SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 13-10000598-0000

DATE: 2013-10-16

RE: R. v. ITHEMAR BROWN, ABEDNEGO WYNN, NATHAN ELVIE
and TAMARA BROWN

BEFORE: Justice Spies

COUNSEL:
Danielle Carbonneau, for the Crown

Taro Inoue, for the Defendant, Ithemar Brown

Marco Sciarra, for the Defendant, Abednego Wynn

Hans Cedro, for Defendant, Nathan Elvie

Kweku Ackaah-Boafo, for the Defendant, Tamara Brown

HEARD: October 2, 2013

ruling on crown’s application re statement of nathan elvie

Overview and Issues

[1] The Crown brought an application for a ruling that she be permitted to refer to a written statement Nathan Elvie provided to police, in cross-examination, if Mr. Elvie elects to testify. Mr. Cedro, counsel for Mr. Elvie, opposed the application. A voir dire was held to determine voluntariness. No s. 10(a) and/or 10(b) Charter applications were filed on behalf of Mr. Elvie. On October 8, 2013, I advised counsel that the Crown had not persuaded me that Mr. Elvie’s statement was given voluntarily and that the application was dismissed with reasons to follow. These are those reasons.

[2] Mr. Elvie was arrested for armed robbery on September 8, 2011 by officers from Peel Region in Brampton. There is no issue with respect to Mr. Elvie’s arrest. He was then transported to 52 Division in Toronto, where Detective Rand and D.C. Matthews continued their investigation. They were both with the Toronto Hold Up Squad at the time. Ms. Carbonneau called these two officers who were involved in obtaining a written statement from Mr. Elvie and Mr. Cedro called Mr. Elvie on the voir dire.

[3] After hearing the evidence, Mr. Cedro advised that although he relied on all of the circumstances that Mr. Elvie testified to before he wrote the statement, his primary objection was that the statement had been given in response to an inducement by the officers. Mr. Elvie had testified that he had no recollection of being cautioned that he had no obligation to provide a statement although he said it was possible that the officers said this. Mr. Cedro did not argue otherwise and I accepted the evidence of the officers on this point. There was no other issue as to whether or not Mr. Elvie was properly given his rights to counsel and cautioned. Furthermore, no issue was raised with respect to the conditions that Mr. Elvie was exposed to while he was in custody nor was it asserted that he did not have an operating mind. There was a factual issue as to whether or not Mr. Elvie spoke with his lawyer of choice; Mr. Stephen Bernstein, before or after he provided the written statement. As he sought no Charter relief, this factual dispute was only relevant to the issue of voluntariness.

[4] The evidence of the officers, which was largely consistent, diverged on many significant points with the evidence of Mr. Elvie. Since the officers interacted with Mr. Elvie without using video or audio equipment to record their interactions, the resolution of this application depended upon my assessment of the credibility of these witnesses, bearing in mind that the onus is on the Crown to prove beyond a reasonable doubt that this statement was given by Mr. Elvie voluntarily.

The Evidence

[5] No issues were raised with regard to the period while Mr. Elvie was held in a cell at 52 Division. One or both of the officers brought Mr. Elvie to the Criminal Investigation Bureau (“CIB”) at 52 Division. At that time the officers knew he had not yet spoken to a lawyer even though he had told the arresting officers that he wanted to speak to Mr. Bernstein and that he had his telephone number. Both officers were in plainclothes. Detective Rand was not armed. D.C. Matthews was but his firearm was hidden.

[6] Mr. Elvie was left in the interview room in the CIB at 11:58 a.m. The interview room in the CIB did not have video equipment. There was a room on the same floor called the DVD room that did, which was very close by. D.C. Matthews said it was not common practice at this station to bring a video camera into the interview room. He said that in some stations there is a camera that can be turned on in the interview room but that was not the case here.

[7] According to both officers, they were always both present in the CIB when they were with Mr. Elvie. Detective Rand testified that at 12:40 pm he and D.C. Matthews entered the interview room and that he took verbatim notes of the exchange. During this exchange Detective Rand testified that he introduced himself and D.C. Matthews, told Mr. Elvie what the charges were, that he cautioned him and Mr. Elvie asked to speak to Mr. Bernstein.

[8] The officers testified that it was D.C. Matthews who arranged for Mr. Elvie to speak to his lawyer. D.C. Matthews said that he made the first call at 12:46 p.m. but that he did not receive an answer and left a message. According to D.C. Matthews, Mr. Bernstein called back at 1:06 p.m. and at that time he told Mr. Bernstein what the allegations were. He then brought Mr. Elvie to a separate room where he had a conversation with Mr. Bernstein. D.C. Matthews did not say how long Mr. Elvie was in the phone room. This evidence was at odds with the evidence of Detective Rand who testified in chief that a call was placed to Mr. Bernstein at 12:43 p.m. and that at 12:46 p.m. Mr. Elvie was speaking to his lawyer, although in cross-examination he said this occurred at 1:06 p.m.

