ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR12400004050000
DATE: 20130604
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
G.C.
Respondent
Patricia Garcia, for the Crown
Dan Brodsky, for the Respondent
HEARD: May 6, 2013
B. P. O’marra j.
ruling RE: ADMISSIBILITY of post-arrest STATEMENTS TENDERED BY THE CROWN
OVERVIEW
[1] G.C. was arrested by members of the Toronto Police Service on October 11, 2011. He was charged with sexual assault and other related offences wherein the complainant was his 18 year old stepdaughter.
[2] The Crown seeks admission of utterances made by G.C. after his arrest in four distinct circumstances that day:
(1) Utterances made by G.C. while he was being transported to the Police Station. These utterances were audio recorded.
(2) Utterances made by G.C. at the time of his booking at 32 Division of Toronto Police Service. These utterances were captured on audio and video.
(3) Utterances made by G.C. in response to questions from the officer in charge in an interview at 32 Division. These questions and answers were audio recorded.
(4) A series of utterances allegedly made by G.C. to the officer in charge after the audio equipment had been turned off. These utterances were subsequently summarized in note form by the two officers present.
position of the parties
[3] The Crown seeks to admit all utterances made by the accused to the police following his arrest. The defence have not filed any Charter applications but oppose admission based on the traditional common law voluntariness rules. The defence do not consent to the admission of any of the utterances but made no submissions in regard to the first three audio recorded utterances. The sole contentious issue on this application relates to the admissibility of the unrecorded conversation that occurred at 32 Division.
[4] The accused did not testify on the voir dire.
evidence on the application
1. The Arrest and Transport to 32 Division
[5] Detective Dan Darnborough was the officer in charge of this investigation. He has 40 years experience with the Toronto Police Service. On October 11, 2011 he responded to a call in regard to an alleged sexual assault. He and other officers attended and received information from the complainant M.B. The allegation was that the accused who was her stepfather sexually assaulted her and committed other offences earlier that day. The police received further information from the complainant’s mother. Shortly thereafter, the accused was observed by the police in a motor vehicle near his home in Toronto. The accused was ordered to get out of the car and that he was under arrest for sexual assault. Officer Luchian escorted G.C. to his cruiser for transport to 32 Division. G.C. was apparently cooperative and compliant from the time that he was told that he was under arrest. Before the accused had been placed in the cruiser he was handcuffed behind his back. He was cautioned and advised of his right to counsel.
[6] On route to the station G.C. carried on a conversation with Officer Luchian that included some information of potential relevance to the charges. The entire conversation was recorded on audio. There is no evidence of any promises, threats or inducements held out to G.C. by either the arresting officers or the transporting officers. The audio tape of that conversation lasts slightly over 21 minutes. A transcript of the conversation was filed as Exhibit “G” on the voir dire.
2. booking room video tape utterances
[7] G.C. was presented to a senior officer for the purposes of booking him at the station. The entire dealings between G.C. and the police in the booking process were captured on audio and video. A transcript of that conversation was filed as Exhibit “H” on the voir dire.
3. Interview with G.C. at 32 division
[8] Shortly after 3 p.m. on October 11, 2011 Detective Darnborough entered the interview room where G.C. had been left by the uniformed officers. Officer Darnborough was accompanied by Constable Vilvanathan. He was a training officer whose sole purpose in going into the room was to observe the accused and make notes. The interview was to be conducted by Detective Darnborough.
[9] Officer Darnborough brought a digital audio recorder with him into the room and intended to record the interview. The interview commenced at approximately 3:05 p.m. and is captured on audio with a conclusion at 3:15 p.m. A transcript of that conversation was filed as Exhibit “I” on the voir dire. The recorded interview dealt primarily with biographical and background information regarding G.C.. Some questions were asked about the family situation but there are no recorded questions and answers relating to the specific allegations other than the officer confirming with G.C. the nature of the charges.
[10] Office Darnborough took steps to confirm that G.C. understood that he had been arrested for sexual assault and also allegations of choking and threatening.
[11] Officer Darnborough repeated the right to counsel including reference to free advice from a Legal Aid lawyer. When that was done G.C. was asked if he wished to call a lawyer now. He responded “Yeah. If it’s handy, it’d be good”. G.C. was also cautioned in regard to any statements he might make. G.C. indicated that he understood both his right to counsel and the caution. Towards the very end of this audio recorded interview, G.C. was asked if he wanted to call duty counsel. G.C. responded “Ah yeah. I can’t afford one because I’m really in big problems with debt. Trying to keep up with the lifestyle and paying loans.” Officer Darnborough then said that he was going to stop the tape and make a phone call for G.C..
4. the unrecorded utterances of G.C.
[12] The audio recorded questions and answers between Officer Darnborough and G.C. last approximately nine minutes and 55 seconds.
[13] Officer Darnborough testified that when he got up to leave the room he remembered that he had wanted to ask G.C. about a particular tattoo that he had. This was a significant matter because the officer had earlier spoken to the complainant M.B. who said that in the course of the alleged sexual assault the accused had referred to her as “Lindsay”. Lindsay was not her name but she had seen a tattoo on the accused’s shoulder which included the name “Lindsay”. The accused, in response to the question about the tattoo, is alleged to have said that Lindsay was a former girlfriend of his and that he was not sure what he had said to M.B.
