ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-SA-5025
DATE: 20121001
BETWEEN:
HER MAJESTY THE QUEEN – and – DAVID EATON Defendant
James Cavanah, for the Crown
Bruce Engel, for the Defendant
HEARD: September 5, 6, and 7, 2012
Decision on voir dire re: admissibility of a videotaped statement
Toscano roccamo j.
[ 1 ] David Eaton stands charged with the sexual assault of M.J.C.. Ms. M.J.C. alleges that Mr. Eaton had non-consensual sex with her on April 25, 2009, while she was in an extremely intoxicated state.
[ 2 ] In the course of a blended voir dire , I received evidence concerning the admissibility of a videotaped interview. The interview of Mr. Eaton was conducted by Sergeant Todd Harding of the Ottawa Police Service, on August 5, 2009. The interview lasted one hour and thirty two minutes.
[ 3 ] Mr. Eaton served notice of his intention to seek an order, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [ Charter ], for the exclusion of all evidence obtained and observations made during the videotaped police interview. The basis of the order for the exclusion of evidence was that his right to retain and instruct counsel without delay, as guaranteed by s. 10(b) of the Charter , had been breached.
[ 4 ] During the voir dire , however, Mr. Eaton conceded that his Charter challenge was unlikely to survive the requirements for the exclusion of evidence under s. 24(2) of the Charter , as expressed by the Supreme Court of Canada in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353.
[ 5 ] Nevertheless, Mr. Eaton submits that there was a breach of his s. 10(b) Charter right to instruct counsel in that the police failed to inform him of his right to free legal advice before attending at the police interview. He asserts that the police failed to observe the informational component of the constitutional guarantee under s. 10(b) of the Charter , afforded to detainees who, in all cases, must be informed of the existence and availability of duty counsel and legal aid in their jurisdiction, as was first expressed by the Supreme Court of Canada in R. v. Brydges , 1990 123 (SCC) , [1990] 1 S.C.R. 190. Mr. Eaton, therefore, felt compelled and misunderstood the requirement to attend for an interview with the Ottawa Police Service, on August 5, 2009. Accordingly, he submits that the Crown cannot meet its onus of demonstrating beyond a reasonable doubt that his videotaped statement was voluntary.
[ 6 ] The Crown responds that Mr. Eaton’s rights under s. 10(b) of the Charter were not triggered because at no time was he arrested or detained by the police. Although it is acknowledged that a detained person has less freedom, a fact which gives rise to constitutional protections under the Charter , a detainee may still make a voluntary statement to a person in authority. In each case, a finding of voluntariness turns on the facts and is driven by the contextual analysis described by the Supreme Court of Canada in R. v. Oickle , 2000 SCC 38 , [2000] 2 S.C.R. 3. In Oickle , the court laid out the relevant factors to consider, including:
(a) The existence of threats, promises or inducements (paras. 48-57),
(b) Oppression (paras. 58-62),
(c) The lack of an operating mind (paras. 63-64), or
(d) Police trickery of a nature that it denies the accused’s right to silence or shocks the community (paras. 65-67).
[ 7 ] Ultimately, the preeminent concern is whether the right to make a meaningful choice to speak to a person in authority is overborne by the conduct of the police: Oickle , at paras. 38 and 57 ; and R. v. Singh , 2007 SCC 48 , [2007] 3 S.C.R. 405, at para. 33 .
[ 8 ] The Crown further posits that even if Mr. Eaton were detained, which was not admitted, the substance of Mr. Eaton’s affidavit, sworn on July 27, 2012, in support of his Charter application, coupled with his testimony at the voir dire , leads one to conclude that his videotaped statement interview of August 5, 2009, was not only voluntary, but deliberately intended to support his initial denial that he and Ms. M.J.C. had sex on April 24 or 25, 2009. The Crown invites me to find that Mr. Eaton’s evidence on the voir dire is manifestly unreliable and contradictory, and that the evidence of Sergeant Harding on voir dire was, by contrast, both accurate and complete.
