ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-1730
DATE: 20130816
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ELIZABETH GAYLE and FEDRICK GAYLE
Defendants
B. McGuire and C. Coughlin,
for the Crown
S. Bernstein and S. Pennypacker,
for the Defendant Fedrick Gayle
PRETRIAL Ruling # 1: ADMISSIBILITY OF Statement of
Fedrick Gayle
K. van Rensburg J.:
[1] Fedrick Gayle and Elizabeth Gayle were charged with first degree murder in the death of Tiffany Gayle. At issue in these pre-trial applications is the admissibility of the police interview of Fedrick Gayle that occurred on June 12, 2010, the day that Tiffany’s body was discovered in the family’s home, after Elizabeth’s daughter, Kashra Charles, had called 911.
[2] These are my reasons for decision, given orally on May 7, 2013, allowing the defence application to exclude the statement based on a breach of the accused’s s. 10(b) rights under the Charter. I am satisfied on a balance of probabilities that at the time he was interviewed by Officer Colley, Mr. Gayle was detained. As such he was entitled to his s. 10(b) rights to counsel. There is no issue that he was not given such rights at any time. Crown counsel acknowledged that if it were found that Mr. Gayle was detained then there was a breach and that the statement should be excluded under s. 24(2).
[3] A blended voir dire was held on this application and the application to admit Mr. Gayle’s statement as voluntary. As directed by the Court of Appeal in R. v. Voss, 1989 7167 (ON CA), [1989] O.J. No. 1124 the issues in the two applications and the evidence relevant to each must be considered separately having regard to the different onus and issues in each application.
[4] Five officers testified at the voir dire: Officer Anderson, who arrived at the scene and was with Mr. Gayle for about two hours before transporting him to the police station and placing him in an interview room at 11:28 am, Sergeant Gormley from CBI who also had five years of experience as a homicide officer and testified that he asked Mr. and Mrs. Gayle and Kashra to go to the station to be interviewed after the secondary crime scene had been identified in the garage and it was apparent they would have to leave the house, Officers Decordova and Carver-Smith from CBI, who were with Mr. and Mrs. Gayle for about an hour at the house, and finally Officer Colley, a homicide investigator who was tasked to interview Mr. Gayle. He gathered information, and like the other officers, attended a briefing which covered all that had been determined up to that point before commencing the interview at 4:58 p.m.
[5] All the officers testified that when they dealt with Mr. Gayle he was a “witness” or a “person of interest” and not a “suspect”. Mr. Gayle was never given a primary caution or his rights to counsel, apparently because of the unanimous view of the officers that he was not detained. In fact, he left the station after the interview concluded at 12:36 a.m. without being charged.
[6] A leading case for what constitutes a detention continues to be R. v. Moran, (1987), 1987 124 (ON CA), 36 C.C.C. (3d) 225 (C.A.), where at pp. 258-259 Martin J.A. set out a non-exhaustive list of factors as to whether a person who subsequently becomes an accused was detained at the time he or she was questioned at a police station by the police. The factors to be considered can be summarized as follows:
The precise language used by the police officer in requesting the person who subsequently became an accused to come to the police station, and whether the accused was given a choice;
Whether the accused was escorted to the police station by an officer;
Whether the accused left at the conclusion of the interview or was arrested;
The stage of the investigation, that is whether the questioning was part of a general investigation or whether the police had already decided a crime had been committed and that the accused was involved, and the questioning was conducted to obtain incriminating statements from the accused;
Whether the police had reasonable and probable grounds to believe the accused committed the crime being investigated;
The nature of the questions, whether of a general nature or confronting the accused with evidence pointing to guilt; and
The subjective belief of the accused as to whether he or she was detained, considering his or her personal circumstances, although this is not a decisive factor.
[7] I have considered the Moran factors. In this case it is not clear what precise language was used by Sgt. Gormley in requesting Mr. Gayle to come to the police station. Sgt. Gormley did not have a note of the words he used but said he “asked” the three to come to the station. Officer Anderson said he was told to bring Mr. Gayle to the station. All of the officers confirmed that, despite what might have been said, Mr. Gayle was not told he had a choice and it was not an option for anyone to remain in the home which was by that point a crime scene.
