ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 0040/10
DATE: 20120306

B E T W E E N:

HER MAJESTY THE QUEEN

Serge Hamel, for the Applicant

Applicant

• and -

WILLIAM BATISSE

David Bennett, for the Respondent

Respondent

HEARD: February 12, 2013

D E C I S I O N

WILCOX, J.

1William Batisse is charged with two counts of invitation to sexual touching, three counts of sexual exploitation, three counts of sexual interference and three counts of sexual assault alleged to have taken place in a six year span between 1989 and 1994.

2The defence brought an application to have the accused’s statement to police of March 12, 2010 excluded from evidence pursuant to s. 24(2) of the Charter on the grounds that his rights under s. 7, 10(b) and 11(c) of the Charter were breached or, in the alternative, because it was not made voluntarily.

3A preliminary issue arose regarding the entry into evidence on this Application of a pre-sentence report that had been prepared regarding the accused. On November 16, 2012, I found the pre-sentence report to be admissible in evidence in this Application.

4THE STATEMENT

The Statement

5The audio-video recording of the accused’s statement was played in court. It was on two DVDs, marked as Exhibits 1 and 2. A transcript is in the Application Record.

6OPP Sergeant Ryan Dougan testified as to how the accused came to give the statement. On March 7, 2010, he had contacted the accused for the first time, by telephone, and asked if the accused could come and see him because he was conducting an investigation regarding sexual assault and the accused’s name had come up as a possible suspect. They spoke only briefly and the officer did not disclose the allegations nor any complainants’ names. The accused readily agreed to come in. There was no further discussion at that time nor prior to the interview nor during the interview that was not recorded. The accused attended the police station on Friday, March 12, 2010 where Sergeant Dougan escorted him to an interview room where the statement was taken, commencing at 9:03:39. At the beginning of the interview, Sergeant Dougan introduced himself and had just begun explaining about the audio and visual recording when the accused blurted out, “I hate doing that” and “I hate doing it”, without identifying what he was referring to. Sergeant Dougan finished explaining about the recording and then said that he was conducting an investigation, that it is “somewhat dated” and “historical”, and that “it’s regarding some sexual assaults”.

7Sergeant Dougan then advised the accused that he was not under arrest, but that the accused had “the right to call and consult a lawyer … right now”. There was some further discussion before the accused opted to call duty counsel at the 1-800 number.

8I note that the advice of Sergeant Dougan to the accused confuses two different steps. One is the right to consult counsel, whether one of the accused’s choice or duty counsel. The other is the ability to apply to the Ontario Legal Aid Plan to get a certificate to retain a lawyer. However, the result was that the accused opted for calling the 1-800 number and was given the opportunity to speak to duty counsel at 9:26:15.

9Before the accused is put in contact with duty counsel, however, Sergeant Dougan also advised him as follows, “The only other thing that I have to tell you, I guess, is that, ah, because this room is audio and videotaped, and because we’re conducting an investigation, anything that’s said in this room can obviously be used as evidence”. There was a further caution to ignore any threats or promises and then the accused is put into contact with duty counsel.

10To be clear, Sergeant Dougan did not record the accused’s telephone conversation as part of the videotaped statement.

11After the telephone call, the interview resumed with small talk. Eventually, Sergeant Dougan inquired as to why the accused thought he was being interviewed. The accused responded that it was probably about allegations that he touched “B.”, adding that “I never did nothing”. After some conversation regarding B., Sergeant Dougan advised that he actually wanted to talk to the accused about “L.”. The accused’s reaction indicates that he was aware that she had been saying that he had touched and raped her, which he denied doing. There followed a long conversation in which Sergeant Dougan refers to what he claims to know happened between the accused and L.. The references are vague at first, but became more specific as the interview went on. The accused began to indicate repeatedly that he did not want to talk any more about it at that time, but Sergeant Dougan insisted that it had to be dealt with right then. His explicit evidence was that his goal was to get a statement or admission. The accused initially gave various denials or indicated a lack of memory, but with some vague suggestion of truth in some allegations until, on page 73 of the transcript, he stated that some part of an allegation was true. After that, he admitted to some touching of the accused by L. and that they “did have sex”, perhaps on two occasions.

12THE CHARTER

The Charter

13S. 7 of the Charter reads as follows:

Everyone has 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.

10. Everyone has the right on arrest of detention

(a) to be informed promptly of the reasons therfor;

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

14THE ACCUSED’S INTELLECTUAL CHALLENGES

The Accused’s Intellectual Challenges

15The first matter to be considered is the level of intellectual functioning of the accused, as it affects the treatment of other issues. The pre-sentence report about the accused was authored by Probation and Parole Officer Sue Dane and dated January 13, 2012. On page five, the report says:

a new psychological assessment was requested from the Cochrane-Temiskaming Resource Centre (CTRC) so that more recent findings could be included in this report. Due to anxiety issues, the subject was not able to complete the assessment interviews in a timely manner. Kelly Wheeler, community support worker, reported that the assessment was taking longer to complete than any other they had encountered.