Was Mr. Eaton “detained” on August 5, 2009, triggering a s. 10(b) Charter right breach by the police?
[ 9 ] The burden falls upon Mr. Eaton to demonstrate, on a balance of probabilities, that his rights under s. 10(b) of the Charter were breached by way of shortcomings in the information Sergeant Harding provided to Mr. Eaton in advance of or during his videotaped interview of August 5, 2009.
[ 10 ] I find that the evidence does not establish on a balance of probabilities that Mr. Eaton was detained, such as to trigger the rights he asserts under s. 10(b) of the Charter .
[ 11 ] In his affidavit of July 27, 2009, Mr. Eaton indicates that on August 4, 2009, he was contacted by Sergeant Harding, who requested that he attend at the police station for an interview. Mr. Eaton attests that Sergeant Harding refused to tell him the reasons for the interview. Mr. Eaton further states that he then asked if he could have a lawyer present so that he could speak to him, but was told that it was not the police’s responsibility to “find” him a lawyer. Mr. Eaton adds, in his affidavit, that as a result – and since he was busy at work – he refused to speak to the police until instructed to do so by a lawyer. Nevertheless, Sergeant Harding called him back within ten minutes to advise him that he was required to attend for an interview at the police station on August 5, 2009, at 10:00 p.m. Accordingly, Mr. Eaton attests to the belief that he was “ordered” to attend the police station.
[ 12 ] At the outset, I should note that Mr. Eaton testified, at the voir dire , that he deliberately lied to police when he denied having sex with Ms. M.J.C. on April 24 and 25, 2009, notwithstanding having in his possession an e-mail exchange (Exhibit 4) containing evidence that they had had consensual sex. When confronted with this reality, he remarked that he “sometimes tells the truth.” This admission invited careful scrutiny of his evidence on voir dire .
[ 13 ] Mr. Eaton’s evidence at the voir dire was materially different from his affidavit, which makes no mention of any conversation with Sergeant Harding about whether or not he could have free legal advice and about who would pay for legal consultation in advance of or during the police interview. On the one hand, he testified that because he was supporting himself by working for a cell phone business, as well as part-time for a fledgling business promoting bars and clubs, and no longer had the financial backing of his parents, he could not afford to pay for a lawyer and did not know about legal aid. On the other hand, he admitted that he told Sergeant Harding, at the very outset of the interview, that he had in fact spoken to a lawyer from back home. He also testified that he had a commission cheque coming from employment, and had, on at least one previous occasion, chosen to spend between $400 and $500 a night on a hotel for casual sex with another young lady. Despite testifying that “nothing in life was for free”, when questioned about his understanding of the availability of free legal aid, he also testified to a rather sophisticated lifestyle marketing bars, where once or twice weekly he was afforded up to $150 worth of free alcohol for promotional purposes. Although he testified that he was learning disabled and sometimes unable to appreciate the gist of conversation, he agreed that he was not stating that he was unsophisticated, and admitted that throughout the videotaped interview (Exhibit 2) he was both prepared, and engaged. In fact, he arrived at the interview with a note pad and a pen, with which to take notes. I observed that Mr. Eaton was assertive enough to ask Sergeant Harding questions concerning the police’s investigation into Ms. M.J.C.’s allegations. This is despite testifying that Sergeant Harding “yelled” at him at one point in the interview, refusing to answer his questions. The videotaped interview reveals that there was no yelling on the part of Sergeant Harding, who was very clearly solicitous and repeatedly offered Mr. Eaton the opportunity to consult with a lawyer before and throughout the interview. Moreover, Mr. Eaton continued to ask questions later on in the interview, even after Sergeant Harding more forcefully questioned his account of the events.
[ 14 ] Mr. Eaton’s demeanour in the videotaped interview was at odds with his testimony at the voir dire . Mr. Eaton testified that he felt compelled by Sergeant Harding to attend at the Ottawa Police Station and had made “desperate” attempts to contact Sergeant Harding before the interview in order to put him off, due to an inability to consult with a long lost school chum he believe had gone to law school. Given Mr. Eaton’s employment in the cell phone business, Mr. Eaton’s testimony suggesting that he was somewhat flummoxed by the automated Ottawa Police Service telephone system such that he could not leave a message for Sergeant Harding stating that he would not attend the interview was simply not credible.