[8] Mr. Gayle was transported to the station in a police cruiser. This was unlike his friend Dave, who as a witness went to the station in his own vehicle. Mr. Gayle sat in the back of the cruiser which was locked, and he was transported separately from Mrs. Gayle, Kashra and Fedrick, Jr. At the station, he was taken directly to the interview room, where he was videotaped and observed from the moment of his arrival. He was in the interview room for about 12 hours except to use the washroom.
[9] I will say more about the conditions in the interview room later in this ruling. Continuing with the Moran factors, it is true that Mr. Gayle left at the conclusion of the interview and was not arrested. There may have been any number of reasons why he was not arrested at that time. The police, as they asserted, may have had no reasonable and probable grounds for his arrest. Officer Colley stated that, unless Mr. Gayle said something to implicate himself there was no question he was going to be released at the conclusion of the interview. The fact that he was not arrested and left after the interview is of course not determinative, but only a factor to be considered.
[10] The next factor is the stage of the investigation when the interview took place. There is no question that this was an early stage in the investigation of what the police understood to be a homicide. It was known that Mr. and Mrs. Gayle were in the home when Tiffany died.
[11] Before he entered the interview room Officer Colley had attended a thorough briefing. He was the beneficiary of all of the information that had been collected at that point. He was aware of Tiffany’s injuries. He was aware of where she had been found, the blood spatter on the walls, that there was a pool of blood in the garage, that there were signs of a clean-up. He was aware that Tiffany had been under a punishment at the time, and that a blanket and pillow were found in the garage. He was aware that there were no signs of forced entry into the house.
[12] Officer Colley left the interview room several times during the interview. He acknowledged that he had received information from Detective Thompson who was in charge of the investigation respecting what was coming out of the interviews of Kashra Charles and Elizabeth Gayle that were taking place at the same time, as well as from the ongoing police investigation, and that he used such information in his interview of Mr. Gayle. He learned, for example, about discipline in the Gayle household, including detailed information about Tiffany’s punishment, and the fact that she had lost her bedroom, and that Kashra said that her father had left the house to pick her up. He knew that laundry had been done in the house. By around 6:00 p.m. Kashra’s information about where she had been had been independently confirmed.
[13] Officer Colley testified that if Mr. Gayle had implicated himself through something he said, he would have stopped the interview and cautioned him. He said that there was “no information that came from Mr. Gayle that changed his status in [his] mind” and that “had he provided incriminating evidence [he] would have stopped the interview and acted accordingly”. That is not however the full extent of what was required.
[14] In determining whether someone is a suspect, the question is whether when, objectively viewed, the information collected during an investigation tends to implicate that person in the crime. It is an objective test, not a subjective one, that is to be applied to the totality of the information, that is not based solely on what that person says. An objective test better cares for the public interest in imposing duties on interrogating officers when the coercive power of the state is brought to bear on an individual in the context of a custodial interrogation: R. v. Morrison, [2000] O.J. No. 5733 (S.C.), at para. 50.
[15] Mr. Gayle was not the only source of information for the police. The investigation was turning up evidence that was pointing to both Mr. and Mrs. Gayle during the time Mr. Gayle was in the interview room. It is a fair inference that this is why he was kept waiting so long. Officer Colley acknowledged it was so that he could be better prepared for the interview. As Sergeant Gormley noted, there is a continuum between a person being a witness, then a person of interest and then a suspect. He noted that “the categories can change rapidly” and are “dynamic and fluid”.
[16] As Trafford J. noted in Morrison at para. 50:
…An officer has a duty to consider the information obtained during the course of an investigation on a continuing basis and to determine its legal significance. These duties, if properly discharged, will give practical effect to the rights of individuals and the correlative duties of an officer. Moreover, the diligence, competence and open-mindedness of an investigator at the critical phases of an investigation ensure the ultimate reliability of the investigation…These principles merely require that an officer who is about to interview a person be diligent in determining the status of the interviewee so as to better care for the public interest in the recognition of the rights, if any, of such a person in the circumstances of the interview.
