COURT FILE NO.: J-05-62

DATE: 2012-09-05

ONTARIO
SUPERIOR COURT OF JUSTICE

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 Lacy and Mr. Brad Greenshields, Counsel for the Defendant

HEARD: August 7 and 8, 2012

PUBLICATION BAN

VOIR DIRE # 5

RULING AS TO THE VOLUNTARINESS OF STATEMENTS OF 2002

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 ] This court, by ruling released June 15 th , 2012, determined that the statements made by Maria Figliola to the police in 2001 were voluntary.

[ 4 ] By ruling dated June 22 nd , 2012, this court held that the taking of certain items from the gun locker of the deceased (warrantless as it was), violated the s. 8 rights of the applicant. However, having so ruled, the court considered this evidence admissible pursuant to s. 24(2) and having considered principles in enunciated in R. v. Grant (2009) 2009 SCC 32 () , 2 S.C.R. 353 (S.C.C.).

[ 5 ] On August 2 nd , 2012, the court ruled that the ITO used to obtain certain cell phone records was sufficient, and consequently the records were admissible.

[ 6 ] On August 9 th , 2012, the court ruled that the ITO relative to a Part VI authorization granted August 14 th , 2002, was in accordance with the prerequisites of s. 186. The intercepts of the telephone communications between Maria Figliola, Geoffrey Gonsalves and others were valid from August 19 th , 2002 through to October 16 th , 2002.

ISSUES

[ 7 ] The Crown seeks a declaration that the statements of Maria Figliola to the police, August 27 th , September 3 rd and September 9 th , 2002 were voluntarily given. The evidentiary burden upon the Crown is that of proof beyond a reasonable doubt.

[ 8 ] Counsel for the defense challenges such a finding on the basis that the conduct of the police offended the concept of “investigative fairness”, specifically by failing to caution Maria Figliola and by repeated lies as to her status as a “suspect”, such that her right to silence was compromised. Ancillary to the defense argument is that the evidence as to the contents of the August 27 th , 2002, statement lacks reliability. The defense also argues that given the June 22 nd , 2012, ruling of the court that the cassette recording made by Frank Figliola and consequently seized by the police from his gun locker on August 8 th , 2001, should be excised from the statement made by Mrs. Figliola on September 3 rd , 2002. The rationale for this excision being that to allow that evidence would be, in a way, allowing the police to capitalize on unconstitutional practices.

FACTUAL BASIS OF THE APPLICATION

[ 9 ] It was agreed that the evidentiary basis of the previous voir dire with respect to voluntariness would be applicable.

Exhibits

[ 10 ] Exhibit #1 with its eighteen tabbed items was a collection of transcripts of intercepts of phone conversations of Maria Figliola from August 27 th , 2002, through to September 20 th , 2002. Exhibit #4 was a CD containing the actual intercepts.

[ 11 ] Exhibit #2(a) was the recorded conversation/interview between Officers Bennett, Harab and Maria Figliola on September 3 rd , 2002. Exhibit #2(b) was the actual DVD recording of the interview.

[ 12 ] Exhibit #3(a) was the transcript of an interview of Maria Figliola conducted by Officer Wayne Bennett on September 9 th , 2002. Exhibit #3(b) was the DVD recording of that interview.

[ 13 ] Exhibit #5 was an email distributed amongst various branches of the Hamilton Police Services on September 29 th , 2002, as to the recording of statements.

Highlights of Exhibits

A) Exhibit #1 Telephone Intercepts.

[ 14 ] Tab. 1 was an intercept of a conversation between Maria Figliola (Figliola) and Geoffrey Gonsalves (Gonsalves) on August 27 th , 2002 at 19:05. This would be immediately after the conversation between Figliola and Officers Harab and Bennett in her residence on August 27 th , 2002.

[ 15 ] Figliola explained to Gonsalves the police were reopening her husband’s case. The reason being that they had taken off the case the cop that she had gotten “pissed off with…something went on with him…dirty underhanded stuff.” The police were going to have a re-enactment of the murder televised. Figliola relayed how the police had explained to her that they had taken the wrong approach as to there being a connection with gambling. The police had apologized to her, for the way the one cop (Russell Gordon) had acted towards her.

[ 16 ] Gonsalves asked Figliola if “she was fine either way”. She responded in the affirmative. Gonsalves mused about whether or not “like a year later they’re fucking all of a sudden get their shit together or what?” Figliola responded “yeah, because they don’t know what they’re doing, fucking idiots.”

[ 17 ] Figliola also referred to the fact that “they asked me if I had a cell phone number. No. I don’t know what I wanna get rid of this number, Geoff.” Gonsalves advised Figliola to get rid of the phone completely and that he would obtain a phone number under his name.

[ 18 ] Later on in the conversation, Figliola explained her reluctance to go to Gonsalves as she did not want the police watching her. He suggested she take a drive somewhere to test out whether or not they (the police) were watching her. Figliola agreed with that suggestion.

