ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-8626

DATE: July 31, 2013

BETWEEN:

Her Majesty the Queen

– and –

Brett Dunstan

Defendant

Damien Frost/Mindy Caterina-Neufeld, Counsel for the Federal Crown

Reid Rusonik/Corey Nishio, Counsel for the Defendant

HEARD: June 17, 18, 2013

RULING ON BLENDED VOIR DIRE

RE: ADMISSIBILITY OF VIDEOTAPED STATEMENT

mckelvey j.:

Introduction

[1] The defendant in this action, Brett Dunstan, is charged with possession for the purpose of trafficking of a number of drugs, contrary to the Controlled Drugs and Substances Act. In addition, he is charged with possession of cash which was obtained from the commission of a crime. The trial on these charges is scheduled to take place in December of this year.

[2] Two applications have been brought in relation to a statement made to police by Mr. Dunstan following his arrest. One application is brought by the Crown seeking an order allowing the Crown to introduce the statement as part of its evidence in this matter. The other application is brought by Mr. Dunstan seeking to exclude the statement under Section 10(b) of the Canadian Charter of Rights and Freedoms. With the consent of both parties both applications were heard together. Subsequently, in final argument Mr. Dunstan advised that the Charter issue is not being pursued. As a result, the only issue for consideration is whether the Crown has met its burden of proving beyond a reasonable doubt that Mr. Dunstan’s statement to police was voluntary.

[3] Two witnesses were called by the Crown during the voir dire. Detective Miguel Torres was the arresting officer who conducted the interview of Mr. Dunstan. Detective Constable Ryan Boulay operated the audio and visual which was used to record the statement. No evidence was called by the defence.

[4] The issues raised on this voir dire with respect to the voluntariness of the statement focussed on the following:

(a) Was Mr. Dunstan’s statement the result of an improper inducement by the police, in particular, an inference that his information was needed in order to improve his chances of obtaining bail?

(b) What is the significance of the fact that prior to giving the statement Mr. Dunstan was not advised of his right to remain silent and that any statement he made could subsequently be given in evidence?

The Factual Background

[5] On September 20, 2011, police attended a residence located on Red Ash Drive in the Town of Markham where they located a quantity of controlled drugs and cash, which were seized. At the time of the seizure there was no one living in the home. It was owned by the defendant, Brett Dunstan and his mother.

[6] Police were subsequently able to speak with Mr. Dunstan’s lawyer and learned that Mr. Dunstan was visiting the Philippines. As a result of discussions with his legal counsel Mr. Dunstan attended to surrender himself at the police station at 7:00 a.m. on the morning of September 27, 2011. Following his arrival at the police station Mr. Dunstan was arrested by Detective Torres. He was taken to the booking desk in the police station. The evidence of Detective Torres is that at the booking station he had Mr. Dunstan read a notice which was posted on the booking desk. This notice advised him of his Section 10(b) Charter rights that he had the right to retain and instruct counsel, as well as the right to telephone a lawyer if he wished to do so.

[7] Following the booking process Mr. Dunstan was taken into an interview room by Detective Torres for the purpose of taking a statement. It is this statement which is the subject matter of the voir dire.

[8] Detective Torres acknowledged in his evidence on the voir dire that he did not advise Mr. Dunstan on his right to remain silent nor did he advise him that statements made during the interview could be given in evidence at a later time.

[9] The portion of the statement which the Crown wishes to rely upon deals with Mr. Dunstan’s denial that there was any heroin in his house. At the time of the search of the house Detective Torres testified that he found two small baggies of light brown powder which he believed to be heroin. All of the drug samples were sent to a lab for analysis, but it takes a couple of months for the results to be obtained. In the meantime, one of the offences Mr. Dunstan was charged with was the possession for the purpose of trafficking of heroin. In the end it turned out that the light brown powder was not heroin.

[10] The portion of the statement which the Crown views as being important in the prosecution of the case is as follows:

OFFICER: Do you want to know anything about – more about your charges or do you understand them fully?

DUNSTAN: I pretty much understand them, sir.

OFFICER: Okay. So, it’s going to be at least four counts of possession for the purpose of trafficking –

DUNSTAN: Yes, sir.

OFFICER: ...on four different drugs.

DUNSTAN: Yes, sir.

OFFICER: Cocaine, marijuana, ah, mushrooms, which is psilocybin and ah, heroin is the other one

DUNSTAN: (makes facial gesture).

OFFICER: You – you didn’t know anything about heroin in your house?

DUNSTAN: (no verbal comment).

