ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-2017
DATE: 20121031

BETWEEN:

HER MAJESTY THE QUEEN – and – TIMOTHY CARTER and DONALD DODD Defendants

Jennifer Holmes and Roger Dietrich, for the Crown

Colin D. Adams and Anthony LaBar, for Timothy Carter Gordon D. Cudmore and Dale Ives, for Donald Dodd

ruling on the admissibility of timothy carter’s statement of january 27, 2009

Pomerance j.:

[ 1 ] In my ruling of January 6, 2012, I excluded statements given by Timothy Carter to the police in July 2008 on the basis that the circumstances of the statements violated Mr. Carter’s rights under s.10 (a) of the Charter .

[ 2 ] At that time, I also made an oral ruling that the statement given by Mr. Carter to the police on January 27, 2009 was admissible. I ruled that the January statement had been proved to be voluntary beyond a reasonable doubt and that it did not give rise to any Charter violations. That statement was introduced into evidence at the trial, after it was edited to remove prejudicial content. At the time of my oral ruling, I advised that I would provide written reasons. These are those reasons.

[ 3 ] It was the position of the defence that the statement of January 27, 2009 should be excluded because it was tainted by the earlier Charter breaches. Alternatively, the defence contended that the voluntariness of the statement had not been proved beyond a reasonable doubt. The Crown responded by disputing any taint and by arguing that the statement was voluntary. I will briefly describe the January statement and then deal directly with the legal issues.

[ 4 ] On January 27, 2009, at 1:15 p.m., Mr. Carter was arrested for the murders of Peter Kambas and Vaois Koukousoulous by Windsor police officers, assisted by the Emergency Services Unit. He was taken into custody and given an opportunity to speak with his lawyer, Frank Miller, between 1:58 and 1:59 p.m. He was again given the opportunity to speak with Frank Miller between 4:41 p.m. and 4:49 p.m. Mr. Carter was removed from his cell in order to speak with Frank Miller on the phone between 7:44 and 7:46 p.m. At 8:15 p.m., he was removed from his cell and escorted to a third floor interview room, where he was questioned by Detective Todd Lamarre and detective Mark Denonville. The interview continued for over three hours, concluding at 11:30 p.m.

[ 5 ] During the interview, Mr. Carter asserted on several occasions that he had nothing to say. In some instances, he claimed to know nothing about the relevant events. In other instances, he expressed his wish to remain silent. On occasion, Mr. Carter did comment on matters, such as his relationship with Adelino Moreira. On one occasion, he told the officers that he had given Peter Kambas the ring he was wearing when his body was found. It was the Crown’s position that Mr. Carter was being less than truthful with the police when he claimed to have no knowledge of the crime.

[ 6 ] The first issue to be addressed is whether the January 2009 statement was tainted by earlier Charter breaches, most notably, the breach of s. 10(a) that accompanied the statements made in July 2008.

[ 7 ] The potential tainting effect of earlier breaches was described in R. v. Wittwer , 2008 SCC 33 , [2008] 2 S.C.R. 235 , at para. 21 :

In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005. The required connection between the breach and the subsequent statement may be “temporal, contextual, causal, or a combination of the three”: R. v. Plaha (2004), 2004 21043 (ON CA) , 189 O.A.C. 376, at para. 45 . A connection that is merely “remote” or “tenuous” will not suffice: R. v. Goldhart , 1996 214 (SCC) , [1996] 2 S.C.R. 463, at para. 40 .

[ 8 ] In assessing the link between two statements, various factors are relevant, including those identified by Sopinka J., speaking of voluntariness in R. v. I. (L.R.) and T. (E.) , 1993 51 (SCC) , [1993] 4 S.C.R. 504 , at pp. 526-7 :

Under the rules relating to confessions at common law, the admissibility of a confession which had been preceded by an involuntary confession involved a factual determination based on factors designed to ascertain the degree of connection between the two statements. These included the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminating evidence subsequent to the first statement, the presence of the same police officers at both interrogations and other similarities between the two circumstances.

In applying these factors, a subsequent confession would be involuntary if either the tainting features which disqualified the first confession continued to be present or if the fact that the first statement was made was a substantial factor contributing to the making of the second statement.

[ 9 ] In this case, the circumstances leading to the s. 10(a) violation in July 2008 had ceased to exist by January 2009. The concern in July 2008 was that Mr. Carter was never told that he was a suspect in a homicide investigation. The police had neutralized the information given to Mr. Carter, telling him that they were conducting a “missing persons” investigation. It was on that basis that I found there to be a violation of s. 10(a).