[ 19 ] Tab. 2 was a subsequent conversation between the two the same evening commencing at 19:33.

[ 20 ] As to whether or not the police would be watching her, Gonsalves thought it more likely that they would watch Figliola on the weekend. Figliola was more worried about, at the time of the call, than being watched on the upcoming long weekend. She reiterated how the police had apologized for the “fucking crooked cop” who was now off the case.

[ 21 ] Tab. 3 was a conversation between Officer Harab and Figliola on August 28 th , 2002, at 11:49 to arrange for Figliola to come to the Central Police Station. The appointment was ultimately arranged for the following Tuesday between 5:00 and 6:00.

[ 22 ] Tab. 4 was an intercept of a conversation between Figliola and Gonsalves on September 3 rd , 2002, at 17:35. Figliola mentioned how she had to go to the cop station. Gonsalves asked if she was taking anyone with her. Figliola planned to go on her own. She would call Gonsalves after it was over.

[ 23 ] Tab. 5 was an intercept between Maria Figliola and her daughter on September 3 rd , 2002 at 20:50. She explained that she had just spent over two and a half hours with the police. She actually sounds quite composed; matter-of-fact.

[ 24 ] Tab. 6 was a similar conversation between Maria Figliola and her son, Frankie Figliola, shortly after the call to his sister.

[ 25 ] Tab. 7 was an intercept of a conversation between Figliola and Gonsalves on September 3 rd , 2002, at 10:52 p.m. Figliola remarked that “oh my God, they wanted to go through everything from the beginning.” When asked if she had any news, she stated “no, they have no…clue. They’re unbelievable.” Figliola reported how she had told the police “well, it’s about time you guys started doing something…”

[ 26 ] Tab. 8 was an intercept between Figliola and her son (the transcript mistakenly refers to the male party as Gonsalves) on September 5 th , 2002 at 18:36. Frankie Jr. stated that he was coming home from the stupid cop station. Figliola asked [ about what they had asked him ]. He responded, “Shit, stupid stuff.” Later, in response to the inquiry by his mother, he reported that they (the police) had not upset him. When pressed as to what they did say, he responded “…everything they asked you and Luisa, the same shit.”

[ 27 ] Tab. 9 was an intercept dated September 9 th , 2002, of a conversation between Figliola and Officer Bennett in which it was arranged that Figliola would come to Central Station versus the East End Station for an interview.

[ 28 ] Tab. 11 was an intercept of a conversation between Figliola and Gonsalves on September 9 th , 2002, at 18:33, immediately before she went to the police station. When asked the reason for the interview, she responded that the police had gotten some tips as a result of the Crime Stoppers broadcast, and she believed they wanted her to look at some more stuff.

[ 29 ] Tab. 12 was an intercept between Figliola and Gonsalves on September 10 th , 2002, at 17:03. Figliola told of how she had to go again to the police station. The day before she had been made to go through a bunch of names and describe her association with them. Apparently that evening she anticipated that she would have pictures of some of the names, in case she would recognize them. “Most of all, they wanted to know what Mark’s association was with me.” That was why she could not talk on the phone last night. The safest phone in her opinion was the company phone. Figliola wanted to change her cell phone number to one under Gonsalves’ name so that it would not be traced back to her. Figliola assured Gonsalves that she would come down to see him as soon as she was finished with the police. She asked for Gonsalves to understand the situation, stating “Baby, please, we knew this was going to happen. They’re getting aggressive with it right now ‘because they have nothing…” Figliola mentioned how the police had “Reno’s” name on the list. The police had the names of all the “fucking bookies.”

[ 30 ] Tab. 13 is an intercept between Figliola and Gonsalves on September 10 th , 2002, at 20:24. Figliola’s comments suggested she had been at the police station. Gonsalves observed that they had her at the station for over two hours looking at pictures. Figliola confirmed that observation. She outlined to him the actual times of her attendance. He appeared to be upset [t hat ] she was not there with him. She responded, “Well, I’m sorry Geoff. I’m really sorry that I really fucked up, what the fuck are these cops doing here? Oh shit, I’m sorry, I should have said to them I’m sorry, I have to cook by boyfriend’s dinner, could you excuse me…” Gonsalves did not believe Figliola was being sufficiently attentive to his needs. She tried to explain that she was trying to be “cooperative” with the police.

[ 31 ] Tab. 14 was another intercept of a conversation between Figliola and Gonsalves the same day, namely September 10 th , 2002, at 20:38. Gonsalves complained about her inability to come to him. He stated, “Well all of a sudden in the middle of nowhere the cops want you at the cop station every day again.” She responded “No its only twice this week that they called me, once okay because of all the bullshit that they’re putting out and they’re hoping to get some clues. I mean hopefully they can come up with something because they put that thing on the TV you know they are getting some calls in. I had to go through the list of people who I know; how I know them, bop bop bop or whatever the case may be…”

[ 32 ] Tab. 15 was an intercept of a conversation between Figliola and Gonsalves dated September 19 th , 2002, at 10:32 (by then Gonsalves had been interviewed himself). Figliola told Gonsalves that she was going to the police. He wanted her to “just take care of it.”

