COURT FILE NO.: CR-10-5086 DATE: 2012-10-12
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen Applicant
- and -
Steven Boone Respondent
COUNSEL: Meaghan Cunningham and Louise Tansey-Miller, for the Applicant Ian Carter and Meaghan Thomas, for the Respondent
HEARD: September 11 and 12, 2012, at Ottawa, Ontario
BEFORE: Madam Justice B. R. Warkentin
Reasons on Voluntariness Application
[1] The question on this voir dire was whether or not the Respondent's statement to Sergeant Nicole McGetrick on May 6, 2010 was voluntary and if so, is it admissible at trial? The Respondent, Steven Boone, has not alleged that the taking of the statement infringed his Charter rights.
[2] The Crown bears the burden of proving the statement was voluntary beyond a reasonable doubt.
[3] The Respondent stands charged with a number of offences on a 16 count indictment. The allegations arise from the fact that the Respondent engaged in sexual activities with seven different complainants without disclosing the fact that he was HIV positive.
[4] On October 2, 2012 I granted the Applicant's application and found the Respondent's statement was voluntary. I have now prepared these reasons regarding that decision.
[5] The primary issues at trial were whether or not the law required the Respondent to be truthful about his HIV status and if so, did his failure to do so vitiate the consent of the complainants to the sexual relations that occurred; whether the Respondent intended to kill the complainants (on the attempt murder charges); whether or not the Respondent's conduct on these counts endangered the lives of those four complainants and whether or not the Respondent intended to infect all of the complainants with HIV.
[6] In addition to the charges on the indictment before this court, the Respondent and a co-accused stand charged with a number of offences arising out of similar criminal conduct in the Kitchener/Waterloo region.
[7] A voir dire in that proceeding was held before Mr. Justice D. Gordon in November and December 2011 with respect to the same videotaped statement given by the Respondent to Sergeant McGetrick on May 6, 2010. In that voir dire, the Respondent argued that his Charter rights had been violated and that his statement was not voluntary.
[8] On January 5, 2012, Justice Gordon excluded the Respondent's statement on the basis that the Respondent's right to counsel had been breached and that the Crown had not met it's onus of proving the statement to be voluntary.[^1]
Res Judicata (Issue Estoppel) and Abuse of Process
[9] In the hearing before me, neither party initially addressed the issues of issue estoppel or abuse of process.
[10] At the outset of this voir dire, I asked counsel for submissions on whether or not I could consider the issue of voluntariness of the statement given to Sergeant McGetrick on May 6, 2010 (the "statement") when another judge had already determined the statement was inadmissible.
[11] After hearing submissions from the parties on the issues of issue estoppel and abuse of process, I am satisfied that the principle of issue estoppel does not apply nor is a second voir dire on the same statement in a different proceeding an abuse of process in the circumstances of this case.
[12] In reaching this conclusion I reviewed the decision of the Supreme Court of Canada in the case of R v Duhamel[^2] which held that the Crown was not estopped from re-litigating the admissibility of a statement made by an accused even though the same statement had previously been ruled inadmissible by a judge holding a voir dire in a previous criminal proceeding.
[13] Duhamel was charged with two counts of robbery and tried separately on each count. At the first trial, his statements were ruled inadmissible and he was acquitted. The second trial took place before a different judge. Rejecting Duhamel's objections that the Crown was estopped from re-litigating the issue of the voluntariness of his statements, the trial judge held a voir dire and admitted the statements. Duhamel was then convicted.
[14] The Supreme Court of Canada upheld the conviction, holding that issue estoppel did not apply to the issue of voluntariness of an accused's statement. Mr. Justice Lamer, for the majority, reached his conclusion citing the lack of appeal rights from such rulings in criminal matters. He was concerned that if issue estoppel applied to rulings on voir dires, the prosecution and the defence could find themselves bound by such rulings in subsequent proceedings without having had any opportunity to challenge the validity of the ruling from the original proceeding.
[15] Lamer J. explained how the application of issue estoppel to rulings on confession voir dires would have undesirable consequences, given the limited right of review from such decisions:
But there is one major reason against the extension: there is no appeal, and error is generally subject to limited review. ….
Though the voir dire is in a sense autonomous, it is nevertheless totally dependent upon the main trial for its appeal process…. If the statement is wrongly excluded, even through error of law, but the accused nevertheless convicted, benefit of the doctrine of res judicata would then be founded upon an error of law beyond the reach of redress. Indeed, the Crown has no appeal from that conviction. Similarly, if the statement is excluded through error of fact, and the accused acquitted, again the erroneous finding is beyond the reach of the courts as the Crown's right to appeal is limited to matters of law.