[ 15 ] More importantly, Mr. Eaton’s evidence at the voir dire , as to the brief conversation with Sergeant Harding of August 4, 2009, lasting approximately two minutes, varied materially with the contents of his affidavit. At the voir dire , Mr. Eaton stated that he asked Sergeant Harding to “provide” him with a lawyer, but paras. 4 and 9 of his affidavit simply state that Sergeant Harding told him that it was not his responsibility to “find” him a lawyer. Mr. Eaton apologized for the error in his affidavit, despite the fact that he had reviewed it with his counsel before signing it.
[ 16 ] Mr. Eaton also admitted that para. 9 of his affidavit suggests that, only after he arrived at the interview and was told the interview would be videotaped, was he informed that the police wanted his version of events related to a sexual assault dating back to April 24 and 25, 2009. Only when pressed on cross-examination, did Mr. Eaton admit that he knew from having been alerted by his roommate, Andrew Conroy, that Ms. M.J.C. had gone to the police, alleging that Mr. Eaton had sexually assaulted her.
[ 17 ] By contrast with Mr. Eaton’s evidence on voir dire , Sergeant Harding’s evidence concerning the circumstances leading up to and during the videotaped interview was cogent, credible, and notably similar in certain respects to that of Mr. Eaton.
[ 18 ] Sergeant Harding testified that when he telephoned Mr. Eaton, he only told him that the police wished to interview him about a sexual assault that happened months ago, involving someone that he knew. Sergeant Harding reasonably explained that he withheld the complainant’s name and details in order to prevent Mr. Eaton from contacting Ms. M.J.C., in advance of the interview, and also to ensure that the details of any conversation with Mr. Eaton were recorded at the police station.
[ 19 ] Sergeant Harding also testified that when the matter of a lawyer was raised by Mr. Eaton, he referred him to the phone book and told him it was not for him to find him a lawyer.
[ 20 ] Sergeant Harding’s evidence of the duration of his conversation with Mr. Eaton was consistent with Mr. Eaton’s evidence that they spoke briefly, between two to three minutes, and discussed the times when they would meet to talk at the Ottawa Police Station. Sergeant Harding testified that Mr. Eaton offered that he was available after work at 10:00 p.m. on August 5, 2009, at a time when Sergeant Harding was not on duty, and therefore, he needed to change his schedule. Sergeant Harding did, in fact, do so, and called Mr. Eaton back ten minutes later, leaving a message advising Mr. Eaton that he had rearranged his schedule. This is entirely consistent with a scenario of collaborative scheduling. Indeed, when this was put to Mr. Eaton in cross-examination at the voir dire , he agreed with the version of events offered in his affidavit, at para. 5, to the effect that, refusing to meet with Sergeant Harding until instructed to do so by counsel makes no sense as Sergeant Harding called back within ten minutes to advise that he had rearranged his schedule to accommodate Mr. Eaton. Mr. Eaton also admitted that the affidavit made no mention of the additional testimony he offered at the voir dire that he had “hung-up” on Sergeant Harding after refusing to come in for an interview before consulting with counsel.
[ 21 ] I find there is simply no merit to Mr. Eaton’s affidavit evidence, suggesting that he was “ordered”, in the telephone message left by Sergeant Harding, on August 4, 2009, to attend at the police station. On cross-examination on the voir dire , Mr. Eaton also admitted that the message only advised him that Sergeant Harding had rearranged his schedule.
[ 22 ] The videotaped interview demonstrates Sergeant Harding thanking Mr. Eaton for attending; at the outset, it also depicts Sergeant Harding telling Mr. Eaton that he was “invited” to attend for an interview to give his version of events; and informing Mr. Eaton that he was free to ask questions, could stop the interview at any time to speak to a lawyer, and that anything he would say could be used against him in court. This is in no way consistent with Mr. Eaton’s assertion that he was “ordered” to attend for an interview and begs the question why he did not simply point out to Sergeant Harding that he felt he had no choice but to attend.