[ 33 ] Tab. 17 was an intercept of a conversation between Figliola and Gonsalves on September 19 th , 2002. Figliola reported as to her efforts to set up an appointment with the police.

The Interview of September 3 rd , 2002

[ 34 ] This interview of Maria Figliola commenced at approximately 6:30 p.m. on September the 3 rd . The bulk of the questioning was by Officer Harab. From time to time Officer Bennett would contribute.

[ 35 ] Officer Harab, after a brief discussion about Maria Figliola’s new employer, noted that everything would be video recorded from then on. He then stated, “if anything that could be said, you know, someday hopefully were gonna to hit the court.” Mrs. Figliola responded “that would be good.” The officer then stated, “…you know, depending on what people tells us becomes evidence. You know, so you know, so that you understand that, Maria. And that you’re here of your own free will…nobody forced you or…”

[ 36 ] Mrs. Figliola interjected, “No you didn’t force me to come down, but after speaking to the other officer before I was advised because of the way he spoke to me and I had people present the way he spoke to me. My brothers and friends and all said if you were to speak to the police again you’re supposed to go with a lawyer. I say’s why? I didn’t do anything wrong, it’s just I guess it’s just an empty innuendo’s and stuff like that.”

[ 37 ] Officer Harab reiterated his apology on account of Officer Gordon’s behavior and stated that they (the police) were off on a new foot.

[ 38 ] The interview was essentially launched at this point with Mrs. Figliola complaining about her treatment by the media. They discussed the area where she and her husband would walk, how, according to her husband, kids used to smoke up there.

[ 39 ] The Crime Stoppers tape was played and generated discussion about numerous matters of interest to Mrs. Figliola. Various details Mrs. Figliola had read about were discussed, along with other crimes that had taken place in the vicinity. Frank Figliola’s lack of adherence to his diabetic regime was raised, along with her frustrations with him in this regard. Mrs. Figliola somehow believed the police had never found her husband’s wallet. That was not the case. However, the keys to his vehicle were never found.

[ 40 ] Mrs. Figliola, after hearing the objective behind the Crime Stoppers enactment stated, “I pray to God somebody calls.”

[ 41 ] Officer Bennett let it be known that the police made several observations over the years of persons involved in gambling. Their intent was to run by her some of the names to see if she recognized any of the names.

[ 42 ] There was a general discussion with respect to the voyeuristic nature of people.

[ 43 ] Mrs. Figliola spoke of her church affiliation and of her prayers.

[ 44 ] Mrs. Figliola described her juggling of several jobs to make ends meet.

[ 45 ] The officers then played the cassette that her husband had recorded and which was found in the locked gun locker. The theme of the tape, from the point of view of the officers, was Frank Figliola asking his wife where all the money had gone. This playing provoked several side discussions; for example, the circumstances of her embezzlement from CIBC and consequential resignation, the production of the counseling files, the necessity for search warrants and the difficulty Maria Figliola had with obtaining a death certificate. Mrs. Figliola would explain the various debts and the money sums were discussed in the tape of the couple arguing.

[ 46 ] Mrs. Figliola explained how her husband had a constant appetite for money; he needed money to participate in gambling junkets to Vegas and Atlantic City. His parents, she explained, would be unaware of the extent of his gambling. She discovered that her husband had a Visa account she was unaware of. She did not know how much he owed “bookies”. She gave him the $400,000 she had embezzled. Mrs. Figliola confirmed the divorce discussions she had with her husband. Those started, according to her, in 2000.

[ 47 ] Approximately 3/4 of the way through this rambling discussion (ref. pg. 40 of the transcript) Officer Harab suggested that maybe her husband’s death was related to what she had done at the CIBC. In other words, someone was out to get her because of what she had done. Mrs. Figliola described how she used her lawyer to resign and act as a spokesperson in her dealings with her former employer.

[ 48 ] At that point, the officers had a list of names that they wished to present to Mrs. Figliola to see if she recognized any of them. Of the names mentioned, there were the names of Daniel DiTrapani, Mark Sweitek and Maatore Pignatelli. Mrs. Figliola denied knowing any of these people.

[ 49 ] Shortly afterwards, within a discussion of the concept of a crime of passion, the subject of her having an amorous relationship arose. She denied having such a relationship at the time of her husband’s death and as of the interview. Mrs. Figliola observed that if her husband had found her, he would have put her “six feet under” as that was unforgivable. In point of fact, she stated nobody would go near her because she had brought “bad luck” upon her husband. She may have male acquaintances, but she was not sleeping with anyone right then (i.e. the time of the interview).

[ 50 ] There are several times during the interview when Mrs. Figliola appears to be overwhelmed with emotion.