OFFICER: No? There’s a good amount of heroin. No?

DUNSTAN: That’s impossible, I swear to god on my kid’s life.

OFFICER: Well, I think it’s heroin, I haven’t had it analyzed by the way we get it analyzed yet.

DUNSTAN: I don’t know what to tell ya.

OFFICER: Okay. And failing to comply with your recognizance–

DUNSTAN: Yes, sir.

[11] The Crown relies on the fact that Mr. Dunstan denied the presence of heroin in the house as evidence that he was aware of what drugs were being kept in his home.

Applicable Legal Principles

[12] Statements given by an accused to a person in authority are not admissible in evidence unless the Crown proves beyond a reasonable doubt that the statements were made voluntarily.

[13] The leading case in this area is the Supreme Court of Canada’s decision in R. v. Oickle, 2000 SCC 38, [2000] 2 SCR 3. The confession rule is a long-standing common law principle. The underlining rationale is that a confession should not be received in evidence if it is made under circumstances that raise a reasonable doubt about its voluntariness. This is reflected in the R. v. Oickle decision where Justice Iacobucci states,

Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, this court’s jurisprudence has consistently protected the accused from having involuntarily confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.

[14] In the Oickle decision the Supreme Court makes it clear that a court must consider all of the circumstances surrounding the giving of the statement in a contextual fashion. This is reflected in the comments of Justice Iacobucci when he states,

Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an “inducement” as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above.

[15] The factors a court will take into account in considering voluntariness include threats or promises, oppression, the requirement for an operating mind and police trickery.

[16] In the case before me there is no evidence that would justify a conclusion that the statement was taken in an oppressive manner. The interview itself took place over a period of approximately 40 minutes after Mr. Dunstan’s arrest. The video shows both Detective Torres and Mr. Dunstan seated at an interview table talking to each other in a reasonable tone of voice. Detective Torres appeared to be respectful and civil during the interview.

[17] Similarly, there is no evidence of police “trickery” along the lines described by the court in Oickle. In the Oickle case it is suggested that in order to be excluded on the grounds of police trickery the conduct would have to be of a nature that, “shocks the community”. There is no evidence of any such conduct before me.

Was Mr. Dunstan induced to make a statement by an inducement that it would assist him in his bail hearing?

[18] In the Oickle decision the Supreme Court noted that statements would be inadmissible if they resulted from fear of prejudice or hope of advantage. The classic, “hope of advantage” is the prospect of leniency and the court stated that an explicit offer by the police to procure a lenient treatment in return for confession is clearly a very strong inducement which will warrant exclusion in all but exceptional circumstances. The court noted that the most important consideration to look for in these types of cases is a quid pro quo offer by interrogators regardless of whether it comes in the form of a threat or a promise.

[19] The court recognized, however, that in the vast majority of cases police will have to convince a suspect that it is in his or her best interest to confess. An inducement becomes improper only when it, whether standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. The court refers and adopts the following passage from R. v. Rennie (1981), 74 C.R. App. R. 207 (C.A.) where it is stated,

Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases, the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.

[20] In the present case Detective Torres cloaked the rationale for his interview in the need to obtain information for Mr. Dunstan’s bail report. This is reflected in the opening comment of the interview as follows,

OFFICER: Just have a seat on the right there?

DUNSTAN: This one?

OFFICER: Right, please. Okay. Um, I’ve just got to go through a few things for your bail report.

[21] It is also clear from early on in the interview that Mr. Dunstan intended to exercise his right to remain silent. This is reflected in the following discussion which took place immediately following the start of the interview.

OFFICER: You’ve been arrested for the possession for the purpose of trafficking, several counts of that, at least four. Um, fail to comply. Ah, okay so we’re going to, so ah, you gave the address of 97 Mercer in the Town of Markham, is that where you’re living?

DUNSTAN: Ah, I’m just going to choose my right to remain silent.

OFFICER: And that’s fine, but I just need to know that for sure. The house that I went in to last week, you and I both know that’s your house. Your pictures are on the wall, your property, all your clothing is in that house. Okay? Your cars are in the drive, are in the garage. I mean I spoke to your mom, she said that’s where you live. I spoke to your ex-girlfriend, she said that’s where you live. Know what I’m saying?

DUNSTAN: I choose, I’m sorry I’m choosing the right to remain silent.

[22] In addition to demonstrating Mr. Dunstan’s intention to remain silent the above passage also indicates that from the beginning the intention of Detective Torres was to try and obtain incriminating statements from the defendant. This was a conclusion that Detective Torres had some difficulty accepting, at least initially, when he was cross examined.

