ONTARIO
SUPERIOR COURT OF JUSTICE
INDICTMENT NO.: J-11-3244
DATE: 2013-01-11
B E T W E E N:
Her Majesty the Queen
Craig Fraser and Steven O’Brien, for the Crown
Applicant
- and -
Jeremy Hall
Dirk Derstine and Stephanie DiGiuseppe, for the Respondent
Respondent
HEARD: in Hamilton on January 8, 2013
LOFCHIK J.
Ruling Re Voluntariness Of Statement Of Accused
[1] This is an application by the Crown for an order that statements made by the accused, Jeremy Hall, to police on June 23rd and June 28th, 2006 were voluntary and are admissible at trial.
[2] The statements made on June 23rd were to Detective Mike Maloney, who at the time was the chief investigator into the disappearance of Billy Mason whose murder is the subject matter of this prosecution.
[3] Detective Maloney testified that when he became the lead investigator in the case in April of 2006 there were a number of stories being investigated about Mason being abducted at gun point. One person mentioned in connection with the case was Jeremy Hall.
[4] In June of 2006 Maloney had information from a witness, who had seen Mason being held at gun point, that Billy had been involved in a drug rip off of the Hells Angels and that a man named “Jeremy” said Billy had got him in trouble with the Hells Angels as a result of that drug rip. It was her information that it was “Jeremy” who she witnessed holding the shotgun on Billy and taking him from his apartment. She heard Billy say to the man “Jeremy we have been the best of friends for a long time”.
[5] The witness described “Jeremy” as having slicked back hair and looking Italian. The witness looked at pictures Maloney had in his book of everyone associated in the case and when she looked at Hall’s picture she said “I don’t know him”.
[6] When shown a photo lineup which had been previously prepared she picked out Hall’s picture and said that the man looked like him except his hair was slicked back. Upon being asked if the man in the picture had slicked back hair would that be the man with the shotgun, she replied “No! That’s not him.”
[7] Detective Maloney testified that after that he did not consider Jeremy Hall to be a suspect in the disappearance of Billy Mason nor a person of interest with respect to the matter.
[8] On June 23rd, 2006, Detective Maloney received information that Hall had been arrested the night before on outstanding warrants not related to the Mason case and was in the cells at Central Police Station. As Hall’s name had come up in the investigation into the disappearance of Billy Mason, he decided he would interview Hall in connection with the case. He described this as one of many investigative actions which were carried out during the investigation into Billy Mason’s disappearance.
[9] It was Detective Maloney’s evidence on the voir dire that when he went to see him, Hall had no status either as a suspect or person of interest in connection with the case. As he had information that there were other persons named “Jeremy” associated with Billy Mason that fit the witnesses description of the man with the shotgun, and as the witness to Billy’s abduction had indicated Jeremy Hall was not the man with the shotgun, Maloney felt there were no reasonable grounds to suspect that Hall was involved in the Mason case.
[10] Maloney went to Hall’s cell and asked Hall to accompany him to an interview room where the interview was recorded. Hall complied with his request without any objection or hesitation.
[11] During the interview, Hall denied any knowledge of the Billy Mason matter which Maloney accepted at face value.
[12] Hall kept bringing the conversation back to the issue of protection of his family as he had concerns for their safety after his house had been shot up the previous Halloween. During the interview Maloney told Hall that police could offer protection to his family and inquired as to from whom they needed protection to which Hall replied “Hells Angels”. Hall was refusing to give details with respect to the reasons for concern for his family’s safety.
[13] Maloney testified on the voir dire that he would have a colleague from the Biker Enforcement Unit contact Hall with a view to discussing the protection of Hall’s family to which Hall appeared to agree. Maloney subsequently contacted Detective Paul Staats to go and speak to Hall about Hall’s concerns for the safety of his family. It was Maloney’s evidence that he did not give Staats any information in respect of the Billy Mason case when he requested that Staats speak to Hall. Sometime later he spoke to Staats who confirmed that he had met with Hall.
