ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P) 937/17

DATE : August 1, 2012

BETWEE N:

HER MAJESTY THE QUEEN

S. Karim, for the Crown

• and -

Cherubin CUBACUB

E. Brown, for the Defence

Defendant

Reasons on Applications

Ricchetti J.

[ 1 ] The Crown brings this application for a ruling that the videotaped statement given by Mr. Cubacub to Detective Bassier on March 13, 2010 ("Statement") was voluntary.

[ 2 ] The Defence brings an application that Mr. Cubacub's s. 7 and 10(b) Charter rights were violated and seeks a ruling that the Statement is inadmissible at trial.

[ 3 ] The voir dire on these applications proceeded together as a blended voir dire.

[ 4 ] I advised counsel that the Crown's application was granted and the Defence application was denied. I indicated I would provide reasons for my rulings at a later date to avoid any delay in proceeding with the jury trial. These are those reasons.

Crown's Voluntariness Application

[ 5 ] The onus is on the Crown to establish voluntariness beyond a reasonable doubt. In R. v. Papadopoulos , [2006] O.J. No. 5423 (S.C.) at para. 8 , Justice Dawson succinctly summarized the general legal principles on a voluntariness voir dire as follows:

With respect to voluntariness, the burden of proof is upon the Crown beyond a reasonable doubt. The governing legal principles are reviewed in R. v. Oickle , 2000 SCC 38 , [2002] 2 S.C.R. 3, 147 C.C.C. (3d) 321. In order to determine whether voluntariness has been established I must evaluate all of the circumstances surrounding the making of the statements in question. The issue is to be determined by means of a contextual analysis. If I have a reasonable doubt about whether the accused was induced to speak because of threats, promises or oppression emanating from a person in authority then I must exclude the statement. These factors may operate individually or cumulatively. I must also inquire into whether improper police trickery, as defined in Oickle , is implicated in the making of the statements. I must be satisfied the accused was possessed of an operating mind.

[ 6 ] The Supreme Court in Oickle , at para. 71 stated:

Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an “inducement” as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one’s nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett , supra . On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for “some palpable and overriding error which affected [the trial judge’s] assessment of the facts”: Schwartz v. Canada , 1996 217 (SCC) , [1996] 1 S.C.R. 254, at p. 279 (quoting Stein v. The Ship “Kathy K” , 1975 146 (SCC) , [1976] 2 S.C.R. 802, at p. 808) (emphasis in Schwartz ).

[ 7 ] The essential issue raised by the Defence is that an inducement was made by Detective Bassier in the following portion of the interview:

Bassier: Okay. Um, now, uh, I'll tell you a few things about the process, just so that you know how this is gonna unfold. Um, when sexual assaults occur, um, there's always, uh-, and I'm gonna use, uh, the male and female analogy here. Um, she gives an account of what occurred and, uh, if you choose to speak with me, they you will give an account of what occurred, um, and ultimately, I decide whether or not, uh, a charge is appropriate. You're under arrest right now, um but there's kind of a step. There's a step between getting arrested, and getting charged, all right.

Cubacub: Mm-hmm.

Bassier: So I have only spoken to N. right now, and she has given me, uh, an account of, uh, what has transpired over the course of the evening, and she has made out the offence. Okay? But I haven't spoken to you yet, and I have found in the past that, um, let's say, due to alcohol, uh, due to drugs, um, people's perception sometimes changes. And when I speak to the other involved party, I learn new things. All right, so, uh, I am an open book, I've, I've got open ears, I'll listen to everything that you have to say, um, but I only have N.'s version. So I'm really interest in what you might have to tell me, okay, um, but ultimately, at the end of the day, it's your decisions whether you wanna speak. Um, did they read you anything-, uh, it's called a caution, and it says something like, um, everything that you say, I may make a note of, and it could be used as evidence?

Cubacub: Mm-hmm (affirmative)

Bassier: Yeah. Did you understand that?

Cubacub: Yes.