The Interview of September 9, 2002

[ 51 ] This interview of Maria Figliola by Officer Wayne Bennett commenced at 7:16 p.m. and lasted just under one-half hour ( Exhibit #3 ).

[ 52 ] Officer Bennett launched the discussion by referring to the fact that the police had been looking into some of the local clubs, social and sport. He referred to the fact that at the previous interview, he mentioned some names to her to see if there were any that were familiar to her. One of those names was “Mark Swieteck”. Mrs. Figliola acknowledged that she knew a “Mark” but the surname was not familiar to her. According to Officer Bennett, Frankie Figliola (Jr.) had mentioned knowing Mark Swieteck having met him through his mother, Mrs. Figliola. In fact, Swieteck and he sometimes worked out at the same time.

[ 53 ] Mrs. Figliola was insistent that the Mark that they knew did not have the surname Swieteck. She described him physically. She was prepared to phone up the Mark she knew to determine his last name. Mrs. Figliola described how her son would have come to meet “Mark”. His surname was Polish.

[ 54 ] The conversation changed in direction in that the difficulty Frankie Figliola (Jr.) was having with speaking to the police, the opening of the wounds he experienced was related by his mother. Mother and son had discussed the identity of “Mark”. Mrs. Figliola emphasized with the officer that she would be the first one to give names of any “outside forces”. She was prepared to clarify with her son the identity of “Mark”.

[ 55 ] Her son had also mentioned to the police that Mr. and Mrs. Figliola were not getting along. Mrs. Figliola readily acknowledged that that was the case for a few years. Her husband effectively lived in the basement and she upstairs. Mrs. Figliola spoke of how her parents had advanced her the retainer fee for her lawyer.

[ 56 ] The actual recording date of the taped conversation the gun locker was discussed; the officer came from the point of view that it must have been in the year 2001 given the ages of the children referred to in the tape. Mrs. Figliola believed that it must have been in 2000 given that was when the lawyers were preparing the papers. She did not believe it could have been recorded the week before Frank was killed. In fact, there had been an improvement in their relations in the week before his death. She spoke of how her husband was not compliant with taking his insulin.

[ 57 ] The conversation reverted to “Mark” with Officer Bennett intimating that Mark was one of those persons they had observed coming and going from the clubs. Again, Mrs. Figliola was willing to obtain the surname of Mark. He was a bodybuilder who worked out at her gym daily. The officer intimated as he had before in the interview that he was concerned that they (Mrs. Figliola and he) be on the same page. If it was who she believed Mark to be, he was no damage to herself or her son. She would get a hold of him (Mark) and have him contact the police.

[ 58 ] Mrs. Figliola inquired as to the tips the police had received from the crime stoppers re-enactment. Officer Bennett related how they had not validated the information as of the time of the interview.

[ 59 ] Apparently a newspaper woman had come to Mrs. Figliola’s residence the week before this interview and had inquired as to the possibility of an interview. Mrs. Figliola had directed this person to contact the police. She did not want to talk to anybody. Officer Bennett stated that she did not have to talk to him if she did not want to. She responded “No I was told that…I was told that they said you should not be talking to the police because they’ve accused you, I said first of all nobody is accusing me of anything”. The officer responded “Right”. Mrs. Figliola followed up with “that I know of”. Again the officer responded with “Right”.

[ 60 ] Mrs. Figliola knew her husband’s family had accused her of “everything”. She asked the officer how he knew about the incident at the bank. He conceded it may have been her husband’s family who told them. Mrs. Figliola mused out loud, that she was thinking that the police in investigating what happened to her husband were investigating her. Her brother had suggested that her to her. Officer Bennett reverted to the theory Officer Harab had advanced as to someone being pissed off at her and that they were getting back at her.

[ 61 ] Mrs. Figliola did not believe that to be the case as she had been very good at her work at the bank. The bank had gone downhill after her departure. She spoke of one of her biggest clients who had offered to be a reference for her. That is why she could not believe Officer Harab’s theory to be valid.

[ 62 ] Officer Bennett explained that his number one concern was to find out who murdered her husband. Mrs. Figliola emphasized she wanted to know that more than they did. She had prayed to be left alone. In fact, she wanted her husband back because she enjoyed arguing with him. She wanted closure. There was “so much crap out there”. The officer stated how they were actively pursuing the case.

[ 63 ] The interview concluded with Maria Figliola re-iterating how she would let the officer know about “Mark”. She would ask him to go down and speak with the police.

Exhibit #5 Internal Police Memorandum to various police sections dated September 29, 2000.

[ 64 ] In this memorandum, Inspector Bruce Elwood related how the Crown Attorney’s office had asked him to reinforce the issues of when a statement should be taken by audio or video. The inspector stated “in most every investigation (excluding homicide) audio and video should only be used for 1) accused person”.

Testimony on the Voir Dire

Staff Sergeant Steve Harab

[ 65 ] Officer Harab had had no contact with Maria Figliola prior to August 27, 2002. As noted previously, a wiretap authorization had been obtained and was valid from August 19, 2002 through to October 16, 2002. Officer Harab considered that a step of investigative necessity, they believed Maria Figliola was a potential accused, she represented the best avenue with respect to solving the murder.

