COURT FILE NO.: 7191

DATE: 2012-01-05

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen, Applicant

and

Steven Boone and Noel Bowland, Respondent

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL: A. Rajna, for the Crown

S. Reid, for the Respondent, Steven Boone

C. Fromstein, for the Respondent, Noel Bowland

HEARD: November 29, December 6, 7, 8, 2011

PRE-TRIAL RULING NO. 1

admissibility of statement of steven boone

[1] Steven Boone and Noel Bowland are charged with two counts of aggravated sexual assault on K.D. and C.S. on March 28, 2010. Mr. Boone faces an additional count pertaining to C.S. on March 27, 2010. The alleged offences are said to have occurred in the City of Kitchener.

[2] The defendants and the complainants are gay men. They engaged in consensual sexual acts. The defendants are diagnosed as HIV positive. The primary issues at trial, as I understand the case, will be:

a) whether the defendants disclosed their HIV positive status to the complainants in advance; and

b) whether the complainants would have participated in unprotected sexual acts had they been aware of the defendants’ status.

[3] Mr. Boone was interviewed by a member of the Ottawa Police Service on May 6, 2010. Crown and defence counsel seek a ruling as to the admissibility of Mr. Boone’s statement based on voluntariness and Charter compliance.

Voir Dire

[4] A voir dire was held on the dates specified above. Completion was delayed as a result of ongoing Crown disclosure. Three witnesses testified:

i) Detective O’Connell

ii) Sergeant McGetrick; and

iii) Mr. Boone.

Focus

[5] In terms of voluntariness and Charter compliance, the focus is with the following events:

i) officer’s visit in cell block;

ii) police failure to comply with remand warrant;

iii) missing minute on video statement;

iv) exchange between officers as to same;

v) rights to counsel and caution as to Waterloo charges; and

vi) officer’s comment as to Mr. Boone exercising his right to silence.

Evidence

i) Initial Ottawa Investigation

[6] Ottawa Police Service received a complaint regarding Mr. Boone on April 30, 2010. Sergeant McGetrick, then with the Partner Assault Unit, was assigned the lead investigator on May 3, 2010. She reviewed the investigative records, then involving a single event.

[7] On May 5, 2010, the decision was made to arrest Mr. Boone. Sergeant McGetrick made reference to other persons possibly being at risk given Mr. Boone’s HIV positive status. The officer was also aware of a warrant for the arrest of Mr. Boone in Waterloo regarding three counts of aggravated sexual assault.

[8] A Feeney warrant was obtained and officers attended Mr. Boone’s residence. Mr. Boone was not at home.

ii) The Arrest

[9] Sergeant McGetrick called Mr. Boone on his cell phone at 11:32 p.m. on May 5, 2010. She requested a meeting. Mr. Boone asked if he was going to be arrested. The officer responded in the negative, being concerned Mr. Boone would not show up for the meeting if he knew the truth. A meeting was arranged at a local Tim Horton’s restaurant.

[10] Mr. Boone was a passenger in a motor vehicle operated by a friend. On arrival at the restaurant, he did not see the officer and decided to order a coffee and wait in the parking lot. The vehicle entered the drive through lane for this purpose. At this point, two police vehicles immediately blocked their passage.

[11] Sergeant McGetrick, along with several officers from the tactical unit, conducted a “high risk takedown”. At approximately 12:25 a.m. on May 6, 2010, Mr. Boone was placed under arrest. Sergeant McGetrick reported informing Mr. Boone the arrest was for one count of aggravated sexual assault and one count of breach of probation. Further, she said Mr. Boone was told of a warrant for his arrest in Waterloo for three counts of aggravated sexual assault. Sergeant McGetrick then proceeded to deliver the rights to counsel and caution in the usual manner.

[12] Mr. Boone reported Sergeant McGetrick asking if he was aware of a warrant for his arrest in Waterloo. He was then placed under arrest and was told by the officer the charges were aggravated sexual assault and breach of probation. Mr. Boone said he assumed the charges were from Waterloo as Sergeant McGetrick did not specify any place.

[13] Mr. Boone went on to say he was overwhelmed by the manner of arrest by the tactical unit and, as a result, was not paying close attention to what Sergeant McGetrick was saying to him. Mr. Boone did not recall being informed of his rights to counsel but reported the officer saying something about contacting a lawyer.

