and the consequential consideration pursuant to s.24.2.

THE FACTUAL BASIS FOR THE APPLICATION

[ 9 ] As referenced to above, the evidentiary basis before the Court in deciding upon the voluntariness of statements made by Mrs. Figliola in 2001 is to be considered in this application.

[ 10 ] In addition, the Court is to consider excerpts of evidence at a previous trial of Rosario Figliola, mother of Mr. Figliola (Exhibit #3) and that of his sister Joanne D’Andrea (Exhibit #2), the contents of the journal created by Mr. Figliola and the transcript of the cassette recording (Exhibits #1 and #7) respectively at voir dire #1 with respect to the voluntariness.

[ 11 ] It is acknowledged that no one had any idea of what was in the gun locker before it was opened. The officers were hopeful that it would yield information as to the gambling issues that the deceased had.

[ 12 ] It is also a fact that Mrs. Figliola was not given a copy of either item before she consented to their removal. Her consent throughout was verbal. At the time of the locker entry the police had no idea of her being anything other than the grieving widow who was the last person to see her husband alive.

APPLICABLE LAW AND ANALYSIS

[ 13 ] Section 8 states “Everyone has the right to be secure against unreasonable search and seizure”.

[ 14 ] A search is considered reasonable pursuant to the right if: (1) the search is authorized by law, (2) the authorizing law is reasonable, and (3) the manner in which the search is carried out is reasonable. Ref: R. v. Collins, (1987) , 33 C.C.C. (3d) 1 at 14 (S.C.C.) and R v. Garofoli (1991) , 60 C.C.C. (3d) 161 at 187 (S.C.C.).

[ 15 ] A search is presumptively unreasonable if there was no prior authorization. However, this presumption can be rebutted if it is demonstrated that the search was conducted with a valid consent. Ref: Hunter v. Southam, (1984) , 14 C.C.C. at 97 (S.C.C.) at 109 and 110 and R. v. Haas 2005 , [2005] O.J. No. 3160 (O.C.A.).

[ 16 ] The seminal judgment on consent is that of Justice Doherty’s on behalf of the panel in R. v. Wills 1992 , [1992] O.J. No. 294. The issue was whether the young Mr. Wills had effectively consented to the taking of a breathalyzer test. It was conceded that there was no statutory obligation for him to do so as he had received a “warn” on an ALERT test. He was convinced to do so by an officer who was a friend of his father and his father, both of whom saw this an opportunity for Mr. Wills to address any civil liability that would invariably flow as a consequence of a mortality in a motor vehicle accident in which he was a driver. The officer also realized that the results of such a test would aid in the criminal investigation.

[ 17 ] Justice Doherty emphasized that cooperation by an individual must be distinguished from acquiescence or a compliance with a police request. It was important to distinguish the dynamics of a police officer with all of his or her attendant authority, making a request from a request made by another private individual. This observation is consistent with similar concerns expressed in R. v. Therens (1985) , 1 S.C.R. 613 (S.C.C.). Justice Doherty emphasized that care must be taken to ensure that a consent was real “(o)therwise consent becomes a euphemism for failure to object or resist, and an inducement to the police to circumvent established limitations on their investigative powers by reliance on uninformed and sometimes situationally compelled acquiescence in or compliance with police requests”. (Ibid. para. 44-46). This concern demonstrates a respect for the autonomy of the individual.

[ 18 ] His Honour established the following elements that the Crown must establish on the balance of probabilities for a court to find a valid consent: “(i) there was a consent, express or implied, (ii) the giver of the consent had the authority to give the consent in question, (iii) the consent was voluntary in the sense that that word is used in Goldman , (1980) , 1 S.C.R. 976, 51 C.C.C. (2d) 1, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested, (iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent, (v) the giver of the consent was aware of his or her right to refuse to commit the police the engage in the conduct requested, and (vi) the giver of the consent was aware of the potential consequences of giving consent” (ref. para. 69). It is the last two elements that are problematic for the Crown herein.

[ 19 ] Justice Doherty at par. 71 also noted for an individual to realize the potential consequences there must be some appreciation on their part of what role, or what was his or her position in the investigation at that juncture (ref. para. 71).

[ 20 ] It is generally acknowledged that at the time of the locker search, Mrs. Figliola was essentially a witness to her husband’s departure the evening of August 6, 2001 and the source of two working hypothesis for the course of the investigation. Those hypotheses were 1) the gambling issues of her husband and 2) the mysterious male who came to her door seeking her husband shortly after his departure.