[14] Maloney testified that Hall’s status with respect to the Billy Mason case did not change as a result of the interview and that there was no further follow up investigation by him of Hall after the interview. He testified that he considered the interview with Hall to be an investigative interview and that he did not caution Hall prior to the interview because he had no suspicion that Hall was involved in Mason’s disappearance.
[15] Detective Paul Staats testified that on June 28, 2006 he interviewed Hall at the request of Detective Maloney as a representative of the Biker Enforcement Unit. He did not record the interview because he had no intention to investigate Hall with respect to any criminal offence or to arrest him if admitted to criminal activity. This was the only occasion when he talked to Hall and he testified that was hoping to gain some intelligence with respect to biker activity from Hall at the meeting.
[16] Staats’ notes of the interview indicate that Hall advised him that he had ripped off one Kevin Gentles of some cocaine, hash oil and cash which he subsequently found out was the property of the Hells Angels. This caused him to be concerned about the safety of his wife and family, even more so after his house got shot up by persons unknown.
[17] Detective Staats testified that at the time of the interview Hall knew he had been incarcerated for various driving offences and that he voluntarily attended the interview in the interests of seeking protection for his family.
[18] Staats further testified that he told Hall it was the duty of the police to protect the public and that he gave Hall his cell number and told him that his common-law wife could call about any safety concerns and the police would take steps to protect her. He testified that he did not ask for anything in return for his assurances of protection.
[19] Staats was subsequently contacted by Hall’s common-law wife. At the time of the call she did not feel that there was any specific threat and Staats did nothing further with the information which Hall had provided.
[20] Approximately four years after this interview a witness that the Crown relies on as a witness to the murder of Billy Mason came forward and gave police information concerning the death of Billy Mason. Part of that information was that Hall abducted and murdered Billy Mason because Mason had got Hall involved in a drug rip which turned out to be from the Hells Angels and as a result endangered Hall and his family. The Crown now seeks to admit the information which at the time of the interviews in question appeared innocuous, as evidence of motive for the murder of Billy Mason by Jeremy Hall.
Position of the Defence
[21] Defence counsel argues that the statements sought to be admitted were not voluntary and should therefore be excluded.
[22] He argues firstly that the statements were induced by promise of favour both implicitly and explicitly, namely the promise to protect Hall’s family in exchange for information.
[23] He also argues that the failure to caution Hall with respect to his right to silence and right to counsel violated his Section 7 and Section 10(b) Charter rights so as to leave him unable to make an informed decision as to whether or not to speak to the police rendering the statements inadmissible.
[24] Defence counsel also argues that the failure to record the Staats interview makes it suspect for voluntariness (see R. v. Moore-McFarlane (2001), 56 O.R. (3d) at paras. 65 and 67).
Analysis
[25] Upon examination of the facts surrounding the interviews I am satisfied beyond a reasonable doubt that the statements made by Jeremy Hall were voluntary.
[26] While the accused was incarcerated at the time the interviews were conducted, he was not “detained” so as to trigger Section 7 or 10(b) of the Charter. His incarceration was for reasons unrelated to the disappearance of Billy Mason and had no connection with the case. He was at the time neither a suspect or person of interest in the case.
[27] The interview conducted by Detective Maloney was an investigative interview conducted under these circumstances because it was convenient. Hall was at the police station and Maloney was to interview him because his name had come up in the course of the investigation not because Maloney believed Hall had committed a crime.
[28] When one applies the test set out by the Ontario Court of Appeal in R. v. Moran, 1987 124 (ON CA), [1987] O.J. No. 794 at p. 22, an objective assessment of the facts leads to the conclusion that Hall was not detained in law so as to require him to be cautioned as to the right to silence or advised of the right to counsel. The situation with respect to both interviews was that:
• He was already incarcerated on another matter and merely requested to go from his cell to the interview room.
• At the conclusion of the interview he was returned to whence he came and not arrested in connection with the Billy Mason matter.
• The questioning during the Maloney interview was part of a general investigation of the crime. At the time the police had not decided what crime, if any, had been committed or that the accused was the perpetrator or involved in its commission and the questioning was not conducted for the purpose of obtaining incriminating statements from the accused.
