ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20121010

BETWEEN:

HER MAJESTY THE QUEEN Applicant - and - D.F.F. Respondent

Patricia Garcia , for the Applicant/Crown

Harry Doan , for the Respondent

HEARD: March 26, 27, 28, 30, 2012 and September 24, 25, 26 and 27, 2012

Kelly j.

RULING

Re: Voir Dire on the Voluntariness of Mr. D.F.F.’s Statement

[ 1 ] Mr. D.F.F. has been charged with one count of sexual interference and one count of sexual assault on his niece. It is alleged that this occurred when Mr. D.F.F. was 19 years of age and the complainant was 6 years of age.

[ 2 ] Within hours of his arrest, Mr. D.F.F. was interviewed by the police. He told them he had touched the buttocks of the complainant as the complainant described to the police. The statement was videotaped.

[ 3 ] The Crown seeks to rely on a statement made by Mr. D.F.F. as part of its case. Counsel for Mr. D.F.F. submits that the statement of Mr. D.F.F. was not made voluntarily and should be excluded.

[ 4 ] For the reasons set out below, I have concluded that the statement is voluntary and it will be admitted into evidence.

The Facts

[ 5 ] Mr. D.F.F. testified that he and his family had moved from Ecuador to Canada for a better life. At the end of 2003, eleven family members were living in a two-bedroom apartment. Included in that group were the complainant and Mr. D.F.F.. It is during this time that the allegations are said to have occurred.

[ 6 ] Mr. D.F.F. testified that he commenced a romantic relationship with the half sister of the complainant, K., who was also his niece. She was 18 years of age at the time and the relationship started approximately one month before these allegations arose on April 24, 2009. He advised that his family and members of their church found out about the relationship, throwing the family relationship into chaos.

[ 7 ] Mr. D.F.F. advised that K.’s parents (R. and M.) were particularly distraught by their relationship. He claims that they did what they could, including contacting the police on a regular basis, to try and stop the relationship. He claims that they were trying to put him in jail for “taking K. away from them”. K.’s father had threatened to stab him and made other threats during this time.

[ 8 ] Mr. D.F.F. himself had contacted the police in an attempt to pre-empt any further allegations or threats from K.’s father. The family was in an uproar. It was particularly difficult for Mr. D.F.F. in the weeks leading up to his arrest and he described it as a “pretty stressful three weeks”.

[ 9 ] Mr. D.F.F. was training as an apprentice to become a crane operator at the time of the disclosure of his relationship with K.. He said that he became so despondent over the family reaction to his relationship that he and his mother left and traveled to New York City for a couple of weeks. It was his intention to begin a new life there but he was unable to do so because he could not find a job. Mr. D.F.F. remained in New York City for approximately two weeks.

[ 10 ] Mr. D.F.F. and his mother soon returned to Toronto. Mr. D.F.F. was able to get a job where he had commenced his apprenticeship, but his responsibilities were reduced because he had left his position without notice when he went to New York City. Mr. D.F.F. testified that his employer was annoyed but allowed him to drive a truck rather than train to become a crane operator. This, Mr. D.F.F. contends, added to his depression.

[ 11 ] On the date that Mr. D.F.F. was arrested, he said that he received a telephone call from his sister, S.. He concluded from that conversation that the family was in turmoil again. They thought that Mr. D.F.F. was coming back to Canada to take K. away. This further distressed Mr. D.F.F., he says, because he was hoping that everything would get back to “normal”.

[ 12 ] Mr. D.F.F. says that as he was driving home, he began to cry. He was feeling guilty for the havoc created by his relationship with K.. He says that he could not think of a plan to resolve these issues and did not know what to do. However, he did say that he wanted to call K.’s father to persuade him that he was not going to take K. “away”.

[ 13 ] K. called Mr. D.F.F. on his way home from work. This was at approximately 8:30 p.m. She confronted him and told him that the complainant was alleging that he had touched her inappropriately. He denied it. The call ended with K. telling Mr. D.F.F. that she would obtain further details and get back to him.

[ 14 ] Mr. D.F.F. testified that he thought these allegations were yet another ploy of K.’s parents to ensure that the relationship between he and K. would end permanently. He said that he wanted to confront K.’s father and certainly did not believe that he would be arrested for the allegations involving the complainant. He did not confront K.’s father that evening because was too tired.