If mutuality is introduced, matters are even worse. A statement wrongfully admitted in proceedings resulting in an acquittal would follow and prejudice an accused throughout all of his other trials. [p.562 & 563]
[16] Accordingly, the Crown is not barred from seeking to introduce a statement ruled inadmissible in a prior proceeding. The duty of a trial judge presiding on a subsequent voir dire is to consider the admissibility issue afresh based on the evidence adduced in the subsequent proceeding. Moreover, the judge presiding at the subsequent hearing does not owe deference to factual or credibility findings made at an earlier hearing.[^3]
[17] The trial of the proceeding before Justice Gordon has not yet been heard notwithstanding the rulings on the voir dire and therefore there has been no opportunity to consider the decision of Justice Gordon on review. Therefore issue estoppel does not apply so as to prevent a voir dire in this proceeding on the voluntariness of the statement.
[18] For these same reasons, I find that absent issue estoppel, it cannot then be an abuse of process to have another voir dire on the voluntariness of the statement in this proceeding.
Voir Dire
[19] In the voir dire before me the Respondent did not challenge the introduction of the statement based upon an alleged breach of his Charter rights as he did in the voir dire before Gordon J. The Respondent testified in the voir dire before Gordon J. but did not testify in the voir dire before me therefore the evidence of the Crown's witnesses on this voir dire was not contradicted.
[20] The issue before me was whether or not the statement was voluntary. The test of its voluntariness is whether the will of the Respondent was overborne in circumstances such as to render the statement inadmissible.
[21] In considering the issue of voluntariness, I reviewed the evidentiary record that was before this court which included:
a) The testimony of Sergeant Nicole McGetrick b) The testimony of Sergeant Alberta O'Connell; c) The testimony of Detective Sarah Standing; d) A copy of the warrant remanding the Prisoner; e) A copy of the video and transcript of the interview conducted by Sergeant McGetrick of the Respondent; and f) Copies of the cell block videos depicting the Respondent and Sergeant McGetrick.
[22] The Crown claims that there is nothing in the evidence before this court that raises a doubt about the four aspects of voluntariness that I must consider when determining if the statement was voluntary:
a) That the Respondent at all times possessed an operating mind; b) That no officer or special constable, including Sergeant McGetrick, Sergeant O'Connell and Detective Standing made any threats, promises or inducements to the Respondent; c) That there was no atmosphere of oppression; and d) That there was no police trickery used to obtain a statement from the Respondent.
[23] Counsel for the Respondent noted when considering whether a statement was made voluntarily, the judge must examine and evaluate all the circumstances surrounding the making of the statement.[^4] In this case, Counsel for the Respondent claimed that there were a number of issues that in the context of the entire process would render the statement involuntary. These included the fact that the first minute of the video recording of the statement was missing, that Sergeant McGetrick spoke to the Respondent in the cell blocks for about 3 minutes and with respect to both these events, no officer made notes of the interactions with the Respondent at the time they occurred or within a reasonable time thereafter and that the Respondent was returned from bail court to the police station rather than to the remand centre.
[24] Counsel for the Respondent claimed that the court should weigh all of these factors when considering whether or not the statement was voluntary.
[25] The focus in this hearing was with respect to the following events:
a) Sergeant McGetrick's visit with the Respondent in the cell block; b) The missing minute on the video statement made by the Respondent; c) The exchange between the police officers regarding the missing minute; d) Did the officers fail in their obligation to keep proper notes regarding various aspects of this investigation; e) Whether or not the police failed to comply with the remand warrant; and f) If they did fail to comply with the terms of the remand warrant, does this failure affect the voluntariness of the statement?
Evidence
[26] Sergeant McGetrick, then with the Partner Assault Unit, was the lead investigator in this case.
[27] The Respondent was arrested on May 6, 2010 shortly after midnight and was transported to the police station and placed in a holding cell. The Respondent spoke to a lawyer on two occasions, shortly after arrest and later in the afternoon on May 6, 2010, following his return from bail court.
[28] In her testimony at the preliminary hearing Sergeant McGetrick reported she had no contact with the Respondent following his arrest until the interview that was videotaped on May 6, 2010.
[29] Her evidence on this voir dire was that she had had some contact with the Respondent on May 6, 2010 prior to the Respondent leaving for bail court. This contact was confirmed by way of the holding cell video that revealed a visit occurring at approximately 12:27 to 12:30 p.m. on May 6, 2010.