[14] Mr. Boone was transported to the police station and placed in a holding cell.

iii) Mr. Boone Speaks to Lawyer

[15] Mr. Boone spoke to a lawyer on two occasions, shortly after arrest and later in the afternoon following his return from bail court.

[16] At the time of the initial conversation, Mr. Boone said he understood that he was facing a charge of aggravated sexual assault in Waterloo. In bail court, Mr. Boone reported being informed of an Ottawa charge for aggravated sexual assault. When speaking to the lawyer after bail court, Mr. Boone said he was now not sure what was going on with the Waterloo charges.

iv) Visit at Holding Cell

[17] At the request of Mr. Reid, the videotape for the holding cell area was retrieved by the Ottawa Police Service.

[18] In her testimony at the preliminary hearing and initially on this voir dire, Sergeant McGetrick reported there was no contact with Mr. Boone following his arrest and until the interview later that night.

[19] The holding cell video revealed a visit occurring at approximately 12:27 to 12:30 p.m. on May 6, 2010. Sergeant McGetrick saw this video shortly before the voir dire continued following the adjournment. She had no recollection of visiting Mr. Boone and no memory of the conversation. Sergeant McGetrick could only “speculate” the meeting was to inform Mr. Boone he would be going to bail court. Indeed, he was escorted from his holding cell for that purpose at 12:58 p.m. The officer testified that she never makes promises, threats or inducements to persons detained in custody.

[20] Mr. Boone acknowledged the conversation involved his going to bail court. He also said Sergeant McGetrick informed him that he would return to the police station after court to provide his statement and then be released from custody.

v) Bail Court

[21] At bail court, Mr. Boone was remanded in custody to appear on May 10, 2010. A transcript of the proceeding was not provided. However, there is no dispute the remand warrant issued on the court appearance directed the police officers to deliver Mr. Boone to the regional detention centre. Instead, he was escorted back to the police station and placed in the holding cell.

[22] Sergeant McGetrick did not conduct an interview of Mr. Boone following the arrest as, she said, there was insufficient time to prepare. The officer had been on duty since 7:00 a.m. on May 5, 2010, and needed to rest before the interview. She also indicated the need to complete paperwork. In result, Sergeant McGetrick was concerned with Mr. Boone appearing in court within the requisite twenty-four hours and, hence, the decision was made to send him at the time it occurred.

[23] Sergeant McGetrick was expecting Mr. Boone to be returned to the police station following the court appearance. She did not see the remand warrant and was unaware of the requirement to transport Mr. Boone to the detention centre. Sergeant McGetrick acknowledged never having a defendant returned to the police station in the past.

vi) The Interview

[24] Mr. Boone was escorted from his holding cell at 8:29 p.m. on May 6, 2010 to meet with Sergeant McGetrick.

[25] The videotape reports the commencement of the interview at 8:27 p.m. There appears to be some discrepancy in the various clocks. The interview takes approximately two hours. On completion, Mr. Boone is escorted back to his holding cell. He was delivered to the detention centre the next day.

vii) The Missing Minute

[26] The initial part of the interview was not recorded. Approximately one minute is missing.

[27] Detective O’Connell was in the monitor room for the interview. She has been involved in hundreds of interviews but, for some unknown reason, failed to push the record button. The officer has no memory of subsequently engaging the videotape.

[28] The video statement commences with Sergeant McGetrick informing Mr. Boone he is under arrest for the ten counts of aggravated assault and two counts of breach of probation.

[29] Neither officer initially made notes of the conversation occurring in the unrecorded time period.

[30] Mr. Boone reported a conversation with Sergeant McGetrick on the way to the interview room. He said he informed the officer he was not sure if he wanted to give a statement anymore. In response, Mr. Boone indicated Sergeant McGetrick told him not to worry, that if he gave her the information she needed, he would be released from custody.