[ 66 ] Officer Harab acknowledged that at a previous interview, namely, August 9, 2001, he and Officers Bennett, Beach and Gordon had met and concluded that Maria Figliola was a suspect. Officers Bennett and Gordon had met with Assistant Crown Attorney Scarica who advised them that Mrs. Figliola should be cautioned.

[ 67 ] On August 27, 2002 at around 6:00 p.m. Officer Harab along with Officer Bennett attended at the residence of Maria Figliola. The purpose behind the unannounced visit was to encourage conversation between the parties subject to the intercept. The officers identified themselves and were invited in. They sat with Maria Figliola in her kitchen with her son in the background.

[ 68 ] The interaction between the officers and the Figliola’s was not recorded. According to Officer Harab this was deliberate as they did not want to “scare her off”. Officer Harab interpreted the internal policy memorandum of Exhibit #5 to leave it up to the discretion of the officers as to whether interviews with those persons who were not under arrest would be recorded or not. It was agreed with counsel that Mrs. Figliola was a potential accused person. If she said anything that could potentially be used against her, he believed it would have been admissible against her. The officers were attempting to get back into her good graces, as she had cut off communications as of the previous November.

[ 69 ] Officer Harab started the interview by apologizing for the conduct of Officer Gordon. The latter had been the last to have had contact with Maria Figliola. She had accused Gordon of saying she was a suspect. Officer Harab did not actually believe that Gordon had done anything wrong. Harab assured Mrs. Figliola that she was not a suspect and that they, the investigators, were going to take a “different tack”. He agreed that all of this was with the object of getting her to talk. She would not talk with them if she thought herself a suspect. Officer Harab agrees that Maria Figliola was not given a real caution during this interview; however, he justifies that absence as they were not really there to interview her. Otherwise, they would have dealt with her differently.

[ 70 ] The officer spoke briefly about the tape cassette that was obtained from Frank Figliola’s locked gun locker. They spoke of her embezzlement from CIBC. The new “tack” was that there were people who were upset with her for that. The officers told Maria Figliola that there would be a Crime Stoppers enactment aired in about a week, the hope being that it would generate some public response.

[ 71 ] According to Officer Harab, Mrs. Figliola appeared to accept their apology with respect to the behaviour of Officer Gordon. Mrs. Figliola identified Mario Lali who had been referred to in the conversation taped by her husband. This reference suggests that portions of the tape must have been played before her on that occasion.

[ 72 ] Mrs. Figliola was positive that her son, Frankie, had provided the police with a name. Frankie Junior had made reference to a bookie who conducted business from Aszuri Sports Club. This person lived at the Bayview apartment. He drove a minivan with the name Asara Construction on the side.

[ 73 ] Mrs. Figliola agreed to come to the central police station to speak with the officers the following day. She provided the officers with her contact information. However, according to her, she did not have a cell phone. Eventually the meeting was set for September 3 rd , 2002.

[ 74 ] At 6:25 p.m. that day, Officer Harab met Mrs. Figliola and personally escorted her to the second floor interview room. As mentioned, that interview was the subject of Exhibit #2 . The officer believed that he gave Mrs. Figliola, to use his words, “a soft caution”. He did not believe that he was required to tell her that she had the right to a lawyer as she was a suspect. Officer Harab testified that the list of names furnished to Mrs. Figliola in that interview were of people they knew Mrs. Figliola had definitely had contact with, mixed in with persons they knew to be involved in illicit gambling. Officer Harab agrees that he was not honest with Mrs. Figliola in some aspects during that interview.

Sergeant Wayne Bennett

[ 75 ] Officer Bennett confirmed much of what Officer Harab had stated with respect to their unannounced visit to the residence of Mrs. Figliola on August 27 th , 2002. He agrees that the objective was to see if Mrs. Figliola would talk to them and to stimulate conversation between the intercept targets. Officer Bennett reiterated that if Mrs. Figliola refused to talk to them, they would have left.

[ 76 ] Office Harab did the bulk of the talking. Officer Bennett confirms the basic format of what was said. He was more definitive in his evidence that they had played a small portion of the conversation recorded by Frank Figliola. As previously mentioned, Officer Harab did not directly testify to that effect, but some of his testimony infers that this cassette was played.

[ 77 ] It was through the evidence of Officer Bennett that the various intercepted conversations of Exhibit #1 were introduced. The highlights have been referenced above.

[ 78 ] Officer Bennett explained that part of the reason for having Mrs. Figliola come to the central station on September 3 rd , 2002, was to have an opportunity to install the intercept equipment in her car. If Mrs. Figliola had decided to leave, the installation team would have been warned.