[30] Sergeant McGetrick had no independent recollection of visiting the Respondent and no memory of the conversation. She speculated that the meeting was to inform the Respondent he would be going to bail court. Indeed, he was escorted from his holding cell almost immediately after that meeting (at 12:58 p.m.) and taken to bail court.
[31] Sergeant McGetrick testified that notwithstanding she did not actually recall the meeting with the Respondent in the holding cells she was able to say with certainty that she did not make any promises, threats or inducements to the Respondent during that visit. Her evidence was that:
a) she never makes promises, threats or inducements to persons detained in custody; and b) that she would not have discussed the charges or any other specific issue regarding the Respondent's case during that meeting in the holding cells because the area was not private, there were other prisoners and the nature of the allegations were particularly sensitive.
[32] Sergeant McGetrick's evidence on this issue was not contradicted.
[33] Sergeant McGetrick testified that she had been unable to conduct an interview with the Respondent prior to his attending at bail court because of time constraints. She had been on duty since 7:00 a.m. on May 5, 2010 and needed to rest before the interview and prepare paperwork. Sergeant McGetrick was also concerned with the Respondent appearing in bail court within the requisite twenty-four hours. She sought advice about this issue from an assistant crown attorney who informed her that they would make arrangements for the Respondent to be returned to the police station holding cells following his attendance in bail court in order to permit her to conduct an interview with the Respondent then.
[34] At bail court, The Respondent was remanded in custody to appear on May 10, 2010. The remand warrant issued on the court appearance directed the police officers to deliver the Respondent to a prison, common jail, regional detention center or hospital in the region or elsewhere in the province of Ontario. This is the standard wording on all remand warrants and there was nothing else in the remand warrant to suggest the only place the Respondent was to be sent was to the regional detention centre. The Respondent was escorted back to the police station and placed in the holding cell.
[35] Sergeant McGetrick was expecting the Respondent to be returned to the police station following the court appearance. She did not see the remand warrant and did not enquire as to whether or not he had been specifically remanded back into the custody of the Ottawa Police Service.
The Interview
[36] The Respondent was escorted from his holding cell at 8:29 p.m. on May 6, 2010 to meet with Sergeant McGetrick. The interview lasted approximately two hours. The interview itself was a model of professionalism. Sergeant McGetrick treated the Respondent with respect and dignity and succeeded in engaging him in a discussion where he identified some of his sexual partners and disclosed the fact that he was HIV positive.
[37] Unfortunately, the initial part of the interview was not recorded. Approximately one minute is missing.
[38] Detective O'Connell was in the monitor room acting as a scribe and recording the interview. She testified that she had been involved in hundreds of interviews and was horrified when a few days after the interview; she learned that the initial part of the interview was missing. She also testified that nothing untoward occurred during the missing minute because had something inappropriate taken place she would have interrupted the interview and discussed this with Sergeant McGetrick. Her recollection of that missing minute was that Sergeant McGetrick and the Respondent entered the interview room, sat down and there were initial introductions.
[39] Detective O'Connell testified that she made notes about what transpired during the missing minute as soon as she learned about the issue.
[40] The recording of the video statement commenced at the point in the interview when Sergeant McGetrick was informing the Respondent that he was under arrest for ten counts of aggravated assault and two counts of breach of probation.
[41] At the time the interview took place, neither officer made notes of the conversation that occurred in the unrecorded time period. Their notes regarding this period were only made after they discovered the initial minute was missing, on May 12, 2010.
[42] When Sergeant McGetrick discovered the initial part of the interview was not recorded, she sent an email to Detective O'Connell, saying:
Hi Allie,
I copied the BOONE interview for Waterloo and discovered that you did not start recording the interview until after BOONE and I were in the interview room. I clearly gave BOONE an introduction upon entering the room, my name, date, time, his name, fact that the interview was being monitored. This was not recorded on the tape and is not indicated in your IA. Your IA starts when the tape starts, at me advising him what he is under arrest for. The missed information is vital and should be at least recorded on your IA. You will have to add an amended IA to reflect what was missed in your initial IA. Let me know when this is done.
Thanks,
Nicole
[43] Detective O'Connell claimed that she was not in the office when the missing minute was discovered, so she made notes about what had occurred during the missing minute on her home computer and then emailed those notes to her office email address and to Sergeant McGetrick.
