ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-813
DATE: 20120905

B E T W E E N:

HER MAJESTY THE QUEEN

S. Aujla, for the Crown

• and -

ASHLEY EBANKS

J. Hershberg and H. Aly, for the Accused

HEARD: June 19, 20, 21, 2012

REASONS FOR RULING on VOIR DIRE re VOLUNTARINESS

Baltman J.

[ 1 ] During a voir dire the Crown applied to have admitted at trial various statements attributed to the defendant. The defendant argued the statements were involuntary and in contravention of s. 10(b) of the Charter .

[ 2 ] After hearing the matter I ruled the impugned statements inadmissible, with reasons to follow if required. These are my reasons.

[ 3 ] Given my findings on the voluntariness issue, it is not necessary for me to engage in a s. 10(b) analysis.

Factual Allegations

[ 4 ] The defendant arrived at Pearson airport from Jamaica on January 8, 2010, at approximately 5 p.m. She was referred for a secondary examination, where she was questioned. A positive ion scan and various other indicators led to a detention pursuant to s. 98 of the Customs Act , which permits an officer to search a suspect whom she “suspects on reasonable grounds” is carrying contraband. Customs officers suspected she had ingested narcotics.

[ 5 ] The detention commenced at 7:20 p.m., when the defendant was told she was being held pursuant to s. 98 and read her rights to counsel. At 7:40 p.m. the defendant spoke with duty counsel for approximately ten minutes. She was then strip searched and brought to a “loo” room, which contains a special toilet that permits officers to collect bowel excretions as evidence.

[ 6 ] At 8:35 a.m. on January 9 th the defendant admitted she had ingested narcotics. She was immediately arrested and read her rights to counsel. Shortly thereafter she was observed trying to remove a vaginal insert, which contained cocaine. She also stated that she had swallowed numerous pellets. At approximately 9:00 a.m. she spoke with duty counsel. The RCMP then assumed custody of her and transported her to hospital, where x-rays confirmed numerous pellets inside her.

[ 7 ] She was then transported to Terminal 1 cells, which also contain a special loo. Between 5:30 p.m. on January 9 th and 2:37 a.m. on January 10 th she produced 22 pellets of cocaine. The combined weight of the pellets and vaginal insert was 406 grams.

The Statements in Issue

[ 8 ] From the time she was referred to secondary at 5:00 p.m. on January 8 th , until she was taken to court at 10:00 a.m. on January 10 th - a span of over 40 hours – the defendant made numerous utterances. They fall into three timeframes: the first were statements made pre-detention, during the “screening” phase, which was between 5:00 p.m. and 7:20 p.m. on January 8 th . The defence does not oppose their admission.

[ 9 ] The second phase was from post-detention to the time of her arrest, i.e. from 7:20 p.m. on January 8 th (when her detention began) to 9:00 a.m. on January 9 th , (after she had been arrested and spoken to counsel). The defence opposes admission of these statements.

[ 10 ] The third phase was post arrest, and consists primarily of a video statement the defendant gave to the RCMP at 11:50 a.m. on January 10 th . The Crown was not seeking admission of that statement.

[ 11 ] Consequently, the focus of this decision is on the “post-detention and pre-arrest” phase, from 7:20 p.m. on January 8 th to 9:00 a.m. on January 9 th . It is during that period that the defendant admitted to have ingested contraband, allegedly stating that she did not know how many pellets she swallowed but that it took 1-2 hours for her to ingest them.

[ 12 ] The defence challenge on voluntariness was essentially two pronged: first, the handwritten records maintained by the border officers are unreliable and misleading, and second, any alleged statements were extracted in an atmosphere of threats and oppression.

The Legal Framework

[ 13 ] It is well established that the onus is on the Crown to establish beyond a reasonable doubt that statements made by the defendant to any persons in authority were voluntary, in order to be admissible.

[ 14 ] In assessing voluntariness the court must keep in mind the twin goals of protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes. The focus is on the conduct of the police and its effect on the accused’s ability to exercise her free will. The relevant factors include threats or promises, oppression, the requirement of an operating mind and police trickery. These inquiries are highly fact-specific: R v. Oickle , 2000 SCC 38 , [2000] 2 S.C.R. 3 (S.C.C.) .

[ 15 ] In R. v. Burke , 2010 ONSC 6530 , [2010] O.J. No. 5219 , at paras. 28-39 , I reviewed the jurisprudence concerning the failure by police to adequately record statements. In sum:

• While there is no absolute rule requiring the recording of statements, not only is it the better practice but in many circumstances the failure to record will render a confession unreliable;

• Where a suspect is in custody, recording facilities are readily available and the police deliberately set out to interrogate the suspect, a non recorded statement will be suspect; in that case the court must consider whether there exists a “sufficient substitute” for the recording.