[ 21 ] The crown has asserted that because the police had sought her permission; to enter the house, go to the basement, check out the area that her husband frequented, and to come back with a locksmith to open the locked gun locker, that she would realize that she could refuse them with respect to a particular request. That implication fails to address what Justice Doherty noted with respect to the authoritative nature of police requests. It is entirely possible that Mrs. Figliola would simply consider the officer’s request for permission a matter of politeness. Not knowing that she had a right of refusal would possibly leave her with the impression that a refusal would not be construed as a matter of exercising her right but rather evidence of her being difficult. There is no clear evidence that Mrs. Figliola was aware of her right to refuse the police entry to and a search of her residence, an inherently private space.

[ 22 ] Like Mr. Wills and the invitation to take the breathalyzer test, Mrs. Figliola would have no idea of an outcome that could potentially be adverse to her interest. All she knew was that this was an area that her husband did not want her to have access to. If she had known; that her husband was maintaining a diary as to her absences to be “working with a friend”, that he suspected her infidelity, that he had recorded a conversation in which the couple were contemplating the fiscal fall out of a separation, and that according to his sister Mrs. D’Andrea, he wanted to record a session with his wife in the absence of the children, would she have consented blindly to the release of such intimate matters? She had no opportunity to review the actual contents of the items before “consenting”. The consequences were profound. These items propelled Mrs. Figliola to the suspect category. Mind you, no one knew that before the opening but that does not change the fact that Mrs. Figliola was totally unaware of the potential consequences of what she had consented to.

[ 23 ] As noted by the defence, the police actually had a form at the time which they were prepared to employ when they attended at Compusmart August 10, 2001 to seize telephone records. The form sets out how the individual realizes that there is a right to instruct and retain counsel, that there is a right to consult counsel, that there is no obligation to comply with a request, and that any consent can be withdrawn at any time. The individual is to sign the form as to their freely consented to the police having whatever sought and that whatever is taken may be used in evidence. Obviously the officers did not think that such formalities were necessary in the circumstances of this case.

SECTION 24.2 ANALYSIS

[ 24 ] In R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 (S.C.C.) Chief Justice McLachlin and Justice Charron wrote for the majority.

[ 25 ] The Justices described the test of exclusion in s. 24(2) of what would bring the administration of justice into disrepute having regard to all the circumstances, as “broad and imprecise”. The court went on to say how unworkable and problematic the three part test established in R. v. Collins , [1987] 1 S.C.R. 205 and R. v. Stillman [1997] 1. S.C. R. 607 had become.

[ 26 ] The purpose of s. 24(2) was to maintain the good repute of the administration of justice [para. 67]. The objective concern was whether the overall repute would be adversely affected. The focus of s. 24(2) was not only long term but also prospective. “The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition, and seeks to ensure, that evidence obtained through that breach does not do further damage to the repute of the justice system.” [para. 69] “The focus of s. 24(2) is societal.” The section is not there to punish the police or provide compensation to an accused, but to address societal concerns.

[ 27 ] Henceforth, there was to be a threefold inquiry in which a jurist, faced with an application for exclusion of evidence, “must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter infringing state conduct (admission may send the message that the judicial system condones serious state misconduct), (2) the impact of the breach on the Charter – protected interests of the accused (admission may send the message that individual rights count for very little), and (3) society’s interest in the adjudication of the case on its merits.” [para. 71]

[ 28 ] The Justices expanded upon these factors.

Seriousness of the Charter Breach

[ 29 ] Under this heading, the court was concerned with the message sent by the fact of a Charter breach. Was the breach a possible comment as to how state institutions followed the law? Was there need for the court (one aspect of the administration of justice) to disassociate itself from the conduct? Obviously, the more severe, the more deliberate the conduct, the greater the need for this disassociation. [para. 72]

[ 30 ] This is not a question of punishing the police. The concern is that public confidence in the system be preserved.

[ 31 ] There is going to be a spectrum of seriousness in terms of breaches. At one end, there will be the minor and inadvertent breaches which would have minimal effect on public confidence. At the other extreme, there would be the willful/reckless disregard for rights with a significant negative aspect on the pertinent Charter rights. [para. 74]

[ 32 ] It may be that there are extenuating circumstances which “attenuate” the seriousness of the police conduct; for example, the need to preserve evidence. Yet at the same time, ignorance or willful blindness of Charter standards is not to be rewarded or excused in the name of good faith. With flagrant and willful abuse of standards, the court may have to dissociate itself. Such conduct tends to support exclusion of evidence. The court must be vigilant with respect to “ Charter infringing behaviour” which is “part of a pattern of abuse.” [para. 75]