[44] For some unexplained reason, Sergeant McGetrick did not receive the response from Detective O'Connell until after the preliminary hearing on January 8, 2011.
Discussion
[45] The Respondent argued that the failure of the officers to record the first minute of the interview and the fact that they did not have notes about the event until after the fact should cause the entire statement to be suspect and therefore not admitted into evidence.
[46] Similarly, the fact that the meeting between Sergeant McGetrick and the Respondent in the cell blocks was not audio recorded, and that Sergeant McGetrick had notes and no independent recollection of that meeting rendered the content of the meeting suspect.
[47] Counsel for the Respondent argued that the cumulative effect of these two incidents raises a reasonable doubt as to the voluntariness of the statement.
[48] Finally, counsel for the Respondent claimed that the return of the Respondent to the police station rather than to the detention centre after his bail hearing was unwarranted and a relevant circumstance in the consideration of the voluntariness of the Respondent's statement.
[49] The Crown argued that police officers are not expected to record everything he or she saw or said in their notebooks in order to comply with the Crown's disclosure obligation.[^5] In addition, there was no claim that the Respondent made a statement during the visit to him by Sergeant McGetrick in the cell block prior to the Respondent leaving for bail court.
[50] The Crown also submitted that the missing minute of the video recording should not raise a reasonable doubt of the voluntariness of the Respondent's statement. The evidence of both Sergeant McGetrick and Sergeant O'Connell was un-contradicted as to what occurred during that missing minute and that evidence demonstrated that the missing minute consisted solely of introductory type commentary.
[51] Having reviewed the evidence before me in this voir dire, I am not persuaded that either the missing minute of the video recording or the period of time that Sergeant McGetrick spent with the Respondent in the holding cells had any impact on the voluntariness of the statement made by the Respondent.
[52] The explanation, as to the missing minute by both officers was reasonable. There was no evidence to suggest that anything improper occurred during that period of the interview. Both officers testified that they believed the video equipment was operating as it should.
[53] I also accept Sergeant McGetrick's evidence that notwithstanding her lack of recollection of meeting with the Respondent in the cell blocks, that she would never have discussed anything of consequence regarding his case in such a public location with other detainees in the area, particularly on a case with as sensitive charges as in this case.
[54] While Sergeant McGetrick had no recollection of the conversation itself, her observation of the cell block video recording, and her evidence that the Respondent was going to bail court prior to his interview and then going to be returned to the police station for his interview makes her supposition that she was simply informing the Respondent of this process a reasonable one, particularly in light of the fact that almost immediately after this discussion, the Respondent was indeed transported to bail court.
[55] Counsel for the Respondent argued that those two incidents taken together with the fact that there was a failure to comply with the remand warrant should render the statement involuntary.
[56] I disagree with counsel for the Respondent. There was no specific requirement in the warrant of remand requiring the Respondent to be transported directly to the remand centre. I agree that it was apparently an unusual occurrence for a prisoner to be returned to the police station rather than transported to the remand centre after bail court, however, there was nothing before me to demonstrate that this was prohibited.
[57] Even if I am incorrect about the interpretation of the general wording of the warrant of remand, the fact that the Respondent was returned to the police holding cells rather than the remand centre does not affect the voluntariness of his statement, I do not find that this technical violation of the warrant of remand was sufficient to render the statement involuntary. To do so, there would have to be some evidence that the Respondent did not possess an operating mind or there would have had to be some other evidence of police misconduct in the form of having offered an inducement, using trickery, etc.
[58] The Respondent was remanded into custody and therefore, I do not find there was an unwarranted or arbitrary detention. Counsel for the Respondent did not bring a Charter Application claiming this.
Conclusion
[59] In all of the circumstances, I was satisfied that the Crown had met the onus of proving the Respondent's statement to be voluntary. Accordingly, I found that the Respondent's statement was admissible at trial.
Madam Justice B. R. Warkentin
Released: November 12, 2012
COURT FILE NO.: CR-10-5086 DATE: 2012-10-12
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen Applicant
- and –
Steven Boone Respondent
Reasons on Voluntariness Application
Warkentin J.
Released: November 12, 2012
[^1]: R v Boone, 2012 ONSC 51 (SCJ) Gordon J. [^2]: 1984 CanLII 126 (SCC), [1984] 2 S.C.R. 555 [^3]: R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, para 47 [^4]: R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38 at paras. 47, 71. [^5]: R. v. Machado, 2010 ONSC 277, [2010] OJ No 387 (SCJ) at para 121.