Bassier: Okay. It's very similar to what you see on television. Um, but, uh, like I just try to reinforce, if you've got, uh, a version of events that you would like to tell me, then that might very well, um, um, shed some light on what happened, all right, 'cause I only have one version of the events right now. Okay? So before we get to that, let me just, uh, go over a couple of things here. Um, every si-,……

Bassier: … I might stumble a little bit, too. So- all right. Um, we're done with that. Um, like I say, I, I often find that, uh, uh, there's two versions to, uh, every tale. Um, N. did tell me that, uh, there was some alcohol consumed. Uh, N. did tell me that, uh, uh, there was some marijuana use going on at the house. Um, uh, I have encouraged her to be as truthful as she can, uh, about everything, and, uh, uh, at the end of the day, I just wanna get to the bottom of this, all right? Uh, I, I don't like to, to chase, uh, false accounts, um, and I just want to, uh, get to the truth of it, all right? So, um, I-, is there something that, uh, I ought to know? Because like I said, she has given me an account that, uh, alleges a criminal offence, that of sexual assault, and um, sometimes when a person's in that chair they're saying I didn't commit a sexual assault, what I did was not a criminal act, and then they can justify it. So I'm just wondering if you have any input of any sort.

Bassier: ….both participants. Um, I'm not saying all the time, but, uh, quite frequently I get input from both parties, and I do find that, uh, it was a consensual act. And what happens is, perception is different from the different people. But at the end, uh, of the investigation, I find that no criminal offence took place. All right, um, just so that you understand that. And when no criminal offence takes place, then no charges are laid, all right. Now, I understand that the officers at the scene, uh, might very well have had ground to arrest you, but they didn't interview you, did they?

Cubacub: they were as-, they asked me, they asked me what happened exactly that night.

Bassier: Yeah.

Cubacub: And I did tell them exactly from the ….

Bassier: Well, that's what I'd be interested in, because I haven't spoke to you at length about this.

Cubacub: Okay.

Bassier: I've only spoken to N..

Cubacub: All right. The-, you, this is what happened.

Bassier: Okay.

Cubacub: I'm gonna tell you right now

[ 8 ] Mr. Cubacub testified he understood that "everything would be dropped" if he spoke to Detective Bassier, which he stated affected his decision to talk with Detective Bassier. The formal Defence position is somewhat "softer." The Defence submits that in essence this was a "tell your side of the story and you might walk out" as an inducement to Mr. Cubacub to speak with Detective Bassier.

[ 9 ] I reject Mr. Cubacub's evidence.

[ 10 ] Mr. Cubacub told the officers at the scene what had happened. There was no reluctance to do so.

[ 11 ] When the forensic officers arrived to take a sample of the blood on his hand, without any enquiry by the officers, Mr. Cubacub asked them "Can I say something for the record?" He was told not to by the forensic officers. This is consistent with Mr. Cubacub wanting to provide his version of what happened rather than being induced to tell Detective Bassier what happened.

[ 12 ] I agree it was implicit in what Detective Bassier said to Mr. Cubacub that, if Mr. Cubacub could explain what happened, he might not get charged. This same hope or inducement is explicit or implicit in every police interview when the persons arrested and interviewed make an exculpatory statement. Each hope they can persuade the interviewing officer(s) and walk out of the police station. Unless something happens to lead the person interviewed to believe otherwise, there are no guarantees and the person interviewed knows that. I have no doubt Mr. Cubacub knew that there was no guarantee he would be released if he talked to Detective Bassier. Quite frankly, the interview demonstrates that Mr. Cubacub knew he remained at peril on the charge even as he was answering Detective Bassier's questions.

[ 13 ] What is left to be decided? The issue is whether this implicit "hope" makes the statements of Mr. Cubacub involuntary at law.

[ 14 ] This was dealt with by the Supreme Court in Oickle , supra at para. 57 :

Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law.

...

[ 21 ] I am satisfied beyond a reasonable doubt the statement made by Mr. Cubacub to Detective Bassier was voluntary.

[ 22 ] The Crown's application is granted.

The Defence Application

Was there a s.7 Charter breach?

[ 23 ] The evidence is that Mr. Cubacub was advised of his right to silence before he started to explain to Detective Bassier what had happened that evening:

a) By Constable B. Holmes - at the scene. Mr. Cubacub confirmed he understood his right;

b) By Detective Murtland at the police station -

• "you don’t' have to say anything"… "whatever you do say can be given in evidence against you in court." (page 4 of the transcript of the videotape);

• it probably a good idea not to say anything "right now" (page 5 of the transcript of the videotape);

c) By Detective Bassier at the police station -

• "so I'm really interest in what you might have to tell me, okay, um, but ultimately, at the end of the day, it's your decision whether you want to speak. Um, did they read you anything -, uh, it's called a caution, and it says something like, um, everything that you say, I may make a note of, and it could be used as evidence." (page 11 of the transcript of the videotape)

[ 24 ] It is only after these cautions Mr. Cubacub commenced to describe what happened to Detective Bassier.