[ 10 ] By the time Mr. Carter gave his statement to the police in January 2009, he was well aware of his jeopardy. He knew that he was under arrest for two charges of murder and he had an opportunity to consult with his counsel on that basis. The constitutional frailty attaching to the July 2008 statements had been effectively and completely cured by intervening events.

[ 11 ] Nor is any link established by the content of the January statement. When the police refer back to an earlier statement, this can sometimes have a tainting effect. The concern is that the suspect may feel that, because of the earlier statements, it is fruitless to insist on silence. He or she may believe that, having already incriminated him or herself, there is nothing left to lose.

[ 12 ] That rationale does not apply in this case. Mr. Carter did not make any directly incriminating utterances in the July statements. He insisted that he had nothing to say in July 2008, and maintained that assertion in January 2009. There is no indication that he was inclined to incriminate himself or that he believed he had already done so. The officers conducting the January 2009 interview did make passing reference to the July 2008 statements. However, these references were fundamentally neutral. They were not capable of tainting the January 2009 statement or rendering it inadmissible on Charter grounds. I note that the references to the July 2008 statements were edited out of the January 2009 statement before it was presented to the jury.

[ 13 ] I will next turn to the voluntariness of the January 2009 statement, which the Crown must prove beyond a reasonable doubt.

[ 14 ] In R. v. Oickle, 2000 SCC 38 () , [2000] 2 S.C.R. 3 and R. v. Spencer , 2007 SCC 11 () , [2007] 1 S.C.R. 500 , the Supreme Court of Canada advocated a functional and contextual approach to the common law confessions rule. This approach must take account of the techniques used by police in questioning a suspect. It must take account of the suspect’s characteristics, including those that might make him or her more vulnerable to police suggestion and influence. It must take account of the extent to which the police conduct – be it a promise, a threat, trickery, or alleged oppression – gave rise to a “quid pro quo”, or a suggestion that the suspect would receive a benefit in exchange for speaking. Finally, and perhaps most importantly, it must take account of the strength of the alleged threat or inducement and whether it caused the suspect’s will to be overborne. The central question is whether the suspect was deprived of his ability to make an effective and voluntary choice about whether or not to speak.

[ 15 ] There are no hard and fast rules to guide this determination. There are simply too many variables. The relevant factors must be considered separately, as well as cumulatively in assessing their impact. Every case must, of course, be decided on its own facts.

[ 16 ] In this case, the police presented Mr. Carter with their theories about the crime. These theories posited different levels of moral culpability. In some instances, they suggested to Mr. Carter that he might have been acting in self-defence rather than acting as a cold blooded killer. I find that this questioning technique did not give rise to an inducement. The police, while presenting different theories of the killing, never suggested that Mr. Carter might receive leniency of any kind if he spoke. The police never addressed issues of legal culpability. They merely presented theories or scenarios which were more or less serious, depending on the facts. There was no suggestion of a quid pro quo.

[ 17 ] In any event, even if this strategy could be taken to operate as an inducement, there is nothing to indicate that it actually induced Mr. Carter to speak. Nor is there any indication that the techniques used by police overrode Mr. Carter’s will. Mr. Carter maintained and asserted his right to silence throughout the course of the interview. The mere fact that he did speak from time to time does not mean that his will was overborne. He called the officers “stupid”. He told them he did not want to answer their questions. He responded with “no comment”. When he told the officers about buying the ring on Mr. Kambas’ finger, he offered it as a “surprise” – a piece of information that he knew and they did not, as if this placed him in a position of strength. These are not the responses of someone who feels compelled to speak. Mr. Carter was at all times in control of his conduct during the interview. When he chose to respond or speak to the officers, that was his decision, made on a voluntary basis.

[ 18 ] The officers treated Mr. Carter with courtesy and respect during the interview. They were not aggressive in their speech or their demeanour. They told him that the case was strong and advised him that he was “fucked”. This statement, while expressed in strong language, was offered in a calm and matter of fact tone of voice. Officers Lamar and Denonville maintained a conversational tone. They asked Mr. Carter if he had eaten. They offered him water.

[ 19 ] In short, there is nothing in the evidence that raises a reasonable doubt as to the voluntariness of the January 2009 statement.

[ 20 ] Having found it to be voluntary and having found no violation of the Charter , I ruled the statement admissible at trial.

Original signed “Justice Pomerance”

Renee M. Pomerance
Justice

Released: October 31, 2012

COURT FILE NO.: CR-10-2017

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – TIMOTHY CARTER and DONALD DODD Defendants ruling on the admissibility of timothy carter’s statement of january 27, 2009 Pomerance J.

Released: October 31, 2012