[ 23 ] Finally, notwithstanding Mr. Eaton’s question to Sergeant Harding, near the end of the interview, about whether he could leave after exercising his right to speak to counsel, I find this query on the part of Mr. Eaton does not establish on the balance of probabilities that he was psychologically or otherwise detained by police on August 5, 2009 or that his right to counsel had in any way been breached. I find the evidence is more consistent with Sergeant Harding’s account on voir dire as to what he told Mr. Eaton in the interview. That is, that Sergeant Harding had not formed reasonable and probable grounds to believe that Mr. Eaton was guilty of sexual assault, although he was a suspect; that he did not intend to arrest him; and that he expected him to say that he had had consensual sex with Ms. M.J.C. and simply wanted his version of events because Ms. M.J.C.’s memory of the events of April 24 and 25, 2009, was limited due to her intoxication.
[ 24 ] The Supreme Court of Canada in R. v. Sinclair , 2010 SCC 35 , [2010] 2 S.C.R. 310, held at paras. 42 and 64 , that even a detained person has no right to have counsel present throughout a police interview; as Mr. Eaton purports to suggest in his affidavit, at para. 4.
[ 25 ] However, the Supreme Court also recognized in Singh , at paras. 28 and 8 , respectively, that although the common law recognizes the importance of police questioning in carrying out their investigative responsibilities, if an accused can show on a balance of probabilities that a statement was obtained in violation of his or her constitutional right to remain silent, the Crown will be unable to prove the voluntariness of a statement beyond reasonable doubt. Similarly so, in my view, where the evidence on a balance of probabilities leads one to conclude that the detained person was denied his or her s. 10(b) Charter rights to consult counsel.
[ 26 ] Mr. Eaton has not satisfied me on a balance of probabilities that his s. 10(b) Charter rights were in any way infringed based on his subjective belief or misimpression that he had no choice but to attend for interview by the police on August 5, 2009. Even where, as in the case before me, there is some dispute over the manner in which the interview takes place, in determining whether Mr. Eaton was detained, I have been guided by the non-exhaustive list of factors relevant in determining whether a person, who is subsequently accused, is detained at the time of questioning by the police, as set out in R. v. Moran (1987), 1987 124 (ON CA) , 21 O.A.C. 257, 36 C.C.C. (3d) 225 (Ont. C.A.), at para. 82 , as follows:
The precise language used by the police officer in requesting the person who subsequently becomes an accused to come to the police station, and whether the accused was given a choice or expressed a preference that the interview be conducted at the police station, rather than at his or her home;
Whether the accused was escorted to the police station by a police officer or came himself or herself in response to a police request;
Whether the accused left at the conclusion of the interview or whether he or she was arrested;
The stage of the investigation, that is, whether the questioning was part of the general investigation of a crime or possible crime or whether the police had already decided that a crime had been committed and that the accused was the perpetrator or involved in its commission and the questioning was conducted for the purpose of obtaining incriminating statements from the accused;
Whether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated;
The nature of the questions: whether they were questions of a general nature designed to obtain information or whether the accused was confronted with evidence pointing to his or her guilt;
The subjective belief by an accused that he or she is detained, although relevant, is not decisive, because the issue is whether he or she reasonably believed that he or she was detained. Personal circumstances relating to the accused, such as low intelligence, emotional disturbance, youth and lack of sophistication are circumstances to be considered in determining whether he had a subjective belief that he was detained. [Emphasis in original].
[ 27 ] I would also observe that in R. v. Pomeroy , 2008 ONCA 521 , [2008], 91 O.R. (3d) 261, at paras. 20-21, and 25, the Court of Appeal expressed the view that the concept of detention was not extended to situations where the police do not exercise the right to detain, although authorized to do so.