[ 16 ] See, in particular, Oickle , para. 46 ; R. v. Moore-McFarlane , 2001 6363 (ON CA) , [2001] O.J. No. 4646 (C.A.) at paras. 65 and 67 ; R. v. Ahmed , 2002 695 (ON CA) , [2002] O.J. No. 4597 (C.A.) at para. 22 .

Evidence and Analysis

[ 17 ] It is undisputed in this case that the defendant was in custody during the relevant period. I am also satisfied that recording facilities are readily available. That recording devices are not currently supplied is no answer. With minimal effort and expense, tape recorders could be purchased and provided to border service officers (BSO’s).

[ 18 ] I appreciate that in searches of this nature privacy is a great concern. In my view an audio rather than a video recording strikes a reasonable balance. To the extent even an audio recording captures embarrassing and irrelevant sounds emitted by suspects attempting to use the loo, the tapes can be edited, either on consent or by application to the court.

[ 19 ] Recent decisions that support audio recordings of defence medical examinations in civil cases also recognize the importance of an accurate, independent record when the party being examined is an adversarial relationship with the examiner: Bakalenikov v. Semkiw, 2010 ONSC 4928 , [2010] O.J. No. 3877 (S.C.); Moroz v. Jenkins , [2010] O.J. No. 3730 (S.C.) . See also the dissent of Lang J.A. in Adams v. Cook, 2010 ONCA 293 , [2010] O.J. No. 1622 (C.A.), and a helpful review of the jurisprudence by Kristian Bonn entitled “Recording Defence Medical Examinations: Where Are We Now?”, The Litigator (September 2011), p. 27.

[ 20 ] I am also satisfied that the border officers involved deliberately interrogated the defendant without giving much thought to making a reliable record. All the BSO’s that were significantly involved in this detention testified. Several of them admitted that they were attempting to gather evidence. While some of their discussions with the defendant may have also had a health and safety component, they were clearly attempting to obtain incriminating statements.

[ 21 ] Having concluded that all three suspicious factors identified in the jurisprudence exist in this case, and the statements are therefore suspect, I must now determine whether the recording that was obtained is a “sufficient substitute”.

[ 22 ] From the testimony given by the officers the following was evident:

• Most of them had minimal, if any, independent recollection of their interaction with the defendant; they depended heavily on the notes they made at the time and their subsequent “narrative reports”;

• Neither their notes nor their narratives purport to be a comprehensive account of all the conversation that took place between them and the defendant; while various utterances are allegedly quoted “verbatim”, the majority of their notes simply convey the “gist” of what they thought was important;

• For the most part their testimony consisted of a summary of what they thought was significant in their dealings with the defendant, punctuated by incriminating comments devoid of any real context.

• Significantly, in most cases none of the officers can state what occurred or was said immediately before the impugned utterances, thereby depriving the court of an accurate context in which to assess the remarks: see R. v. Hunter, 2001 5637 (ON CA) , [2001] O.J. No. 2388 (C.A.), paras. 14 and 19

[ 23 ] Given those factors, in my view the dangers of admitting the impugned statements are too great. While all the officers insist they made no threats or promises to induce the statements, the absence of a reliable, detailed record in this case makes it impossible for me to assess that claim objectively.

[ 24 ] The Crown argued that as there is no evidence to directly contradict the officers, their evidence should be accepted. However, the accused is not obliged to proffer evidence in order to successfully challenge the sufficiency of the record. The onus is on the Crown to satisfy me as to the accuracy and reliability of that record.

[ 25 ] That finding on its own is enough to dispose of the application. However, I also have concerns about the atmosphere in which the statements were obtained. In particular:

• The period in question involves a 16 hour time span from when the defendant was referred to secondary until she was arrested, beginning at 5 p.m. on January 8 th , continuing throughout the evening and overnight, and ending at 9:00 a.m. on January 9 th ;

• Throughout that period the defendant was not permitted to sleep, despite complaining that she was tired; the officers agreed that she was visibly tired and agitated;

• While the BSO’s claimed there were valid medical reasons for keeping her awake (fear that pellets would explode without anyone knowing and thus endanger her life), I am not convinced that was the true motive; as there were no paramedics close by, even an awake offender would likely die by the time an ambulance arrived. In any case, any admissions have to be seen in this context. She may have had an operating mind, but her ability to make voluntary choices was undoubtedly impaired by the lack of sleep: see R. v. Reashore, [1999] N.S.J. No. 469 (S.C.), paras. 8-14 ;

• The defendant complained that she was cold and the officers acknowledged that the room was quite cold. The only place for her to sit or lie down was on a metal bench. Despite that, she was not provided with a blanket or any means to keep warm throughout the 16 hour detention;

• The defendant was relatively young at the time (23 years old) and this detention and interrogation was a new experience for her. The officers undoubtedly knew that.

[ 26 ] While those factors on their own may not render the statements involuntary, when added to the inadequate record I am not able to find the Crown has discharged its high burden of establishing voluntariness. The application is therefore dismissed.

Baltman J.

Released: September 5, 2012