[9] In any event, according to the officers, it was at 1:25 p.m., after Mr. Elvie spoke to Mr. Bernstein, that they both reentered the interview room and Detective Rand took the role of lead investigator. Both officers were firm that Mr. Elvie spoke to counsel before giving the statement. According to Detective Rand he confirmed with Mr. Elvie that he had spoken to his lawyer. When he told Mr. Elvie about the nature of the charges and asked if he remembered the date, Mr. Elvie uttered the statement “I remember Caribana but I didn’t do a robbery”. Detective Rand testified that the pre-interview parts of his conversations with defendants are normally neutral and that he stopped Mr. Elvie when he made the utterance that he didn’t do a robbery. The Crown did not seek to rely on this utterance.

[10] According to the officers, at this point Detective Rand asked Mr. Elvie if he wanted to give an explanation and whether he was prepared to go on video and Mr. Elvie declined. He then told Mr. Elvie that they had a YouTube video of him with friends bragging about the robbery. He showed him a bulletin they had prepared with copies of still photographs from the surveillance tape from the hotel’s security cameras. No bulletin was introduced into evidence. He told Mr. Elvie that they had a strong case. Detective Rand then advised Mr. Elvie that he could also do an audio statement but Mr. Elvie refused that as well. According to Detective Rand, he then told Mr. Elvie that he would get him a pen and paper and that he said “Yeah”. He and D.C. Matthews then left him in the interview room. Detective Rand testified that at 1:57 p.m. Mr. Elvie knocked on the door and handed the written statement and pen to him and that he did not say anything. According to the officers they were always together when they saw Mr. Elvie.

[11] According to Mr. Elvie, he saw the officers both together and separately while he was in the interview room. He believes that he saw Detective Rand first and then D.C. Matthews. At first the officers asked him if he was downtown during Caribana on a particular night. When he said that he was downtown, they asked him what he did downtown. He was also asked if he knew some of the alleged persons involved and he acknowledged that he did know some of them. According to Mr. Elvie, the officers showed him actual still photographs from the hotel where the alleged incident happened and stills from a YouTube video. According to Mr. Elvie, some of what was in the statement he wrote was told orally to the officers before he made the statement. In cross-examination he testified that after telling the officers he was downtown during Caribana he told them that he was with his girlfriend and that he bumped into people he knew and that he and his girlfriend followed that group to a hotel for a party. He was not sure of the name or location of the hotel.

[12] According to Mr. Elvie at one point D.C. Matthews came into the interview room by himself and banged on the table and kicked the door. D.C. Matthews explained to Mr. Elvie that he wanted his co-workers to think that he was getting information from him. D.C. Matthews denied this. Mr. Elvie made no complaints about Detective Rand save that he leaned over the table and got close to his face and yelled at him in a firm tone. This was not put to Detective Rand in cross-examination.

[13] Mr. Elvie was equally firm that he did not have an opportunity to speak to his lawyer until after he made the written statement. He confirmed that he declined to give a video statement but had no recall about being asked to give an audio statement. Mr. Elvie testified that he asked why he should write a statement; he believes it was D.C. Matthews who answered. He did not think Detective Rand was in the room at the time. Mr. Elvie asked D.C. Matthews “Are you guys going to let me go?” He admitted that D.C. Matthews did not say “yes” but testified that he did say that Mr. Elvie would be better off or in a better position if he wrote the statement; something along the lines that “we’ll see where we stand – write the statement”. Based on the way D.C. Matthews made the statement and the fact Mr. Elvie had just asked him if he would be released, he believed that he would be released if he gave a statement.

[14] Mr. Elvie testified that once he finished writing the statement he thought he should speak to his lawyer first before he gave it to the officers. He had the paper folded in his hand and Mr. Elvie alleges that he said that he’d like to hold it until he spoke to his lawyer. D.C. Matthews grabbed the paper out of his hand and pulled it from his grasp. Once D.C. Matthews started grabbing the paper there was no point to resist. D.C. Matthews denied taking the paper by force. He was not asked if he had given an inducement to Mr. Elvie; this had been put to Detective Rand in cross-examination. D.C. Matthews did admit that while Detective Rand was getting the pen and paper he was alone with Mr. Elvie for one to two minutes while the door to the interview room was open and that he asked him certain personal questions for the show cause hearing.

[15] Detective Rand denied providing any inducement to Mr. Elvie to provide a statement or telling Mr. Elvie that if he provided an explanation that he would be let go. Mr. Elvie could not have been let go from the station as, because of the nature of the charges, it was an automatic reverse onus.