[ 79 ] Officer Bennett explained that the “Reno” referred to in the intercept of the conversation of September 10 th , 2002, the day after the interview, between Maria Figliola and Gonsalves, was Amatore Pignatelli, the husband of Theresa Pignatelli, Mrs. Figliola’s girlfriend. Although Mrs. Figliola spoke of having to go to the police station that day, she had not in fact been interviewed that day, nor had Officer Bennett contacted her to come in that day. Officer Bennett testified that, despite Mrs. Figliola’s speaking in the intercepted conversations of looking at photographs during her contact with the police, he was not aware of anyone showing her photographs.

[ 80 ] Officer Bennett came from the point of view that he and his colleagues had never led Mrs. Figliola to believe she was a suspect. The officers had not intended to leave her with that impression, despite the fact that, in reality, she was either their number 1 or 2 suspects. Officer Bennett agreed with counsel that their investigative theory was that Mrs. Figliola had hired somebody to kill her husband.

[ 81 ] As to the possibility of recording their interactions with Mrs. Figliola on August 27 th , 2002, he has no particular reason as to why they did not. Officer Bennett had no specific recollection of the protocol referenced to in Exhibit #5 . He did; however, remember Justice Campbell’s belief as expressed in the Ontario Major Case Management Manual that recordings should be made of interviews with suspects. Officer Bennett would have read Exhibit #5 before his interview of Mrs. Figliola in September of 2002.

[ 82 ] Officer Bennett acknowledges that in that interview of September 9 th , 2002, the only caution he gave Mrs. Figliola was late in the interview (at page 28) when he stated that “you don’t have to talk to me if you don’t want to” which she confirmed having been told. He stated in the interview that he had told her that right at the beginning (presumably the initial contact he had had with her). Officer Bennett agreed that he had been advised by Assistant Crown Attorney Skarica that Mrs. Figliola should not be interviewed at the police station. He certainly had not been told to not interview Mrs. Figliola at the police station without a caution. Officer Bennett confirmed that during the intercepts that the police were aware that Maria Figliola had left a numerical message for Mark Swietek, and that Swietek was associated with Daniel DiTrapani.

[ 83 ] Geoffrey Gonsalves was using steroids obtained through Swietek . Swietek was trafficking in some illegal substances for both Maria Figliola and Gonsalves.

APPLICABLE LAW

[ 84 ] The legal analysis referred to in the “Ruling as to Voluntariness of a Statement” released June 15, 2012 is applicable to the statements of 2002.

[ 85 ] Similar issues arise; namely, the absence of a caution and police trickery. An issue related to the notion of investigative fairness presents with respect to the impact of the reference by Officers Bennett and Harab to the cassette recording from the locked gun locker of the deceased. The actual contents of that recording had not been employed before in the interaction with Mrs. Figliola.

Absence of a Caution

[ 86 ] As the previous analysis revealed, the absence of a caution is one of the factors in the assessment of the constellation of factors relevant to voluntariness. There is also a sense that there is a correlation between the giving of a caution and the status of the individual being interviewed. The zenith being; the arrested or detained individual who is entitled to know why he is under arrest or detained. This has been described as the most vulnerable position the individual can be in the interaction with the state.

[ 87 ] Although there are published guidelines such as the Ontario Major Case Management Manual, referring to a suspect requiring a caution, there is a paucity of precedent that requires both caution and status notice be mandatory. This is no doubt because the concept of “suspect”, can be quite broad, and the counter-productive nature in the course of an ongoing investigation of so advising a person being investigated. Obviously being advised as to your status as a suspect would inform even the most intellectually deficient that your future behaviour and words would be of official interest.

[ 88 ] Given the inherent conflict between the two societal goals of respect for the individual’s rights to not speak to the police versus the need to investigate and solve crimes, it is unlikely that a definitive statement would be made as to the necessity for a caution given that someone is a suspect. Inevitably each case has to be determined on its merits.

Police Trickery

[ 89 ] As mentioned previously, Justice Iacobucci in R. v. Oikle (2000) S.C.R. 3 recognized the practical necessity for the police to demonstrate some shrewdness in their dealings with suspected criminals. It would be naïve to think that all persons who breached the criminal law would otherwise have a moral framework that could be appealed to. It is rare that saints commit crimes. The very fact of criminal activity presupposes an absence or flexibility as to moral issues. The “gold standard” though for the limits of police behaviour in relating to such persons, is that the behaviour not be so appalling that it would shock the community. (Ibid, at para. 65).

[ 90 ] Justice Iacobucci treated “police trickery” as a “distinct inquiry”. An inquiry which was still related to voluntariness but with the specific objective of maintaining the integrity of the criminal justice system. This mandates an inquiry beyond the reliability of the statement obtained, as to whether the police behaviour which caused the statement was of such a heinous nature that it would cause the objective citizen to doubt the reliability of the statement in the first instance (Ibid, at paras. 65 and 66).

[ 91 ] The negative examples Justice Iacobucci wrote of were: a) a police officer pretending to be a chaplain or a legal aid lawyer (a lie relative to the status of the person the accused speaks to) and b) injecting a diabetic accused with truth serum under the guise of administering insulin (intrusive physiological behaviour).