16Elsewhere, the pre-sentence report contains statements about the accused’s intellectual abilities or lack thereof. The accused’s mother told the PSR’s author that the accused had been assessed and labeled as “mentally retarded”. Also, documents were obtained by Ms. Dane from the accused’s file from the Cochrane-Temiskaming Resource Centre and referred to in the PSR. A psychometric report from January, 1979 said that the accused experienced difficulties with all subjects at school. Testing showed his intellectual functioning was in the borderline normal range. Two doctors referred to him as “retarded”. Other reports referred to developmental delay.

17Sergeant Dougan testified that he had not known the accused before this investigation, has spoken to other police officers about the accused after receiving the complaint, but knew little about him. He opined that the accused had a very good understanding of the English language and was not under the influence of alcohol or drugs during the interview. However, he described the accused as a “pretty simple guy” and “not very sophisticated”.

18These descriptions of the accused indicate that, where his personal characteristics are relevant, there must be some allowance made for his relatively low level of intellectual functioning.

19RE: DETENTION

Re: Detention

20Given the wording of s. 10 of the Charter, the issue of when the accused was arrested or detained arises.

21Sergeant Dougan testified that he had telephoned the accused and asked him to come in and see the officer who was conducting an investigation in which the accused was a possible suspect. The accused had attended at the police station voluntarily. At the station, Sergeant Dougan advised him that he was not under arrest. The officer’s position was that the accused was free to leave, but he admitted that the accused was not told that, even when, later on in the interview, the accused resisted talking further. In fact, Sergeant Dougan persisted in interviewing the accused over the latter’s objections, going so far as to say, “it is something that needs to be dealt with right now”.

22At that point, Sergeant Dougan had only the complainant’ information. He said that he has arrested and charged people on less, but had not yet decided on charges in this case. He wanted the accused’s response to the allegations before going further. However, he clearly indicated to the accused that he believed the latter had committed offences against L..

23The officer indicated that his position on detention changed after the accused began making admissions, starting on page 73 of the transcript, such that the accused would have been arrested if he had tried to leave. Again, the accused was not told that. Sergeant Dougan said that the accused was arrested after the videotaped statement.

24The officer’s evidence regarding the time of arrest is contradicted by the arrest report which gives it as 9:40 a.m., around the time when the videotaped statement began. This report was done by Constable Marcotte, except for the synopsis part which was Sergeant Dougan’s and which does not say the accused was arrested at all. In his testimony, Constable Marcotte did not recall who entered the arrest time in the report, but denied that he had. He thought that the information in the report was accurate, but allowed that the arrest time could be mistaken. He had not been at the station at 9:40 a.m., having been in a meeting elsewhere until 10:17. He was not involved until 2:41 p.m.when he processed the accused after Sergeant Dougan’s interview. His evidence was that Sergeant Dougan had performed the arrest.

25In R. v. Moran, (1987) 1987 124 (ON CA), 36 C.C.C. (3d) 225, the Ontario Court of Appeal had this to say about detention:

I venture to suggest that in determining whether a person who subsequently is an accused was detained at the time he or she was questioned at a police station by the police, the following factors are relevant. I do not mean to imply, however, that they are an exhaustive list of the relevant factors nor that any one factor or combination of factors or their absence is necessarily determinative in a particular case. These factors are as follows:

1. The precise language used by the police officer in requesting the person who subsequently becomes an accused to come to the police station, and whether the accused was given a choice or expressed a preference that the interview be conducted at the Police station, rather than at his or her home;

2. Whether the accused was escorted to the police station by a police officer or came himself or herself in response to a police request;

3. Whether the accused left at the conclusion of the interview or whether he or she was arrested;

4. The stage of the investigation, that is, whether the questioning was part of the general investigation of a crime or possible crime or whether the police had already decided that a crime had been committed and that the accused was the perpetrator or involved in its commission and the questioning was conducted for the purpose of obtaining incriminating statements from the accused;

5. Whether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated;

6. The nature of the questions: whether they were questions of a general nature designed to obtain information or whether the accused was confronted with evidence pointing to his or her guilt;

7. The subjective belief by an accused that he or she is detained, although relevant, is not decisive, because the issue is whether he or she reasonably believed that he or she was detained. Personal circumstances relating to the accused, such as low intelligence, emotional disturbance, youth and lack of sophistication are circumstances to be considered in determining whether he had a subjective belief that he was detained.

26In view of this, I find that the accused was detained at least by the point on page 73 of the transcript at which he began to make self-incriminating disclosures, at which point his s. 10 rights arose.

27RE: CHARTER S. 10(a)

Re: Charter s. 10(a)

28It is clear in my view that the accused was not afforded his right to be informed promptly of the reason for his detention. He was not even informed that he was detained, let alone any reasons for that detention. At best, he would have known from the conversations with Sergeant Dougan that the police were investigating vague allegations against him by L., some of which he denied.

29RE: CHARTER S. 10(b)

Re: Charter s. 10(b)

30Defence counsel argued that the accused’s s. 10 (b) rights were breached on two occasions.