Impact on Charter Protected Interest of the Accused

[ 33 ] The concern at this point is “what does the breach say about the legitimacy of the right?” This will depend on the particular right at issue. If the breach of a right is particularly egregious, to allow the breach, in the sense of not responding to it diminishes the significance or validity of the right. In other words, it would not be worth much. [para. 77]

Society’s Interest in an Adjudication on the Merits

[ 34 ] This line of inquiry “asks whether the truth-seeking function of the criminal process would be better served by admission of the evidence or by its exclusion.” There is a social need to have law breakers brought to trial. [para. 79]

[ 35 ] In this aspect of the analysis, the reliability of the evidence obtained as a consequence of a breach is significant. If the breach undermines or causes one to question the reliability of the evidence, the tendency would be to exclude such evidence as it neither serves the interest of the individual accused nor society. “Conversely, exclusion of relevant evidence and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from a public perspective, thus bringing the administration of justice into disrepute.”[para. 81].

[ 36 ] If evidence derived from a breach facilitates the “discovery of truth and adjudication of the case on its merits” that must be weighed against those factors indicating exclusion. The court must ask, “Does vindication of the specific Charter violation through the exclusion of evidence extract too great a toll on the truth-seeking goal of the criminal trial.” [para. 82]

[ 37 ] Another factor under this line of inquiry is the importance of the evidence to the case for the prosecution. Would exclusion effectively “gut” that case? [para. 83]

[ 38 ] The seriousness of the offence can cut both ways. Exclusion of evidence may have an immediate effect; namely the undermining of public confidence. In addition, what effect would there be with respect to the long term repute of the system (which is the focus of the s. 24(2) inquiry?) “The short term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer term repute of the administration of justice.” [para. 84]

[ 39 ] The section 24(2) judge considers the three lines of inquiry described above, and decides on balance whether, “the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute.” [para. 85]

[ 40 ] The application of the revised analysis was considered in relation to specific types of evidence. One of the types of evidence germane to this was “ (c) Non-Bodily Physical Evidence” .

[ 41 ] The court explained that the determination of the seriousness of the Charter – infringing conduct would be a fact-specific determination.

[ 42 ] The Charter breach was most associated with this type of evidence is a section 8 violation. Privacy is the principal interest at stake. Prevailing jurisprudence had established a range of situations or locations in which privacy could be expected. Privacy relative to the dwelling house (possibly a reflection or belief “that a person’s home is his or her castle”) is considered greater than that of one’s automobile. This paramountcy of the privacy of the home is also recognized in R. v. Blake 2010 ONCA 1 , [2010] O.J. No. 48 at para. 28 .

[ 43 ] The third consideration like the other two is fact specific. However, in this consideration reliability is not associated with the actual Charter breach as say would be in a statement of an accused acquired during a contravention of his Charter rights. Obviously with such an example, there is a connection between what is the product or “thing” sought to be admitted and the breach, whether or not it be rights to counsel or as it was described in the previous ruling with respect to voluntariness in the Charter sense. There is not only a breach but also a question about how reliable the product would be. With inanimate objects in particular, their reliability is intrinsic.

[ 44 ] Even though the analysis in R. v. Collins [1987] 1 S.C.R. 205 and R. v. Stillman [1997] 1. S.C. R. 607 had been revisited; the court has not jettisoned an assessment of the reliability of evidence which exists independent of a breach.

Seriousness of the Charter Breach in this matter

[ 45 ] As noted above, it is well accepted that an individual enjoys a high degree of privacy in his or her home. Having said that, in terms of assessing the egregiousness (if any) of police behaviour, the courts have viewed the interaction between police and accused to see if in all the circumstances, the police could reasonably believe that the individual consented to the search or that the police acted in good faith. Ref: R. v. Wills 1992 , [1992] O.J. No. 294, para. 108 and R. v. Lewis (1998) , OJ. No. 376 para. 12 . This assessment has to be objective “what would the reasonable dispassionate and fully informed member of the public think” (as Justice Doherty stated in R. v. Wills (ibid para. 110 ).

[ 46 ] The intrusion in this case took place within 48 hours of the discovery of Frank Figliola’s body. Before that discovery, Mrs. Figliola had called the police reporting as to her fears as to the absence of her husband, who had gone out the evening before on an apparent quick task. She called the police again early in the morning. As mentioned previously in the ruling with respect to the voluntariness of her statement ( voir dire #1), what she reported to the police established two themes; (1) her husband was a gambler and (2) a mysterious male had come to their house shortly after the husband’s departure.