[ 92 ] What are possible acceptable tactics (keep in mind, R. v. Oikle was not an attempt to create a definitive list of dos and don’ts) are: a) offers of psychiatric help as long as the furnishing of such aid is not tied to the production of the statement (para. 78), b) moral inducements (para. 79), c) failing to tell a suspect that the results of a polygraph test are inadmissible, and d) lying about or exaggerating the accuracy of the polygraph (para. 99).

[ 93 ] Justice Rutherford in R. v. Chenier (2001) O.J. No. 5979 (S.C.J.) re-iterated Justice Iacobucci’s observation as to police latitude relative to the Marquess of Queensbury rules. His Honour spoke of a police entitlement to “use investigative techniques including deception as long it does not constitute abusive or objectionable conduct incompatible with fundamental justice” (para. 32).

[ 94 ] (Justice Rutherford also stated relative to the previous topic that “the police are certainly not obliged to disclose everything they know or suspect about a person before asking him questions” (para. 33)).

[ 95 ] Justice Rutherford quoted Justice Scollin on the Manitoba Court of Queen’s Bench in R. v. Skinner (1992) 1992 4015 (MB QB) , 17 C.R. (4 th ) 265 (pages 275-276) who cautioned jurists against considering themselves “arbitrators of good taste or preferred methods of investigation”. Justice Scollin also believed that a court should not be so indulgent “as to preserve the accused from himself and his own untrammelled tongue”.

[ 96 ] Apparently in R. v. Miller (1991) 5. O.R. (3d) 678, the Ontario Court of Appeal drew a distinction between “tricks” and “dirty tricks” (referred to by Rutherford J. at para. 33).

[ 97 ] Again all of the above illustrates that the assessment of police conduct is to be measured with a degree of realism in the particular context.

The Use of Unconstitutionally Obtained Material in an Interview

[ 98 ] In R. v. Wittwer (2008) 2. S.C.R. 235, Justice Fish wrote for the court as to the implications of investigators using previous statements acknowledged to be unconstitutionally admissible, in a third interview of an accused. Essentially, the judgment is a discussion as to the consequences of “tainting”.

[ 99 ] The interviewing officer had tactically employed admissions made by the accused on prior occasions when the accused had not been effectively given his right to counsel, to gain an admission with respect to sexual interference of a third victim.

[ 100 ] Justice Fish wrote “(i)n considering whether a statement is tainted by an earlier Charter breach, the courts have adopted “a purposive and generous approach”. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct”.

[ 101 ] The court proceeded to find that the subsequent statement had in fact been tainted and its exclusion was merited. Justice Fish wrote “to hold otherwise is invite the perception that police are legally entitled to reap the benefit of their own infringements of a suspect’s constitutional rights. And thus in my view would bring the administration of justice into disrepute” (para. 26). (emphasis added)

[ 102 ] Similar comments were made by Chief Justice McLaughlin and Justice Charron in R. v. Grant 2009 SCC 32 () , [2009] 2 S.C.R. 353 at paragraphs 91-93 , discussing the admissibility of statements not obtained in conformity with the Charter. Generally speaking, such statements are excluded unless the breach could be described as tantamount to a technicality.

[ 103 ] This recognition of the inability of the police to profit from unconstitutionally obtained evidence is clearly recognized in the jurisprudence as to the admissibility of evidence obtained through a search warrant and Part VI Authorizations. As referred to in the ruling of this court released August 2 nd , 2012 with respect to the admissibility of cell phone records obtained by a search warrant, the unconstitutionally obtained evidence has to be excised from the ITO (see paragraphs 38 and 39).

[ 104 ] On a motion to have statements declared as being voluntarily made and consequently admissible, it may be that some statements are so found and others are not. It’s not unheard of that portions of a statement may be, on agreement, considered prejudicial or found by the court to be so, so that those portions are excised from the statement in question. Logically, excision may present in the appropriate cases as a means of dealing with usage of unconstitutionally obtained evidence.

ANALYSIS

The Absence of a Caution:

[ 105 ] Maria Figliola had been cautioned in the past (ie. 2001), with respect to the potential evidentiary implications of talking to the police.

[ 106 ] In the interview of September 2 nd , 2002, she had received, according to Sergeant Harab, a “soft caution”. Her remarks in response suggested that she had been advised by family and friends to not go alone to speak with the police. In other words, she was cognizant of the risks associated with speaking to the police.

[ 107 ] Officer Bennett, in the latter part of the interview on September 9 th , 2002, spoke of the fact that she did not have to talk to him if she didn’t want to. Again, her responding remarks to this rather late caution were indicative of a person who was aware of her right to silence.

[ 108 ] The statements of September 3 rd and 9 th , were almost a year after she had been interviewed by Officers Bennett and Gordon. This Court has found that she was sufficiently cautioned during the statements of 2001. There were no indicators of her having forgotten that there were potential repercussions to talking to the police; if anything, there were contra indications.

