COURT FILE AND PARTIES

COURT FILE NO.: 12630/11
DATE: 20121016
Amended : 20121023

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Crown – and – Michael Monckton Defendant

Paul Murray/Kerri-Ann Kennedy, for the Crown

Raymond Boggs, for the Defendant

HEARD: September 10, 11, 12, 13, 17, 18, 19, 20, 21 and October 1, 2, and 3, 2012

Sosna, J.

(delivered orally October 16, 2012)

Charter Ruling on Statement Admissibility

VOLUNTARINESS AND APPLICATION of section 7 & 10(b) OF THE CHARTER

Overview

[ 1 ] Michael Monckton stands charged:

Count 1 - that he on or between the 5 th day of January in the year 2010, at the City of Oshawa and elsewhere in the Province of Ontario, unlawfully did commit second-degree murder on the person of Keagan Davis;

Count 2 - that he between the 1 st day of October, in the year 2009 and the 5 th day of January, 2010 at the City of Oshawa in the Province of Ontario, did endanger the life of Keagan Davis, thereby committing aggravated assault;

Count 3 - that he between the 1 st day of October, in the year 2009 and the 5 th day of January, 2010 at the City of Oshawa in the Province of Ontario, did in committing an assault upon Keagan Davis, cause bodily harm to him.

[ 2 ] The Crown seeks to introduce into evidence seven statements made by Monckton when interviewed by the police. Five of those statements were recorded and filed as exhibits in this voir dire . Those statements are as follows:

Exhibit “C” - a DVD of Monckton's interview dated May 9, 2009 at the Port Hope Police Station.

Exhibit “D” - a DVD of Monckton's interview dated June 17, 2009 at the Port Hope Police Station.

Exhibit “F” - Disk #1 a DVD of Monckton's interview dated January 7, 2009 at the Durham Regional Police Station.

Exhibit “G” – Disk #2 a DVD of Monckton's continuing interview dated January 7, 2009 at the Durham Regional Police Station.

Exhibit “J” - a DVD of Monckton's interview dated January 8, 2010 at the Durham Regional Police Station.

[ 3 ] The Crown further seeks to introduce Exhibit “A”, a two-page document dated June 17, 2009 entitled Port Hope Police Service Caution Statement filled out by Michael Monckton. Exhibit “A” was prepared by the Accused during his interview on June 17 (Exhibit “D”).

[ 4 ] The Crown also seeks to introduce statements made by Monckton to Constables Forget and Parker, Durham Regional Police Officers who responded to a 911 call on January 5, 2010 concerning a child not breathing. Forget and Parker spoke to Monckton at the scene. Monckton made a series of verbal utterances which the officers recorded in their notebooks.

[ 5 ] In addition to the exhibits filed, all police officers who interviewed Monckton testified on the voir dire . Michael Monckton also testified in this voir dire in support of Exhibit “L” an affidavit he swore on September 10, 2012.

Position of the Crown

[ 6 ] The Crown submits that statements made by Monckton to the police during the investigation were voluntary absent any violence, promises, threats or inducements. The Crown also argues that the statements were obtained in compliance with sections 7 and 10(b) of the Charter . The Crown submits the statements are admissible for trial purposes.

Position of the Defence

[ 7 ] The Defence submits that the statements are inadmissible since they were obtained in breach of the common law rule regarding voluntariness and/or were obtained in breach of sections 7 and 10(b) of the Charter .

Applicable Statutory Principles

[ 8 ] Section 7 of the Canadian Charter of Rights and Freedoms states:

Life, liberty and security of person - Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice.

[ 9 ] Section 10(b) of the Canadian Charter of Rights and Freedoms states:

Arrest or detention - Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right;

The Test for Voluntariness and Relationship to the Charter

[ 10 ] The test for voluntariness of a statement is succinctly set out in R. v. Rothman 1981 , [1981] 1 SCR 640 :

“… no statement made by accused to a person in authority is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it is not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

[ 11 ] As noted in R. v. Oickle 2000 SCC 38 , [2000] 2 SCR 3 at paragraph 71 ;

I would also like to emphasize that the analysis under the confessions rule must be a contextual one…a court should strive to understand the circumstances surrounding the confession and ask if it gives a rise to a reasonable doubt as to the confessions voluntariness…If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one…

[ 12 ] As noted in R. v. Singh [2007] 3 S.C.R . at paragraph 8:

The Court of Appeal’s impugned comment on the interplay between the confessions rule and section 7 of the Charter merely reflects the fact that, in the context of the police interrogation of a person in detention, where the detainee knows he or she is speaking to a person in authority, the two tests are functionally equivalent. It follows that, where a statement has survived a thorough inquiry into voluntariness, the Accused’s Charter application alleging that the statement was obtained in violation of the pre-trial right to silence cannot succeed. Conversely, if circumstances are such that the accused can show on a balance of probabilities that the statement was obtained in violation of his or her constitutional right to remain silent, the Crown will be unable to prove voluntariness beyond a reasonable doubt.

Background Facts Surrounding Monckton’s Statement to the Police in 2010

January 5, 2010 Statement

[ 13 ] On January 5, 2010, at 11:40 a.m., a 911 call was received requesting ambulance assistance at 876 Southgate Drive in Oshawa. The call indicated that a child was not breathing. The child was ultimately identified as Keagan Davis, approximately 2½ years old. The child has since died.

[ 14 ] Along with ambulance and fire department, police were dispatched to the scene arriving at 11:42 a.m. The first officers attending were Constables Forget and Parker. While in the home they interviewed both Michael Monckton and Leigh Ann Cooper, the mother of Keagan Davis, while EMS attended to the child. Both Monckton and Cooper responded to their inquiries.

[ 15 ] Since the officers did not have any audio or video recording devices with them, the statements received from Monckton and Cooper were recorded in their notebooks and subsequently in supplementary reports.

(continued exactly as in the original judgment…)

The Honourable Mr. Justice A. Sosna

Delivered orally: October 16, 2012