31Firstly, when the accused was allowed to speak with the duty counsel, it was meaningless because the accused had not been advised of his legal situation.

32Secondly, when the accused is detained, when he should have been, but was not, informed of his right to retain instruct counsel.

33The Crown counsel’s position was that the accused had been informed of his right to counsel, although not in the standard wording on the card carried by police, and that the accused had exercised that right when he spoke with duty counsel. Furthermore, the accused knew what the interview was about. Even if he thought he was going to be questioned regarding B., the jeopardy he faced was the same kind as he faced with L.. He knew he could go to jail.

34I note that Sergeant Dougan testified that he believed that he had mentioned it was regarding a sexual assault when he placed the call to duty counsel for the accused.

35The purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice about his situation, such as whether to cooperate with the police investigation, by providing him with access to legal advice about the situation he is facing. This purpose might be achieved by a single consultation at or shortly after the time of detention. Sometimes, however, further consultations are required to allow the detainee to get the advice he needs in order to decide whether to cooperate. The situations in which a further consultation is necessary include:

1. when new procedures arise in the investigation which would not have been within the contemplation of the advice of the advising lawyer at the time of the initial consultation

2. when the investigation takes a new or more serious turn, such that the initial advice may no longer be adequate

3. where the detainee may not have understood that the initial rights to counsel included the right to further consultation. (R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310).

36“S. 10(b) should not be read in isolation. Its ambit must be considered in light of s. 10(a). S. 10(a) requires the police to advise an individual who is arrested or detained of the reasons for such arrest or detention. The rights accruing to a person under s. 10(b) arise because he has been arrested or detained for a particular reason. An individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy.”¹

37That the individual is informed of his right to counsel before the actual detention is not determinative. Where he was informed prior to detention of his s. 10(b) rights, that might be sufficient if he is detained a short time later when there is a sufficient factual connection relating the warning to the detention and the reasons for it.²

38At the time when the accused was given his s. 10(b) rights, all he had been told about why he was meeting with the police was that Sergeant Dougan was investigating some historical sexual assaults and that the accused was a suspect. “Sexual assault” covers a wide range of activities, with a correspondingly wide range of potential jeopardy. Also, it appears that the accused thought that the alleged victim was “B.”. There was no indication of what the details of the allegations against him were. In any event, he denied offending against B.. Compare this to the situation which subsequently came to light regarding L., which appears to involve full intercourse.

39Applying the law to the situation, it is apparent that the accused did not initially know the reason for the interview nor the extent of his jeopardy. Further opportunities to consult counsel should have been provided when he was made aware that the allegations involved L. and again when he began to disclose regarding L. (at page 73 of the transcript) by which point he is considered to be detained. The police should have, at those points, stopped the interview and provided him with further opportunities to speak with counsel. Therefore, I find that the accused’s s. 10(b) rights were breached.

40RIGHT TO SILENCE

Right to Silence

41Defence counsel submitted that the accused was not informed of his right to remain silent and was forced to incriminate himself in breach of s. 7 and 11(c) of the Charter.

42At the outset of the interview, and before the accused spoke with duty counsel, Sergeant Dougan advised him as follows:

the only other thing that I have to tell you, I guess, is that, ah, because this room is audio and videotaped, and because we’re conducting an investigation, anything that’s said in this room can obviously be used as evidence.

It’s up to you if you want to talk, okay?

43Defence counsel pointed out that the accused was never told that one of his choices was to say nothing.

44Crown counsel submitted that, in effect, the advice given the accused by Sergeant Dougan was adequate.

45Later in the interview, after it was made clear to the accused that, in fact, it was L. that Sergeant Dougan wanted to talk about and after the accused repeatedly indicated that he did not want to talk about it then, but would on another day, the officer persisted in questioning him. Moreover, he told the accused that “it is something that needs to be dealt with right now”, “we need to move forward”, “talk to me” and “we need to deal with this”.

46The right to silence arises at the investigative stage.³ The police are not necessarily required to refrain from questioning a detainee who states that he does not wish to talk. However, “under both the common law and Charter rules, police persistence in continuing an interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that the subsequently obtained statement was not the product of a free will to speak to authorities”, and is not voluntary.⁴ “The mere presence of a doubt as to the exercise of the detainee’s free will in making a statement will suffice to ground a remedy.”⁵

47In the circumstances of this case, I find that the accused was effectively denied his right to silence in breach of s. 7 of the Charter.

48It follows that the Crown will be unable to prove the voluntariness of the accused’s statement beyond a reasonable doubt.⁶

49Therefore, the statement is excluded from evidence. It is not necessary, then, to deal with the effect of the other Charter breaches in a s. 24(2) analysis.

Footnotes

1. 1R. v. Black, 1989 75 (SCC), [1989] 2 S.C.R. 138.
2. 2R. v. Schmautz, 1990 134 (SCC), [1990] 1 S.C.R. 398.
3. 3R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293.
4. 4R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 Headnote.
5. 5R. v. Singh, Supra
6. 6R. v. Singh Supra