[ 47 ] These two themes present as workable hypotheses for the investigators. Officers Gordon and Bennett interviewed Mrs. Figliola at noon on August 7, 2001. Later that day, having been paged to her residence by Mrs. Figliola’s brother they received the telephone book of her husband. Additionally, they were allowed into the house by Mrs. Figliola in response to a question as to were there any areas exclusive to her husband. The officers were shown the basement workshop area and the locked gun locker.

[ 48 ] In a way, Mrs. Figliola as the source of the two themes, allows the officers to develop the themes by providing, the telephone book and leading the officers to her husband’s private area in the basement. Although it was found above, these concessions could not found an implied valid consent in law, they would certainly lead the officers to believe they had a cooperative source of information, someone who ostensibly wanted them to solve the murder, someone with a vested interest, a grieving widow.

[ 49 ] The officers advised Mrs. Figliola that evening August 7, 2001 that they would be back the next day with a locksmith. That announcement would have given her the opportunity to think about or obtain independent legal advice or advice generally as to whether or not this was in best interest. By her ease in allowing the entry the next day with the locksmith, given the passage of time, the police would still be of the mindset that this is part of the cooperation they had enjoyed to this time and beyond. There was nothing about the manner and seizure which was either unpredictable or obtrusive.

[ 50 ] Therefore although it was found by the court that in law there was no consent, the police were not acting unreasonably in their belief that they had the go ahead to do what they did, open up the locker and take the cassette and notebook away. Up until after that time, the police had not considered Mrs. Figliola a suspect, any more so than was anyone else. They were simply following up on the two leads she had provided.

[ 51 ] There was a breach of section 8, but the good faith of the police did not demonstrate a reckless disregard for the rights of Mrs. Figliola. Their behaviour was not such that the objective observer would call for sanction or censure.

Impact upon the Charter Protected Interest of the Accused in this matter

[ 52 ] Given that the breach of the right was not egregious, it would be difficult to say that the value of the right had somehow been diminished. The right Mrs. Figliola possessed was by virtue of the fact that she was the survivor of her and her husband. However, the practical realities were that before his demise, Mr. Figliola had effectively excluded his wife from the locked gun locker. She may have had a right to privacy in the abstract, but that was trumped by her husband locking the gun locker to her exclusion.

[ 53 ] That reality would surely impact upon an objective detailed assessment as to what exactly was at stake, a diminished right to an area that the individual hitherto had neither access nor knowledge as to what it held.

Society’s Interest in an Adjudication on the Merits in this matter

[ 54 ] Mrs. Figliola had no connection to or contribution to the contents of the notebook or cassettes. Both were produced by her husband. These items are “real” evidence. They existed independent of the legally non-consensual search. There is no question of the reliability of these items. Although the absence of evidence would not “gut” the prosecution’s case, it would leave vulnerable other aspects.

[ 55 ] The cassette reveals a couple seriously contemplating a separation and all the minutiae of their finances. This evidence is independently corroborative of the evidence of the siblings and mother of Mr. Figliola. No doubt because of the family ties, these witnesses would be suspect as to their observations of the state of the marriage.

[ 56 ] The journal reveals a husband so suspicious of his wife’s comings and goings; he recorded the departure, arrival times and expressed reason. His musings as to her honesty and fidelity are telling. This is independent evidence of the deceased’s state of mind. This evidence would also corroborate the evidence of Paddy Lucas. A possible motive arose.

[ 57 ] These two pieces of real evidence are in sharp contrast of the grieving widow picture of August 7, 2001. This was the backdrop of the murder, part of the “narrative” as it were.

[ 58 ] In terms of the truth finding process, these items certainly contribute to the big picture. The objective observer, that Justice Doherty spoke of, would want to know about these items. As His Honour stated in R. v. Wills at para. 103 “No doubt that a reasonable person dispassionate and fully apprised of all the circumstances would not be convinced on the balance of probabilities that the admission of this (evidence) would bring the administration of justice into disrepute. Indeed, the hypothetical person may well conclude that the exclusion of the evidence would turn the criminal process into a game of chance where an accused “won”….”

[ 59 ] Having assessed the three Grant factors this court is of the view that on balance, the admission of the cassette and notebook would not bring the administration of justice into disrepute and therefore this evidence is admissible.

WHITTEN J.

Released: June 22, 2012

COURT FILE NO.: J-05-62
DATE: 2012-06-22

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – MARIA FIGLIOLA PUBLICATION BAN RULING AS TO ADMISSIBILITY OF CONTENTS OF A GUN LOCKER WHITTEN J. ACRW/km

Released: June 22, 2012