[17] While many of the questions put to Mr. Gayle were general in nature, as the interview progressed they became more pointed and he was challenged with apparent inconsistencies between what he said and what came out of the investigation including the interviews of Mrs. Gayle and Kashra. The overall tenor of the interview of Mr. Gayle was consistent with the questioning of a suspect and not a witness or person of interest. In my view, after reviewing the entire interview, the types of questions Mr. Gayle was asked were consistent with a police theory that he could have been involved in some aspect of the offence.
[18] Another factor mentioned in the Moran case is the subjective belief of the accused as to whether he was detained. In this regard the Crown placed emphasis on the fact that Mr. Gayle was told by Officer Colley that he could leave, and the exchange that followed which Crown counsel argued demonstrated that he remained there of his own accord. Furthermore, Mr. Gayle did not testify at the voir dire, so Crown counsel asserted that there was no direct evidence that he believed he was detained.
[19] By the time Officer Colley arrived, Mr. Gayle had been in the interview room for more than five hours, without being told what was going on except that he was there to be interviewed. The door was locked. He was not offered food or drink for several hours. He was not permitted to see his family members. He had to call out and bang on the door before being permitted to use the washroom. And importantly he had been told that Tiffany’s injuries were not self-inflicted and that the person responsible would be charged. These were the circumstances that prevailed when Officer Colley came in. No one before that point had told Mr. Gayle he was free to leave the interview room let alone the station.
[20] Although Officer Colley told Mr. Gayle that he could leave, this statement was immediately followed by the assertion that Mr. Gayle should stay to “help his family”. He was told he was free to leave and in the same breath that he would want to stay. It is not clear that he ever appreciated that he truly did not have to stay in the interview room, and could have left the police station. There were many things that Officer Colley said to Mr. Gayle that he did not follow through with, including that Mr. Gayle would be able to see his family, and that he could speak with a lawyer, after the DNA consent had been provided to him. When Mr. Gayle expressed the desire to see his family members, to take food to his son, to go to the washroom, it was made clear to him that whether or not he did so was up to the police. In these circumstances, even when Mr. Gayle was told he was free to leave, the surrounding circumstances from the time he was transported to the station and while in the interview room suggested the contrary.
[21] I agree with defence counsel that Mr. Gayle’s state of mind is obvious from watching the recording. Before Officer Colley entered the room, Mr. Gayle asked another officer, “Geezus. When will I get…”, and the officer responded, “Uh, there’ll be an officer coming to speak to you shortly”. Mr. Gayle stated to Officer Colley near the end of the interview:
…I understand your motive of asking the questions very well. But where I’m at I’m not even able-the only decision I can make is going to the bathroom and come back sit in this room with you…that’s the only decision I can make, right….
[22] In R. v. Nicholas [2004] O.J. No. 275 (C.A.) and R. v. Teske 2005 31847 (ON CA), [2005] O.J. No. 3759 (C.A.), cases where it was fatal that an accused did not testify at the voir dire, the objective facts were inconsistent with detention and without the accused’s own testimony as to how he perceived the situation, there was really no evidence to support a contention of psychological detention. As Justice Doherty noted at para. 55 in Teske, the mere fact that an individual is told he is at liberty to leave is not determinative on the issue of detention.
[23] As noted most recently in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 31:
This second form of psychological detention - where no legal compulsion exists has proven difficult to define consistently. The question is whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand. As held in Therens, this must be determined objectively, having regard to all the circumstances of the particular situation, including the conduct of the police...the focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops.
[24] I am satisfied in all the circumstances considered objectively, that Mr. Gayle was detained when interviewed by Officer Colley.
[25] Having found that Mr. Gayle was detained and therefore excluding the statement as part of the defence’s successful application, it is unnecessary to determine the issue of voluntariness. I note, however, that I would have had a reasonable doubt on that issue. Briefly, I would find that although the circumstances of the interview were not oppressive, and Mr. Gayle was not offered a quid pro quo that would override the voluntariness of what he said, the fact that he was detained at the time engaged his right to silence. Voluntariness encompasses respect for the right to silence, as noted by the Supreme Court of Canada in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 and R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310. In her opinion for the majority of the Court in Singh, Charron J. noted at para. 35:
Ten years later, this Court in Oickle made express reference to the analysis in R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151 and embraced this modern expansive view of the confessions rule which, significantly for our purposes, clearly includes the right of the detained person to make a meaningful choice whether or not to speak to state authorities.