[31] Further, in the unrecorded time in the interview room, Mr. Boone stated Sergeant McGetrick assured him he would be going home after answering her questions.

viii) The Officers’ Exchange

[32] On May 12, 2010, Sergeant McGetrick discovered the initial part of the interview was not recorded. She delivered an email to Detective O’Connell, saying:

Hi Allie,

I copied the BOONE interview for Waterloo and discovered that you did not start recording the interview until after BOONE and I were in the interview room. I clearly gave BOONE an introduction upon entering the room, my name, date, time, his name, fact that the interview was being monitored. This was not recorded on the tape and is not indicated in your IA. Your IA starts when the tape starts, at me advising him what he is under arrest for. The missed information is vital and should be at least recorded on your IA. You will have to add an amended IA to reflect what was missed in your initial IA. Let me know when this is done.

Thanks,

Nicole

[33] Detective O’Connell replied on the same date as follows:

On the 12th May, 2010, Det O’Connell was advised by Sgt McGetrick that she viewed the recorded accused interview with Steven BOONE and her entrance into interview room 042P with accused was not recorded. Det O’Connell was the scribe for the interview and was witness to the entrance of the accused and Sgt McGetrick in room 042P. Det O’Connell witnessed Sgt McGetrick introduce herself to the accused and told him that the interview was being audio/video recorded. The accused laughed slightly and pointed to the video camera over his left shoulder. The following was not written into the statement summary notes. Det Standing was also inside the recording room with Det O’Connell.

[34] For some unknown reason, Sergeant McGetrick did not receive this response from Detective O’Connell. Following the preliminary hearing on January 8, 2011, Sergeant McGetrick informed Detective O’Connell that she would have to explain the missing part of the interview. The email was located.

[35] Both officers were aware of the usual witness exclusion orders at a preliminary hearing and that witnesses are not to discuss evidence.

ix) Rights to Counsel – Interview

[36] As previously mentioned, the video statement commences with the officer referring to the ten charges of aggravated sexual assault. These are the Ottawa charges. Rights to counsel and caution are then read to Mr. Boone. In so doing, Sergeant McGetrick made reference to an “outstanding arrest warrant” (page 3).

[37] The interview, for the most part, pertains to events in Ottawa. At the mid-point (page 34), Sergeant McGetrick says to Mr. Boone: “You know that there’s an arrest warrant for you in Waterloo Regional. What’s that all about?” Mr. Boone declined to respond. The officer would later return to the Waterloo charges (page 49) and engage Mr. Boone in a discussion.

[38] Sergeant McGetrick did not provide any further information to Mr. Boone, save to respond to his question as to why there were three charges. A second rights to counsel and counsel were not read to him.

x) Officer’s Comment

[39] During the interview, Mr. Boone would decline to answer a number of questions, making reference to legal advice he had received.

[40] Sergeant McGetrick would continue to ask questions. At p. 37 of the transcript, the following exchange occurs:

Q. Okay. What’s the youngest guy you’d sleep with?

A. I don’t know. I – I’m not gonna – I really shouldn’t make any more statements.

Q. Okay. So how long ago did you hook up with M.C.?

A. I’m not gonna make any more statements.

Q. Okay, you don’t have to answer anything I’m gonna keep talking, okay. Maybe you’ll choose to – to make a statement regarding something. Did you tell M.C. that you’re H.I.V. positive?

A. I’m not gonna make any more statements.

Q. Okay. I’m guessing by saying that you didn’t.

A. I’m not gonna make anymore statements.

[41] There is no dispute the officer’s comments regarding exercising the right to silence was improper.

Discussion

[42] For the most part, the interview conducted by Sergeant McGetrick is a model of professionalism. She treated Mr. Boone with respect and dignity. In so doing, the officer succeeded in engaging Mr. Boone in a discussion. Nevertheless, there are a number of problems arising before and during the interview as previously identified.

[43] Each event, save for that involving the remand warrant, is insufficient alone to seriously question voluntariness. The cumulative effect, however, provides a greater challenge to the Crown.

i) The Missing Minute

[44] It is unfortunate neither officer made detailed notes of the interview. No doubt, they expected a complete recording.

[45] The explanation, as to the tape delay, by Detective O’Connell is reasonable. Mistakes happen. The onus is then on the officers to explain as to what occurred in the untaped portion of the interview.