[23] It is also clear that Detective Torres continued to use the need to obtain information for bail as a means to try and extract incriminating statements from Mr. Dunstan. This is reflected in the following exchanges which occurred early on during the interview,

OFFICER: Okay, so just for your bail hearing, so you live, you live on your own or with your mom? I need to know this for the bail report, so you can stay with your mom. That’s fine.

DUNSTAN: With my mom, yeah.

[24] Shortly thereafter the following exchange takes place,

OFFICER: What’s that type of place?

DUNSTAN: Industrial place. I’m just going to choose, I’m going to choose the right to remain silent.

OFFICER: Yeah, but I need this stuff for your bail report, you don’t need to tell me anything about what happened in your house or anything like that, but I need stuff about what happened, what you do for a living.

[25] Later the following exchange takes place,

OFFICER: 1990 Ellesmere. This is the stuff that court is going to want to know for your release if, if you get released.

DUNSTAN: Yes, sir.

[26] The importance of bail to Mr. Dunstan is reflected in the following exchange,

OFFICER: Three years. And you might have another job lined up?

DUNSTAN: Well my, I have a couple of buddies that do ah, in to like interlocking brick and landscaping so I can get a job no problem. If I can get bail I can get a job no problem. I’ve already talked to him about it.

[27] It also seems likely that the issue of bail is reflected in how Mr. Dunstan exercised his right to remain silent. As noted in the quotations above Mr. Dunstan apologizes for choosing his right to remain silent. At other points during the interview, Mr. Dunstan tells the officer that he means no disrespect to the officer by exercising this right. He is clearly going out of his way not to create any conflict with the officers during the interview.

[28] The statement of interest to the Crown was made within the first eight minutes of the interview. At that point the issue of Mr. Dunstan’s bail had been raised four times by Officer Torres, and commented on once by Mr. Dunstan. Furthermore, the comments made by Detective Torres suggested that the information was needed in connection with his request for bail and from Mr. Dunstan’s perspective he might legitimately be concerned about the effect his refusals to answer would have on his chances for bail. It is true that on numerous occasions during the questioning Mr. Dunstan exercised his right to remain silent. However, in exercising this right it would appear that Mr. Dunstan would have to consider what prejudice he was running by refusing to answer the questions.

[29] The Crown suggests that there was a clear delineation when Detective Torres started to question Mr. Dunstan about the charges he faced. The Crown also suggests that the utterance made by Mr. Dunstan about the fact there was no heroin in the house was spontaneous.

[30] While there is a change of topic that is apparent when Detective Torres starts to question Mr. Dunstan about the charges I do not necessarily agree that there is a clear delineation so that Mr. Dunstan would have understood this line of questioning was unrelated to his bail. The charge related to heroin might well have been considered by Mr. Dunstan to be one of the more serious charges which might have affected his ability to obtain bail. It is at least possible this was a motivation for Mr. Dunstan to try and deny the presence of heroin. It is interesting to note in this regard that Detective Torres questioned Mr. Dunstan on three occasions in a row about the presence of heroin before he made the comments which are of interest to the Crown.

[31] While it is not directly relevant to the passage in question I note that throughout the balance of the questioning Detective Torres made continuing reference to bail in a way that would lend some credence to the defence position that Mr. Dunstan thought that he was in a “negotiation” for bail. There is also evidence later on in the transcript of Detective Torres threatening to arrest Mr. Dunstan’s mother for trafficking if he wasn’t cooperative. This passage is set out below.

OFFICER: Um sorry Brett, I just have a question. I know you don’t want to talk about it, but I have a question that I need to make just to ensure nobody is involved in this. When we went into that house, and the last thing and I don’t believe it and I need you to tell me, does your mom have anything to do with living there? I know you’re there and I know your kid’s there. Your mom’s name is on the legal documents for that house. Guess what I’m saying is I don’t want to have to arrest your mom for possession for the purpose of trafficking if she’s the owner of that house. Is her name on the house? ‘Cause according to this, Gail Dunstan and Brett Dunstan, these are legal documents, this is the lawyer transaction, when you pay the lawyer to do the closing fees for that house, at 76 Red Ash, your mom’s name is on it as well. So, what that tells me is your mom’s owner. So, I know you don’t want to talk about it but I think you need to, I think you need to –

DUNSTAN: I choose my right to remain silent.