[ 25 ] In, R. v. Singh , 2007 SCC 48 , [2007] 3 S.C.R. 405 at para. 37 , the Supreme Court stated:

Therefore, voluntariness, as it is understood today, requires that the court scrutinize whether the accused was denied his or her right to silence. The right to silence is defined in accordance with constitutional principles. A finding of voluntariness will therefore be determinative of the s. 7 issue.

[ 26 ] Mr. Cubacub was advised on several occasions of his right to silence. He was explained his right to silence. He understood the right to silence. He told Detective Holmes this. He expressed his knowledge of his right to silence during the interview on several occasions. His statement was voluntary at common law.

[ 27 ] The Defence has failed to establish a breach of Mr. Cubacub's s.7 Charter rights on the balance of probabilities. I find there was no breach of Mr. Cubacub's s.7 Charter rights.

Was Mr. Cubacub's s. 10(b) Charter rights breached?

[ 28 ] The evidence before me was as follows:

a) Mr. Cubacub was explained his right to counsel by Constable Holmes at the scene. Mr. Cubacub indicated he understood his rights. When asked whether he wanted to call a lawyer "now" (being when he was arrested), Mr. Cubacub responded "no";

b) At around 3:30 a.m., police officers from Forensics attended the interview room to take swabs from Mr. Cubacub's fingers. Mr. Cubacub wanted to "say something for the record." The officers told Mr. Cubacub not to say anything "right now." There was no request by Mr. Cubacub to speak with a lawyer during this interaction;

c) At 4:40 a.m. the police arranged and Mr. Cubacub spoke to duty counsel for some 3-5 minutes.

...

[ 33 ] The first two are not applicable in this case. In this case, there can be little doubt that Mr. Cubacub understood his right to choose whether or not to cooperate with the police during the interview. There was no further right for Mr. Cubacub to speak with a lawyer.

[ 34 ] There was no new procedure.

[ 35 ] There was no change in jeopardy.

[ 36 ] Mr. Cubacub understood his rights - his choice whether to cooperate. Mr. Cubacub said: "…I don't know if should be talking"... "I think it-, that's the only thing, I don't know if I should be talking, knowing that somebody mentioned to me, don't say anything….anymore until you get your lawyer, and that's all know, I mean, I, I've never done this before". (See page 18 of the transcript).

[ 37 ] Nothing had changed.

[ 38 ] Simply, demanding a further opportunity to speak with a lawyer or duty counsel again does not amount to a breach of Mr. Cubacub's Charter rights. The police could continue to question Mr. Cubacub provided it did not infringe the confession rule. Mr. Cubacub, having an operating mind and understanding it was his choice whether to cooperate, had the option to exercise his right to silence by refusing to answer any further questions.

[ 39 ] The purpose and intention of s. 10(b) was met.

[ 40 ] The Defence has not established, on the balance of probabilities, that Mr. Cubacub's s. 10(b) Charter rights were breached.

S. 24(2) Analysis

[ 41 ] Even if there had been a breach, I would not have excluded the statement.

[ 42 ] Section 24(2) of the Charter provides as follows:

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded 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

[ 43 ] The analysis as to whether evidence should be excluded is the consideration of the following factors set out in R. v. Grant , 2009 SCC 32:

(a) The seriousness of the Charter infringing state conduct;

(b) The impact on the Charter interests of the accused; and

(c) Society’s interest in adjudicating a trial on the merits.

[ 44 ] I am not persuaded that the state's conduct in this was serious. Detective Bassier's action did ensure that Mr. Cubacub had received and understood his s. Charter right and had exercised his right to speak with duty counsel. There was no bad faith on his part. There was no oppressive conduct. This factor favours the admission of the videotaped statement into evidence.

[ 45 ] Sections 7 and 10(b) Charter rights are significant Charter rights and when infringed, have a significant impact on the accused. In this case, the statement was a repetition of what he had told the police before and was consistent with his evidence of what happened that night. This factor is neutral.

[ 46 ] Having determined that the statement was voluntary, it is reliable. This factor favours admission.

[ 47 ] Balancing these factors and considering the matter as a whole, the statement would have been admissible.

[ 48 ] The Defence application is dismissed.

Ricchetti J.

Released: August 1, 2012

COURT FILE NO.: CRIMJ(P) 937/17

DATE : August 1, 2012

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty the Queen - and – Cherubin CUBACUB Defendant REASONS ON APPLICATIONS Ricchetti J.

Released: August 1, 2012