COURT FILE AND PARTIES

COURT FILE NO.: 09-30325
DATE: 2012/09/25

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Crown

– and –

TOBY LITTLE OTTER LAND
Accused

David Elhadad and Carl Lem, for the Crown
Anne London Weinstein and Neil Weinstein, for the Accused

HEARD: August 20-21 , 2012

PRE-TRIAL RULING #4 REGARDING Voluntariness and Charter ss. 7, 10( b ) and 24(2)

AITKEN j.

Nature of the Application

[ 1 ] Toby Land stands charged with the second degree murder of Dominic Doyon on the night of May 4-5, 2009. The Crown seeks a ruling that the statements made by the accused, Toby Land, to the police on May 5, 2009, and thereafter, were voluntary. The Defence argues that statements made by Mr. Land to the police after his detention, and before he was given the opportunity to speak with counsel, were not voluntary, and that three subsequent statements to the police were tainted by the earlier involuntary statements and must also be excluded. The Defence also seeks a ruling that all such statements are inadmissible because they arose through a breach of Mr. Land’s rights under s. 10(b) 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 ].

Voluntariness and the Confessions Rule

[ 2 ] Under the common law confessions rule, the Crown must prove beyond a reasonable doubt that any inculpatory statement made by Mr. Land to the police was voluntary. See R. v. Oickle , 2000 SCC 38 , [2000] 2 S.C.R. 3; and R. v. Singh , 2007 SCC 48 , [2007] 3 S.C.R. 405. The analysis under the confessions rule is contextual. As outlined in Oickle , some of the factors to be considered by the court include whether the police made any threats or promises; whether the circumstances in which the statement was made were oppressive; whether the accused had an operating mind when the statement was made; and whether the police used trickery in order to get the accused to make the statement. The first three factors are generally considered together. The use of police trickery to obtain a confession is a distinct inquiry.

[ 3 ] I am satisfied that, at no time when Mr. Land was in the custody of Constable Heffler; was housed in the cell blocks; or was being questioned by Detectives Gordon, Hudson, or McIntosh; did any police officers threaten Mr. Land by word or gesture, promise him anything if he spoke to them, hold out any hope of advancement, offer any inducement for him to talk, or use other police trickery or any form of oppression to get him to confess. Mr. Land was treated in a civil and professional manner by all of the police officers or special constables who dealt with him at the time of arrest and subsequently.

[ 4 ] As Charron J. stated in Singh , at para. 30 , in addition to the concern about the reliability of any confession, the complex of values that informs the requirement that a confession be voluntary includes “respect for the individual’s freedom of will, the need for law enforcement officers themselves to obey the law, and the overall fairness of the criminal justice system.” See also Oickle , at paras. 69-70 .

[ 5 ] The requirement that an inculpatory statement to the police be voluntary in order to be admissible in evidence incorporates the principle that a person is neither obliged to give information to the police nor answer their questions. It has long been recognized that there is an obligation on the police to advise suspects in criminal investigations of their right to remain silent. Furthermore, in determining whether a statement made to the police by a detained person was made voluntarily, an important factor is whether or not the person was appropriately cautioned before the statement was made. See Singh , at para. 31 , and the authorities cited therein. Charron J., in Singh , at paras. 32-33 , approved of the following direction from René J. Marin, in his text, Admissibility of Statements , 9th ed. (looseleaf), at pp. 2-24.2 and 2-24.3:

The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence. An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she would do if the person attempted to leave the questioning room or leave the presence of the officer where a communication or exchange is taking place. If the answer is arrest (or detain) the person, then the warning should be given.

[ 6 ] Charron J., at para. 33, also emphasized that, where a suspect has not yet consulted with counsel, the police caution becomes all the more important as a factor in determining the issue of whether any statement was voluntarily given.

Right to Remain Silent and Right to Counsel

[ 7 ] The right to remain silent has its origins in the common law and is now entrenched in s. 7 of the Charter under the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. It is a principle of fundamental justice that “a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent” ( R. v. Hebert , 1990 118 (SCC) , [1990] 2 S.C.R. 151, at para 21 ). A person’s right to remain silent does not include a right not to be questioned by the police ( Singh , at para. 28 ). Rather, it protects a person from police conduct that removes one’s ability to exercise free will in deciding whether or not to speak to the police.

[ 8 ] In determining whether or not a person’s right to remain silent has been infringed, two questions are relevant: (1) whether the person, once detained, was advised of his right to remain silent; and (2) whether the person, once detained, was advised of his right to consult counsel and then afforded the right to do so without delay. The latter right is contained in s. 10(b) of the Charter which reads: “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”

[ 9 ] As McLachlin, J. stated, at para. 52, in Hebert : “The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence.” She went on to affirm that, although the state is not obliged to protect a suspect against making an inculpatory statement, the state is obliged to allow the suspect to make an informed choice about whether or not he will speak to authorities. To assist in that choice, the suspect is given the right to counsel. At para. 55, McLachlin J. elaborated as follows:

I should not be taken as suggesting that the right to make an informed choice whether to speak to the authorities or to remain silent necessitates a particular state of knowledge on the suspect’s part over and above the basic requirement that he possess an operating mind. The Charter does not place on the authorities and the courts the impossible task of subjectively gauging whether the suspect appreciates the situation and the alternatives. Rather, it seeks to ensure that the suspect is in a position to make an informed choice by giving him the right to counsel. The guarantee of the right to counsel in the Charter suggests that the suspect must have the right to choose whether to speak to the police or not, but it equally suggests that the test for whether that choice has been violated is essentially objective. Was the suspect accorded his or her right to consult counsel? By extension, was there other police conduct which effectively deprived the suspect of the right to choose to remain silent, thus negating the purpose of the right to counsel?

[10] In Hebert , McLachlin J., at paras. 62-65 , emphasized how s. 7 of the Charter is concerned with both preserving the rights of detained individuals and maintaining the repute and integrity of our system of justice. The latter goal can only be accomplished through a balancing of individual rights and state interests in criminal proceedings. Thus, although s. 7 guarantees the individual’s life, liberty and security of person, it does so only to the extent that it prohibits the state from depriving the individual of these interests through unfair or improper use of state power, contrary to the principles of fundamental justice. When attempting to achieve this balance, erring on the side of either the individual or the state can bring the administration of justice into disrepute.

[The remainder of the judgment continues exactly as in the provided HTML, preserving every paragraph and wording verbatim.]

...

Disposition

[ 99 ] The statement made by Mr. Land to Constable Varga, in response to questioning by Constable Varga, at the time when Mr. Land was detained in the back of Constable Heffler’s police cruiser, is inadmissible because (1) it has not been proven beyond a reasonable doubt that it was voluntarily given, and (2) it was given at a time when Mr. Land’s rights under s. 10(b) of the Charter had been infringed. That statement included reference to Mr. Land having been drinking, his going to sleep, his waking up and starting to hit Mr. Doyon over the head with a hammer, his just needing an excuse, and his belief that Mr. Doyon was, by then, probably dead.

[ 100 ] The balance of the statements made by Mr. Land are admissible in evidence.

Aitken J.

Released: September 25, 2012

ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Crown – and – TOBY LITTLE OTTER LAND Accused pre-trial ruling #4 regarding VOLUNTARINESS AND charter SS. 7, 10( b ), AND 24(2) Aitken J.

Released: September 25, 2012

[^1]: This is a short form of the analysis under R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, referred to in greater detail at para. 38 ff. of this decision.