[ 15 ] Mr. D.F.F. testified that he got home and he was exhausted. He had arisen at 4:30 a.m. and had worked until approximately 8:30 p.m. He took a shower, got into his bed clothes and was approaching sleep when the police arrived at his home. Mr. D.F.F. testified that he heard his brother talking to somebody at the door and when he heard his name, he came out of the bedroom and spoke with the police.

[ 16 ] Mr. D.F.F. said that he thought the police visit might have something to do with either K. or the complainant. He knew it was coming from “them” and he “did not really care”. He viewed the police arrival as “finally” a chance to explain what was going on “about the situation”. He invited the police into the kitchen to discuss the allegations that had most recently arisen from K. and her parents. The police declined.

[ 17 ] Mr. D.F.F. advises that he was arrested, given his rights to counsel and taken to the police station. He was not advised of the name of the complainant at that time. At no time did any police officer threaten or induce Mr. D.F.F. to give a statement. He simply claims that he was so depressed about what had gone on with K. and her family over the prior three weeks that he did not have an operating mind when he admitted to touching the complainant for a sexual purpose.

[ 18 ] The two officers who attended at Mr. D.F.F.’s home for the purpose of arrest described Mr. D.F.F. as “normal”. He appeared to be calm and followed their requests to come with them, etc. They both testified that Mr. D.F.F. was read his rights to counsel and given a caution. Both officers testified that Mr. D.F.F. appeared to understand both. No statements were made by Mr. D.F.F. either at the home or on the way to the police station.

[ 19 ] At the police station, Mr. D.F.F. was paraded and this was recorded. The tape was played during the voir dire . During this process, Mr. D.F.F. appeared to be alert and responsive to the questions posed by the Staff Sergeant. He did not appear to be tired. When asked if he was suicidal, Mr. D.F.F. responded “no”.

[ 20 ] Mr. D.F.F. was then put into a room in the Criminal Investigations Bureau at 31 Division of the Toronto Police Service. This is a room that has little more than a door and some benches for seating. This is where Mr. D.F.F. was able to consult with duty counsel before giving his videotaped statement.

[ 21 ] Shortly after his arrival at the police station, Mr. D.F.F. was introduced to Police Constable Greg Feagan. P.C. Feagan asked Mr. D.F.F. if he had spoken to a lawyer and Mr. D.F.F. responded by saying that he had spoken to duty counsel. P.C. Feagan then asked Mr. D.F.F. if he would be willing to speak to him and Mr. D.F.F. responded: “yes”. P.C. Feagan described Mr. D.F.F.’s demeanour as “normal” during this exchange.

[ 22 ] Moments later and at 12:27 a.m. on April 24, 2009, the video statement was commenced. P.C. Feagan once again described the demeanour of Mr. D.F.F. during this statement as “normal”. There was nothing unusual about Mr. D.F.F.’s behaviour. He did not have any reason to believe that Mr. D.F.F. had consumed either drugs or alcohol and nothing lead him to the conclusion that he should be concerned about Mr. D.F.F.’s mental health. At no point did he form the impression that Mr. D.F.F. simply wanted to get the statement over with so that he could return to his cell.

[ 23 ] During the videotaped statement, P.C. Feagan advised Mr. D.F.F. that he had been charged with sexual assault and sexual interference regarding the complainant. He also advised him that the charges were serious and gave a brief overview of the allegations: that he had removed the pants of the complainant; that he had removed his own pants and that he had touched the buttocks of the complainant.

[ 24 ] At no time did the officer advise Mr. D.F.F. that the allegations included that he had touched the buttocks of the complainant with his penis. In fact, the word penis (or factual equivalent) was never used during this interview at all. At times the officer minimized the conduct of Mr. D.F.F. suggesting he was simply “young”, “curious” and that he had made a “mistake”.