[14] There then follows almost ten minutes of unrecorded conversation in which G.C. is alleged to have said several things to the officers, some of which would be of potentially significant relevance to the charges he faced. Amongst the utterances allegedly made by G.C. were that had a bad dream some two weeks prior about having oral sex with the complainant M.B.
[15] Officer Darnborough at no time turned on the recorder during the exchanges that followed his question about the tattoo. On this application Officer Darnborough indicated that he believed that he told G.C. twice to wait for duty counsel before saying anything further. Officer Darnborough indicated that he had turned off the recorder as he planned to walk out of the room and that G.C. “blurted out” information.
[16] In examination in chief, Officer Darnborough said that he had asked about the tattoo since it was relevant to personal information related to G.C.. His notes of what occurred after the recorder was turned off are not a verbatim record of what was said by G.C..
[17] In cross-examination, Officer Darnborough indicated that he had entered the room with a small digital recorder that was easily and quickly turned on or off. He agreed that G.C. provided information that was not audio recorded that would have been useful information in the investigation. He said that he did not expect these further comments as he was leaving. In hindsight, he said it would have been “a good idea” to have turned the recorder back on. He testified that he was aware that what was said by G.C. after his request to contact duty counsel would not likely be admissible. He also knew that the “Lindsay tattoo” could have investigative significance. Other than asking about the tattoo, Officer Darnborough does not recall asking any other questions.
[18] Constable Vilvanathan accompanied Officer Darnborough into the interview room. His role was to observe the accused and to make notes. He testified that the unrecorded conversation lasted some ten minutes after the audio recorder was turned off at 3:15 p.m. His notes of what occurred after the recorder was turned off were not verbatim but were “the scope of the interview”. He did not record any questions but rather the “scope of the answers”. At the time he was not aware of the significance of the tattoo and reference to Lindsay. He deferred to Officer Darnborough in the conduct of the interview in any event.
[19] Neither Officer Darnborough or Officer Vilvanathan reviewed their notes with G.C. or allowed him to know what was in the notes.
analysis
[20] The onus is on the Crown to prove that all utterances attributed to the accused were made voluntarily as defined in law. Counsel for G.C. does not consent to the admission of any of the utterances made after the arrest but makes no submissions in regard to all of the conversations that were recorded on audio. In regard to all of the utterances that were captured on audio there is no indication of threats, promises or inducements or any other impediment to proof of the voluntariness of those utterances. I find that they were all voluntarily made and are admissible in accordance with the test for voluntariness set out in the Supreme Court of Canada in R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 (S.C.C.).
[21] The real issue on this application relates to the unrecorded conversation that occurred after Officer Darnborough turned off the recorder and asked about the tattoo.
[22] There is no absolute rule requiring that the statements of accused persons in police custody be recorded on audio or video.
R. v. Oickle (supra) at para. 46.
[23] However, where a suspect is in custody and recording facilities are readily available and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record the context inevitably makes the resulting non-recorded interrogation suspect.
R. v. Moore-McFarlane (2001) 2001 6363 (ON CA), 160 C.C.C. (3d) 493 (O.C.A.) at para. 65.
R. v. Marshall 2005 30051 (ON CA), [2005] O.J. No. 3549 (O.C.A.) at para. 98.
[24] Assuming the Crown can put forward a record sufficient to establish voluntariness the question of the accuracy of what police recorded is a matter of weight and not admissibility.
R. v. Khari [2012] O.J. No. 4649 (O.S.C.) at para. 83.
[25] The facts on this application do not disclose a spontaneous or unprompted outburst by G.C. after the recorder had been turned off. The comments made by G.C. were triggered by an important question from the lead officer on a matter that was known to be significant to the investigation. It is hard to see how a senior officer in this circumstance could fail to appreciate that in response to a question about the tattoo, the accused may well make responses that are relevant to the investigation.
[26] Officer Darnborough made choices after he turned off the recorder. He could have turned on the recorder by a flick of the switch early on in those ten minutes. He could have turned it on part way through the ten minute period. He could have turned it on at the end and attempted to at least capture on audio a summary of what had been said by G.C.. He could have reviewed his notes with G.C. for his comment, clarification, acknowledgement or denial. Officer Darnborough did none of these things and the court is left with a very unsatisfactory record upon which to determine whether the utterances that were not recorded were in fact voluntarily made.
[27] There was no Charter application in this proceeding but it is interesting to note that the officer was aware that once the accused wished to access counsel there was a duty to hold off on further investigative questions.
[28] The police had total control of whether to record these comments but in fact only recorded the inconsequential matters that preceded it. In the ten minutes that are not audio recorded the accused is alleged to have made a wide range of disjointed comments, some of which are unusual and some of which are potentially very incriminating.
[29] Based on the inadequate record and the unsatisfactory explanation as to why the recorder was turned off and not turned back on, I am simply not satisfied that the utterances allegedly made after the recorder was turned off were in fact proven voluntary as defined in law.
result
[30] The utterances of the accused that were captured on audio after his arrest have been proven voluntary and are admissible at trial subject to any editing that is required. The alleged utterances of G.C. that followed the turning off the recorder have not been proven voluntary and thus are inadmissible.
B. P. O’Marra J.
Released: June 4, 2013
COURT FILE NO.: CR12400004050000
DATE: 20130604
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
G.C.
Respondent
RULING
B. P. O’Marra J.
Released: June 4, 2013