[32] Having reviewed all of the circumstances I have concluded that there was a significant inducement by Detective Torres to get Mr. Dunstan to make incriminating statements. The quid pro quo offered by Detective Torres was a better opportunity to obtain bail. This is not a case like the case referenced by the Crown, R. v. Choe, 2010 Carswell Ont 7094, where there was only a single mention of bail and no indication that the withholding of information would have any impact on the outcome of the bail hearing. On the contrary, Mr. Dunstan was told that the information was required to prepare a report relating to his bail application. He would properly understand that his refusal to answer questions might negatively affect his changes for bail. In addition, in Choe case there was a clear delineation prior to the comment made by the accused that the conversation was shifting to the subject of the alleged offences. I do not consider there was a clear delineation in this case.

Failure to caution

[33] It was acknowledged by Detective Torres that no caution was given to Mr. Dunstan at any point prior to or during the interview. The significance of a caution in the context of determining whether a statement is voluntary was highlighted in the Supreme Court of Canada decision in R. v. Singh 2007 SCC 48, [2007] 3 S.C.R. 405. The court stated in that decision,

Therefore, the notion of voluntariness is broad-based and has long included the common law principle that a person is not obliged to give information to the police or to answer questions. This component of the voluntariness rule is reflected in the usual police caution given to a suspect and the importance attached (even before the advent of the Charter) to the presence of the caution as a factor in determining the voluntariness of a statement made by a person under arrest or detention....a common form of the police caution given to a person who has been charged with an offence is the following:

You are charged with … do you wish to say anything in answer to this charge? You are not obliged to say anything, but whatever you do say may be given in evidence.

Therefore, the police caution, in plain language, informs the suspect of his right to remain silent. Its importance as a factor on the question of voluntariness was noted by this court as early as 1949 in Boudreau:

The fundamental question is whether a confession of an accused offered in evidence is voluntary. The mere fact that a warning was given is not necessarily decisive in favour of admissibility, but on the hand, the absence of a warning should not bind the hands of the court so as to compel it to rule out a statement. All the surrounding circumstances must be investigated and, if upon the review the court is not satisfied of the voluntary nature of the admission, the statement will be rejected. Accordingly, the presence or absence of a warning will be a factor and in many cases, an important one.

[34] The court also notes in Singh that after detention State authorities are in control of the person detained who cannot simply walk away and who is therefore in a more vulnerable position. The importance of reaffirming the individual’s right to choose whether to speak to the authorities is, therefore, more significant where the individual is in custody, which is the case here.

[35] The Crown properly points out the evidence is clear that Mr. Dunstan understood his right to remain silent. He asserts this right on numerous occasions during the interview. However, there is no evidence from which one could draw a firm conclusion that he understood that his evidence could be used against him at his criminal trial.

[36] The defence has also suggested that Mr. Dunstan was not given his Section 10(b) rights at the time of being charged. However, this is directly contrary to the evidence of Detective Torres. I accept the evidence of Detective Torres in this regard. If one accepts the defence position that Detective Torres improperly recorded in his notes that the Section 10(b) advice was given, it simply does not make any sense that he would not have also suggested that a caution was given.

[37] The absence of a caution is of concern. Initially in his evidence in chief Detective Torres testified that he did not caution Mr. Dunstan before the interview because he assumed he understood his rights when he read them in the booking area. This, of course, would not be adequate to explain the omission given that the document read by Mr. Dunstan did not include the caution.

[38] On cross examination he also suggested that he assumed Mr. Dunstan understood his rights. However, there is no evidence during the interview or otherwise which would confirm Detective Torres’ assumption on this point.

[39] The defence submits that it was a deliberate decision by Detective Torres not to provide the caution to Mr. Dunstan so as to try and make it easier to obtain incriminating statements from Mr. Dunstan. I do not believe the evidence would support such a conclusion. If Detective Torres had such an intention it would have been easy for him to try and cover up the omission. Detective Torres was quite candid in his evidence about the fact that the caution was not given. Nevertheless, the absence of a caution is a serious issue in a case like this. The reason for the caution is to ensure that a person being questioned is aware of their rights so as to ensure that a statement made by them is voluntary. The advice that a statement given by the person may be used in evidence against them is a critical piece of information for the person to have. There is no clear evidence that Mr. Dunstan understood that the evidence could be introduced at his criminal trial as opposed to the bail hearing, which was the stated purpose for the inquiry.

Conclusion

[40] Taking into account the significance of the inducement and the failure to provide a caution, and considering those issues in the context of all of the circumstances of the statement I am left with a reasonable doubt with respect to the voluntariness of the statement. I therefore conclude that the statement is not admissible at the trial of this action.

Justice M. McKelvey

Released: Orally in Court