[46] I am not persuaded as to the accuracy of Mr. Boone’s version. It would be highly unlikely for an experienced police officer to promise release, particularly in an interview room when a video was expected to be operating. Nevertheless, there is an evidentiary gap. The officers provide a brief account of events in this missing minute. But, questions arise due to the manner in recording same, as next considered.

ii) Officers’ Exchange

[47] When the missing portion is discovered, Sergeant McGetrick immediately made inquiry. Her email to Detective O’Connell, in my view, was improper as it provided the expected response. The subsequent meeting, following the preliminary hearing, was also improper. These events bring into question the independence of memories. The exchange could easily have been accomplished without clouding the issue.

iii) Holding Cell Visit

[48] The three minute visit at the holding cell is of concern. Sergeant McGetrick was candid in saying she had no recollection of the event or of what was discussed. Notes should record every exchange with an individual in custody.

[49] Once again, I am not persuaded by Mr. Boone’s version of the conversation. However, a doubt exists as the officer can only “speculate” the visit was to address going to bail court. In result, there is a question as to whether the Crown has met the evidentiary onus.

iv) Sufficient Information – Waiving Counsel

[50] In her evidence, Sergeant McGetrick was clear in making reference to the Waterloo warrant at the time of arrest. Mr. Boone was unsure.

[51] I accept Mr. Boone’s evidence as to being overwhelmed on arrest. Although having some dealings with police officers in the past, a high risk takedown would have been a traumatic event for him and could well have impacted on his focus and perception of what the officer said.

[52] Sergeant McGetrick was of the view Mr. Boone understood the reasons for his detention and, further, he did not exhibit any confusion necessitating a further explanation. I am not certain such was the case, particularly given the nature of the arrest. The onus is on the officer to be certain the detained person fully understands.

[53] During the interview, Sergeant McGetrick made a passing reference to the Waterloo warrant. No further information was provided, other than responding to his question as to why there were three charges.

[54] The issue is whether Mr. Boone had “sufficient information”: see R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714 (S.C.C.), at para. 28; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869 (S.C.C.), at paras. 35 and 47; and R. v. Swatsky (1997), 1997 CanLII 511 (ON CA), 118 C.C.C. (3d) 17 (Ont. C.A.).

[55] Sergeant McGetrick wanted to inquire as to two distinct matters, the Ottawa and the Waterloo charges. Both involved allegations of aggravated sexual assault. However, the factual underpinnings are different.

[56] I am not persuaded Mr. Boone was provided with sufficient information so that he could make an informed decision on waiving his rights to counsel. Brief factual information could easily have been provided as the officer had the warrant.

v) Officer’s Comments

[57] Counsel acknowledge Sergeant McGetrick’s comment regarding exercising the right to silence was improper. I agree.

[58] Mr. Boone declined to respond to the officer. This suggests her comment was not persuasive.

vi) The Remand Warrant

[59] Failure to comply with the remand warrant is troubling.

[60] I accept Sergeant McGetrick’s evidence as to being unaware of the requirement to transport Mr. Boone directly to the detention centre following his court appearance. An experienced police officer should understand such is the mandatory direction as provided in the remand warrant and section 516, Criminal Code. Such events occur almost daily, particularly in a community like Ottawa.

[61] It appears two other officers also ignored the court order, the transporting officer and, presumably, the officer in charge of the holding cells.

[62] In my view, returning a person in custody to the police station is unacceptable. A police officer’s good faith cannot be claimed when it is based on ignorance of authority or on the law: see, for example, R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 (S.C.C.). Police officers are presumed to know the law as set out in the Criminal Code.

[63] Counsel referred to R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 18 O.R. (2d) 714 (Ont. C.A.). Martin J.A. commented on unwarranted detention as a relevant circumstance in determining whether the Crown has met the onus of proving the statement voluntary.

[64] Precourt predates the Charter. In my view, the consequences of a breach are now elevated, particularly when it involves a court order.

[65] Simply put, had the officers complied with the remand warrant, as they are required to do, the interview would not have occurred.

[66] There must be consequences for breaching a court order.

Conclusion

[67] In all of the circumstances, I am not satisfied the Crown has met the onus of proving Mr. Boone’s statement to be voluntary. The breach of the remand warrant alone negates voluntariness. The cumulative effect of the other events supports a similar finding.

[68] Accordingly, Mr. Boone’s statement is not admissible at trial.

D.J. Gordon J.

Released: January 5, 2012