[ 28 ] Finally, I would note that even where a suspect in a crime is never told he is free to withdraw from a police interview and is not, as in the case before me, fully cautioned as to his right to counsel, this will not necessarily lead to the inference that an accused was pressured to attend: see R. v. Buchanan , 2006 6200 (ON SC) , 38 C.R. (6th) 330 (Sup. Ct.), a 2011 ONCA 194 () , 94 W.C.B (2d) 386 (Sup. Ct.), at paras. 39-41 ; R. v. Saleh , [2009] O. J. No. 5832, at paras. 17 and 19 ; and R. v. E. B. , 2011 ONCA 194 , 94 W.C.B. (2d) 386, at paras. 90-91.
Application of the Voluntariness Factors in Oickle
[ 29 ] On the evidence received, I have no shadow of a doubt that Mr. Eaton chose to speak to Sergeant Harding, and that he knew he was a suspect and offered police information at the interview on August 5, 2009, in order to distance himself from the allegations of sexual assault made by Ms. M.J.C..
(i) Existence of threats, promises or inducements
[ 30 ] I find there is no evidentiary basis on which to conclude Sergeant Harding either made any threats, promises or inducements in the course of his interview of Mr. Eaton, to encourage him to give any statement or explicitly or impliedly offered any quid pro quo in exchange for Mr. Eaton’s cooperation. I also find that Sergeant Harding remained courteous towards Mr. Eaton and, throughout, offered him the right to stop the interview and consult counsel. Moreover, Sergeant Harding terminated, without delay, his interview after Mr. Eaton finally requested counsel once confronted with the potential that the police could secure incriminating DNA evidence.
(ii) Oppression
[ 31 ] I find there is no evidence to suggest the statement obtained from Mr. Eaton on August 5, 2009, was in any way secured in an environment of oppression. Mr. Eaton attended for interview at a time convenient to his schedule; and arrived at the Ottawa Police Station on his own accord, and without police accompaniment. He was not handcuffed or physically restrained. He came prepared with a note pad and a flask of Red Bull. He was fully informed, at the outset of the interview, that he was being videotaped and that his statement could be used against him in court. He was offered the opportunity to ask questions and was repeatedly told that he could stop the interview at any time to speak to a lawyer. He was told that he was “invited” to the interview to give his account of the events in question. His information was solicited with open-ended questions and, notwithstanding his stated belief that Sergeant Harding “blew off” his offer to provide an e-mail exchange with Ms. M.J.C. (Exhibit 4) fully supporting his innocence, he was interviewed methodically, and afforded full opportunity to discuss the e-mail exchange when later asked to provide details. Sergeant Harding only briefly challenged his account and, after advising him of potential DNA evidence, immediately accommodated Mr. Eaton’s request to consult with counsel of his choice in a secure room.
(iii) Operating Mind
[ 32 ] I find there is no evidence that Mr. Eaton did not have an operating mind before or while interviewed by Sergeant Harding. He appeared prepared, responsive and understanding of his right to counsel when he stopped the interview to consult with counsel for about 45 minutes.
(iv) Police Trickery
[ 33 ] Mr. Eaton quite properly conceded that there was no evidence of any form of police trickery that would invite a separate inquiry, distinct from the other factors in Oickle , at paras. 65 and 67 .
[ 34 ] In the result, I find the Crown has met its burden to demonstrate beyond reasonable doubt that Mr. Eaton’s ability to choose whether or not to speak with Sergeant Harding and provide answers to his questions was in no way overborne by any conduct on the part of the police.
[ 35 ] Accordingly, the recorded police interview of August 5, 2009, including all information obtained and observations made, may be received in evidence, at the trial of Mr. Eaton, which is scheduled to proceed on October 1, 2012.
Madam Justice Toscano Roccamo
Released: October 1, 2012
COURT FILE NO.: 10-SA-5025
DATE: 20121001
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – DAVID EATON Defendant Decision on voir dire re: admissibility of a videotaped statement Madam Justice Toscano Roccamo
Released: October 1, 2012