[26] At para. 38 Charron J. stated, “The mere presence of a doubt as to the exercise of the detainee’s free will in making the statement will suffice to ground a remedy”. This was emphasized by McLachlin C.J. and Charron J. in the majority decision in Sinclair at paras. 58 and 62.
[27] Mr. Gayle was never given a primary caution. He was never specifically told that he had the right to remain silent – to not respond to the officer’s questions.
[28] The caution that was given by Officer Colley was confusing. It was an attempt at a secondary caution without giving Mr. Gayle the primary caution. The officer stated:
What I wanna also go through with you is a couple other things, okay. Because this is a police investigation, um, as to what happened to Tiffany, I want you to understand a few things here, all right. Um, you’re not being placed under arrest or anything like that this is not why I’m in here. This is to figure out, um, just get some background as to what was going on or, or what you think could’ve happened, but I do want you to understand this , okay, when I’m te-, speaking to you or any-, anybody is being spoken to in your family, you have to understand if at any time we’re speaking, anything that is said between you and I can be used as evidence, and what I mean by that is if we’re talking down and all of a sudden something comes out, I just want you to understand that what we say could be used as evidence in court, do you understand that?
[29] Mr. Gayle’s response was “yeah”. The officer was asked why he had not simply read the proper secondary caution from his notebook, and he said that by reading something formal “it puts up a guard”. He didn’t give the primary caution because Mr. Gayle hadn’t been charged and was not necessarily going to be charged, and he wasn’t in custody. What is significant is that Mr. Gayle was never told that he did not have to say anything. He was told that what he said could be used as evidence. I agree with defence counsel that there was nothing to underscore to Mr. Gayle that he could be in jeopardy if he were to speak to the officer.
[30] The absence of a caution is not determinative, however this aspect assumed particular importance in this case. The cautions that were given were confusing and potentially misleading. As Sergeant Gormley acknowledged in his evidence, a secondary caution makes little sense in the absence of a primary caution. This was underscored in Officer Carver-Smith’s evidence. When she had to explain the secondary caution to Kashra, she told her directly that she didn’t have to say anything. That is to be contrasted with what she told Mr. Gayle. While I do not doubt her assertion that she thought Mr. Gayle understood because he said he had heard her, it was also Officer Carver-Smith’s belief that Mr. Gayle had already been cautioned by another officer. The failure to caution Mr. Gayle, in all the circumstances, is inexplicable, even if certain officers believed at different times that he was only a person of interest and not a suspect. By the time he was brought back to the station and held in an interview room for several hours for the purpose of questioning, he ought to have received a proper caution.
[31] Of course, it may happen that a person fully understands his right to remain silent, even in the absence of a caution. I am unable to reach this conclusion having viewed the entire recording of the time that Mr. Gayle spent in the interview room.
[32] The violation of Mr. Gayle’s s. 7 rights is consistent in this case with a reasonable doubt as to the voluntariness of what he said to Officer Colley.
[33] The denial of Mr. Gayle’s rights to counsel and a proper caution in this case was deliberate. None of the officers testified that there had been an oversight. Rather they were adamant that when they dealt with Mr. Gayle he was at all times a witness or a person of interest and had not become a suspect. Even if he was only a person of interest when he was at the house, by the time he was questioned by Officer Colley, Mr. Gayle was a suspect and detained. He ought to have been properly cautioned and given his rights to counsel.
[34] I conclude my brief remarks with an observation from R. v. Grant, 2009 SCC 32 at para. 16:
Constitutional guarantees such as ss. 9 and 10 should be interpreted in a "generous rather than ... legalistic [way], aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection" (R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, at p. 344). Unduly narrow, technical approaches to Charter interpretation must be avoided, given their potential to "subvert the goal of ensuring that right holders enjoy the full benefit and protection of the Charter" (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 23).
[35] Accordingly, and for these reasons, the police interview of Fedrick Gayle is not admissible evidence at trial.
K. van Rensburg J.
Released: August 16, 2013
COURT FILE NO.: 12-1730
DATE: 20130816
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ELIZABETH GAYLE AND FEDRICK GAYLE
pre-trial Ruling #1: ADMISSIBILITY OF statement of fedrick gayle
K. van Rensburg J.
Released: August 16, 2013