[ 109 ] It cannot be said that the presence or absence of a caution had any impact on the voluntariness of her statements.

Police Trickery:

[ 110 ] The tactical approach of Officers Harab and Bennett in 2002 was to portray their colleague, Officer Gordon, as being removed from the case. The implication being that the latter had somehow been unprofessional or incompetent, such that they apologized for his behavior. Furthermore, the new tack was that the murder of Frank Figliola was perpetrated by someone trying to get back at Maria Figliola for her embezzlement at her former employer, CIBC. The object of this approach was to regain the confidence of Mrs. Figliola in the police “working with her”.

[ 111 ] The professed apology for the actions of the former colleague was false, but somewhat ingenious. The police had not heard from Mrs. Figliola for some 11 months, she certainly was not hounding them to find her husband’s killer. She knew from her emotional conversation with Russ Gordon in September 2001, someone considered her a suspect. As, indeed, the police did. Yet, she possibly, with the passage of time, thought that matters had “blown over” in the sense that they were not acting upon or treating her, as a lay-person would think, the police would treat a suspect.

[ 112 ] This sacrificing of their colleague was an effective “bridging”. It was not a deception that would necessarily provoke Mrs. Figliola to “tell all”, but it was a smooth way to resume contact. It is not a deception that shocks the conscience of the community, it is a means of resuming contact with a shrewd, possibly street-smart individual.

[ 113 ] As it was, the interceptions between Mrs. Figliola and Geoffrey Gonsalves immediately after the first unannounced contact on August 27 th , 2002, with the police, revealed that Mrs. Figliola had not abandoned her suspicions as to her being part of the investigation. She and Mr. Gonsalves fretted about her being under surveillance, whether the surveillance would be immediate or limited to the weekends. She mused about disposing of the cell phone, the existence of which she had gone to great lengths to deny in the contacts with the police in 2001. She fretted privately, but acted as the cooperative widow in coming to the police station to be interviewed.

[ 114 ] In the interview of September 3 rd , 2002, Mrs. Figliola denied knowledge of Mark Swietech, Daniel DiTrapani, or “Reno” Amatore Pignatelli, the husband of her best friend. She denied being in an amorous relationship.

[ 115 ] In the interview of September 9 th , 2002, Maria Figliola volunteered to contact the “Mark” she knew from her health club to have him go to Officer Bennett. This was while all the time, according to her intercepted conversations, knowing full well who Mark Swietech was.

[ 116 ] The intercepts actually provide insight into the viewpoint of Mrs. Figliola as to the police investigation and the interviews in question. She demonstrates a remarkable shrewdness in avoiding any potential problematic areas.

[ 117 ] Police trickery, per se , was not impacting upon the voluntariness of assertions. If anything, her interaction with the police was like her playing “dodge ball”. She was quite adept at avoiding the ball.

The Use of Unconstitutionally Obtained Material:

[ 118 ] As noted, on August 27 th , 2002 and September 3 rd , 2002, the officers played an excerpt of the cassette conversation obtained from the gun locker. That evidence was found to be admissible using the s. 24(2) analysis. The police would have no idea at the time of these interviews that the contents of the locked gun locker would be found by the court to be unconstitutionally obtained and yet admissible under s. 24(2).

[ 119 ] This was not a case, as in R. v. Wittwer of deliberate and intentional use of known unconstitutionally obtained evidence. Having said that, R. v. Willis , 1992 2780 (ON CA) , [1992] O.J. No. 294 had been decided almost a decade before. Officers Gordon and Bennett had obtained Mrs. Figliola’s uninformed consent to the removal of the contents of the locker.

[ 120 ] As Justice Fish stated in R. v. Wittwer , there does not have to be a causal connection between the illegally obtained evidence and the ultimate statement.

[ 121 ] What the issue comes down to is: is investigative fairness evoked? Are the police profiting from what they obtained illegally? There is an objective unfairness to an accused in an interview process having to respond to evidence which potentially is not admissible. In a way, by her giving tacit, uninformed approval to the removal of these items, she was conscripted against herself when interviewed. She was, as an uninformed citizen, providing evidence of which she had no idea, that its contents could be used to incriminate her.

CONCLUSION

[ 122 ] The absence of a caution and the failure to tell Mrs. Figliola that she was a suspect does not raise a reasonable doubt as to the voluntariness of the statements of Mrs. Figliola, nor does the police tactic of falsely castigating their colleague and professing a “new tack” raise such a doubt.

[ 123 ] The reference in the statements of August 27 th , September 3 rd and September 9 th , 2002, to the contents of the gun locker are problematic, in that unconstitutionally obtained evidence was introduced into these interviews. Although Mrs. Figliola’s response to this evidence was not particularly inculpatory in nature, fairness dictates that these portions of the statement not be used against her. Accordingly, any references within such statements shall be deleted.

WHITTEN J.

Released: September 05, 2012