[ 25 ] During the statement, Mr. D.F.F.:

a. Advised that he was aware that he was being charged for sexual assault (twice);

b. Advised that he had spoken to duty counsel and was aware that the statement was being videotaped;

c. Said that he understood that he did not have to say anything to the officer, but that if he did, it could be used at court and that it could be used against him;

d. Confirmed for a second time that he did not have to say anything to the officer and should only do so if he wanted to;

e. Asked about his options, to which the officer responded: “Well your options are you talk to me or you don’t talk to me”;

f. Asked about a potential jail sentence and tells the officer that he should know the maximum penalty for such charges;

g. Advised that he did not have money for a lawyer right now and that he does not want “to go through that”;

h. Acknowledged that he was aware that the allegations being made against him were serious; and

i. Responded to questions about his personal life regarding residence, family, employment, immigrating to Canada, the type of car he drives, etc.

[ 26 ] Eventually, Mr. D.F.F. admitted to the allegations as described to him by the officer. The following exchange was recorded:

Feagan : … They say you took their pants off and you touched their butt.

D.F.F. : You know what? I’m gonna save you the trouble so yeah – it did happen right?

Feagan : Yeah.

D.F.F. : I got nothing to explain. I don’t know what I was thinking.

Feagan : Well tell me what happened.

D.F.F. : Like I can’t really remember. Pretty much what she said there. I don’t even know what exactly happened.

[ 27 ] During the voir dire , Mr. D.F.F. gave the following explanations for his admission:

a. there was nothing he could do about it;

b. he felt defeated and there was no way out;

c. he was tired, stressed and depressed;

d. he just wanted it over with;

e. he thought that this “would put a stop to all this craziness that had been going on”;

f. he “got what he deserved” for having a relationship with K.;

g. he wanted the matter dealt with promptly because “what would the judge think” if he or she knew about his relationship with K.;

h. he was concerned about his family;

i. he had no money for a lawyer;

j. nothing happened with the complainant so that it could not be serious;

k. he was overwhelmed;

l. the seriousness of the offences were diminished by the officer during the interview;

m. he did not really know the details, so he did not know what he was confessing to; and

n. “the easy way out was to let everything happen and deal with the consequences”.

Analysis

[ 28 ] Both parties agree that a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. The four factors that must be considered in the Court’s analysis to determine whether the statement is voluntary are as follows:

a. Whether there were any threats or promises made;

b. Whether an atmosphere of oppression existed;

c. Whether the accused person had an operating mind; and

d. Whether the existence of police trickery was present.

[ 29 ] Counsel for Mr. D.F.F. has conceded that there were no threats or promises made to Mr. D.F.F., nor did the police engage in unacceptable trickery. He submits that Mr. D.F.F. did not have an operating mind at the time he gave his statement. Alternatively, he submits that the statements are not admissible “because they are not relevant to the issue of Mr. D.F.F.’s guilt or innocence”. Simply put, it cannot be determined “exactly what Mr. D.F.F. was admitting to”.

[ 30 ] I will deal with each of Mr. D.F.F.’s arguments below.

a. Did Mr. D.F.F. have an operating mind?

[ 31 ] In order for a statement to be voluntary, amongst other things, the accused must have an operating mind. The test to be applied in each case includes a limited mental component and the test is low. Essentially, the accused person must have sufficient cognitive capacity to understand what he is saying and what is said. The accused must have the ability to understand a caution and the ability to understand that the evidence may be used against him or her. [1]

[ 32 ] There is no requirement that the accused be capable of making rational decisions that are beneficial to him or be capable of exercising analytical reasoning. The limited nature of the test to be applied when the issue of an operating mind is raised was dealt with in R. v. Whittle : [2]

The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused.

In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required for fitness to stand trial.

[ 33 ] Mr. D.F.F. submits that he did not have an operating mind at the time of giving the statement because there was an atmosphere of oppression that existed during the statement because:

i. He suffered from extreme fatigue at the time he gave his statement; and

ii. Although the questioning was not aggressive, it was vigorous and he was overwhelmed.

I will now deal with each of these two points.

i. Fatigue

[ 34 ] Mr. D.F.F. testified on numerous occasions that he was fatigued due to the fact he had arisen at 4:30 a.m. on the day of his arrest and he had worked a fourteen-hour day. He was also fatigued due to the stress that he was feeling due to the family chaos created by his relationship with K..

[ 35 ] While I appreciate the stressful circumstances under which Mr. D.F.F. was living due to the romantic relationship he was having with his niece, I do not find that he was fatigued to the point that he was overwhelmed and did not have an operating mind when giving his statement to the police.