• The police did not have reasonable and probable grounds to believe that the accused had committed the crime being investigated.
• The nature of questions put to the accused were of a general nature designed to obtain information rather than being confrontational putting evidence pointing to his guilt to the accused.
• There is no reason to believe the accused understood or believed that he was being detained in relation to the Billy Mason matter.
• With respect to the Staats interview there was no mention of the Billy Mason matter.
[29] I find that no reasonable person in the circumstances of either interview would conclude that at any time the accused was deprived of his liberty to choose whether or not to speak to the police. Indeed, particularly during the Maloney interview, the accused declined to answer some of the questions put to him showing he understood that he had no obligation to answer the questions.
[30] In hindsight the gist of the interviews on both occasions appears to be a concerted effort on the part of the accused Hall to seek protection for his family.
[31] The accused was not required to comply with any demand or direction by police at any time. The interview with Detective Maloney unfolded as a conversation between two willing participants, albeit with some interest by police in the Billy Mason disappearance. These inquiries were deftly handled by the accused and he was always able to redirect the conversation back to the subject to protection for his family.
[32] The only facts solicited during the Staats interview from the accused were facts which the police would need to know in offering protection for Hall’s family.
[33] The accused made a conscious choice to participate freely in the Maloney interview. The accused’s objective was to illicit from the police protection for his family. This scenario is fully supported by the Staats interview, agreed to by the accused in which the accused repeated in detail his problem and continued his request for police protection for his family. The disappearance of Billy Mason never came up during the Staats interview. Detective Staats was not privy to any pertinent information about the disappearance of Billy Mason. He had not been directed prior to his interview with accused by Detective Maloney to pursue the issue of Billy Mason’s disappearance in any way.
[34] It was never the police position that in order to obtain the protection he was seeking for his family the accused must come up with information which the police were seeking either with respect to the disappearance of Billy Mason or any other matter.
[35] On review the interview leads to the conclusion that the police did not request or expect anything in return for offering protection to Hall’s family so that it cannot be said that any statements were made as the result of any inducements or offers of favour from the police.
[36] The fact that there was no further action with respect to Hall following the interviews confirms the fact that the information was not being sought to further the investigation of him as a suspect.
[37] So far as the Staats interview not being recorded, the case of Moore-McFarlane has no applicability for the following reasons:
• Staats was not interviewing the accused as even a person of interest for the commission of any crime let alone a suspect in the disappearance of Billy Mason.
• Staats had no idea why the accused wanted to speak to him.
• Staats had no intention to interrogate the accused about any matter.
• Staats recorded contemporaneous notes of the interaction with the accused.
• There is no “confession” by the accused, such as the trier of fact needs to assess reliability.
• There is credible detail in Staats notes concerning the drug rip by the accused and the perceived need to have his family protected. There is nothing obviously suspect in this information which is generally in accord with the limited conversation with Detective Maloney, and it is only information that could have come from the accused.
[38] The accused was not a criminal neophyte in these matters. As his record reflects he had many police interactions over the years. In assessing both interviews with police, the accused’s level of sophistication was high. There was never a sense in either police interview that the accused was in over his head, or that his jeopardy was increasing. In fact, the opposite is more accurate. In the end the accused obtained what he was after, an assurance from police for the protection of his family without incrimination in any way, at the time, for the disappearance of Billy Mason.
[39] It was not until four years later when a new witness to the death of Billy Mason came forward and suggested that the murder was because of a drug rip involving the Hells Angels that the statements made by Hall in June 2006 became of significance with respect to the issue of motive. The fact of incrimination by the accused in hindsight, while unfortunate to him, is not unfair to him.
[40] I find evidence of both interviews to be voluntary.
LOFCHIK J.
Released: January 11, 2013
INDICTMENT NO.: J-11-3244
DATE: 2013-01-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Applicant
- and –
Jeremy Hall
Respondent
RULING RE VOLUNTARINESS OF STATEMENT OF ACCUSED
LOFCHIK J.
TRL:mg
Released: January 11, 2013