[ 36 ] It was abundantly clear from an examination of the video statement that Mr. D.F.F. was functioning with a high level of cognitive capacity. Mr. D.F.F. was responsive to questions and never suggested that he was too tired to participate in the interview.

ii. Rigorous Questioning

[ 37 ] I do not agree that the questioning by the officers was either aggressive or rigorous such that it created an oppressive environment and that Mr. D.F.F. was overwhelmed. In fact, I find the opposite to be true. The following evidence was provided by Mr. D.F.F. during the voir dire :

a. When the police arrived at his home to arrest him, the police did not mistreat him;

b. There were no threats or intimidation;

c. He was read his rights to Counsel;

d. He was permitted to call a lawyer;

e. Nothing was said to him in the car by the arresting officers;

f. At no time was Mr. D.F.F. deprived of sleep and in fact, he slept while awaiting the officers’ arrival to question him;

g. D.C. Feagan ensured that Mr. D.F.F. had spoken to Counsel before speaking to him about the allegations;

h. Mr. D.F.F. said that he would be willing to speak to the police;

i. Mr. D.F.F. appeared to be relaxed when speaking to D.C. Feagan;

j. The statement lasted only 26 minutes; and

k. The questioning was not aggressive at any time and, in fact, I would describe D.C. Feagan as “laid back” at the time of taking the statement.

[ 38 ] It is clear from all three officers that Mr. D.F.F. was cooperative. He was able to follow the directions of the arresting officers to leave the apartment and attend at the police station with them. He was responsive to questions and remained calm at all times. It is obvious from a review of the videos of both the parade and the statement itself, that Mr. D.F.F. was able to understand what was being asked or said to him and what he was saying in response. All officers described Mr. D.F.F. as “normal”.

[ 39 ] Further, it is clear from the cross-examination that Mr. D.F.F. had an operating mind at the time he gave his statement:

a. He understood what was happening around him;

b. He knew where he was;

c. He was able to provide a logical and rational response to the questions;

d. He was not delusional;

e. He was in good health despite feeling “stressed” and “tired”; and

f. He had not taken any drugs or alcohol.

[ 40 ] It is also clear that Mr. D.F.F. understood the caution and the fact that the evidence could be used against him. This is obvious not only from the exchange that occurred on the video, but also from the question posed by Mr. D.F.F. as to whether he was to talk to them at all. Further, the fact that he was functioning with a high level of cognitive capacity is evident from the concerns he expressed about the consequences of his actions as well as his reference to the court system: bail, guilty plea, the judge’s discretion and a potential jail sentence.

[ 41 ] I do not accept that Mr. D.F.F. did not possess an operating mind at the time he spoke to the police. He made a choice to speak to them, understanding that what he said could be used in evidence. I find that the operating mind test was clearly met in these circumstances.

b. Relevance of the Statements

[ 42 ] Mr. D.F.F. submits that the statement is inadmissible because it fails the test of relevance. In other words, can any meaning be put on the words uttered by Mr. D.F.F.? Are the words, in fact, an admission? [3]

[ 43 ] The admission made by Mr. D.F.F. is that he did what the complainant “said” he did. What he knows the complainant said at the time he uttered these words is as follows: “took her pants off, bent her over a bed and touched her” and that he “started touching her butt”. Accordingly, it does appear that the statement is relevant because in its context, it can be considered an admission that Mr. D.F.F. touched the buttocks of the complainant.

Conclusion

[ 44 ] For the above-mentioned reasons, I conclude that the Crown has proven beyond a reasonable doubt that the statement made by Mr. D.F.F. to P.C. Feagan was given voluntarily. Accordingly, it is admitted at trial.

Kelly J.

Released: October 10, 2012

DATE: 20121010

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Applicant - and - D.F.F. Respondent

Ruling Re: Voluntariness Kelly J.

Released: October 10, 2012

[1] See: R. v. Bonder , [2005] O.J. No. 2512 (S.C.J.) at para. 87

[2] (1994), 92 C.C.C. (3d) 11 (S.C.C.) at paras. 31 and 33

[3] Cloutier v. The Queen (1979), 48 C.C.C. (2d) 1 (S.C.C.) at 28