[16] Once Mr. Elvie spoke to Mr. Bernstein he was advised to be “silent” and he told the officers that he was going to hold his silence and asked to go back to his cell. He was taken back to his cell without any further questioning.

[17] Mr. Elvie did not complain to any of the officers he saw afterwards about what had happened with respect to the statement.

[18] Detective Rand agreed it is best practice to record interactions with defendants and admitted that he did not do so this time. D.C. Matthews admitted that it was always best to get a video statement but he said it was not practicable or best practice to put a video camera in the face of an accused from the perspective of police. His explanation was that sometimes confidential information could come out and then the person might be treated as a confidential informant. This information, however, would be on video and there would then be issues with redacting it in future. He said it was important to build a rapport and it was difficult to have a personal interaction with an accused with the camera in his face.

Analysis

[19] Counsel were in agreement with respect to the applicable law that I must consider on this application. As the Supreme Court of Canada held in R. v. Oickle,[^1] to be found to be voluntary, the Crown must establish beyond a reasonable doubt that the statement was not the result of a threat (fear of prejudice) or a promise (a hope of advantage) held out by the officers or as a result of circumstances of oppression or other police trickery. As already stated, the issue in this case was whether or not the written statement had been provided as a result of an inducement; a hope of advantage.

[20] A court should not focus on any particular aspect of the police conduct in isolation. Rather, factors going to voluntariness may work in combination. Conduct by persons in authority becomes improper when “inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the suspect has been overborne”.[^2] (emphasis added)

[21] The classic “hope of advantage” is the prospect of leniency before the courts. It is improper for a person in authority to suggest he will take steps to procure a reduced charge or sentence if the suspect confesses. An explicit offer by the police to procure lenient treatment in return for a confession is a very strong inducement and will warrant exclusion in all but exceptional circumstances.[^3]

[22] Courts should be particularly focused on police conduct suggesting a direct exchange of a benefit if an admission is made. As stated in Oickle, “the most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.”[^4]

[23] The Crown submits that Mr. Elvie gave this statement to the police voluntarily and willingly and that there were no inducements, promises or pressure from the officers for him to provide such a statement. She argued that the officers were credible and that Mr. Elvie was not. She submitted that his memory was very poor and that he was unable to recall many details and in particular that he was not able to recall specifically what was said in terms of the alleged inducement. She pointed out that aspects of his evidence had not been put specifically to the officers. She also argued that as his evidence continued he became more certain in cross-examination about details he had not been sure about in his evidence in chief.

[24] I do not accept these submissions. Although I agree that the officers presented as credible witnesses, in my view so did Mr. Elvie. It is natural that he would not be able to recall all the details of these events some two years ago. He did not have the benefit of notes or other computer records to assist him in recalling details like the officers did. What impressed me most was that he did not attempt to exaggerate or overstate any of his evidence where he could have. For example, although he gave evidence about the behaviour of D.C. Matthews which he called aggressive, which I’ve already referred to, he did not suggest that he was in fact intimidated or that this behaviour had any impact on his decision to begin writing a statement. He also readily admitted that D.C. Matthews did not expressly say “yes” in response to his question as to whether he would be released if he gave a written statement; admitting that it was more of a hint.

[25] Mr. Elvie’s evidence is also consistent with the fact that the original statement which was introduced into evidence has clearly previously been folded into one quarter the size of the original. I do not accept Ms. Carbonneau’s submission that there would have been some sort of “indent” or mark on the paper if D.C. Matthews grabbed the paper as alleged. Nor would it have necessarily torn if it had been folded and Mr. Elvie did not resist once D.C. Matthews used force to pull it from his hands.

[26] I find that I have no reason to doubt the evidence Mr. Elvie gave. As I also found the officers credible I am unable to determine exactly what happened during their interactions with Mr. Elvie. I am left with a reasonable doubt as to whether or not D.C. Matthews made the statement alleged by Mr. Elvie. The question then is whether or not such a statement amounts to an inducement.

[27] In this regard, I consider it significant that Mr. Elvie may have given the statement before he obtained legal advice. Again, I am not able to determine whether or not he did as both his evidence and the evidence of the officers seems credible on this point. I do not accept Ms. Carbonneau’s position that Mr. Elvie’s evidence does not make any sense. Quite frankly his evidence makes more sense. There is no dispute that he refused to give a video or audio statement. In those circumstances if he were relying on legal advice to remain silent, one would expect that he would not agree to write a statement either. The fact that he did so and then had second thoughts makes much more sense in all of the circumstances.

[28] Accordingly I find that Mr. Elvie may have written the statement without having first received legal advice after D.C. Matthews made the statement that he alleges in response to his question asking if he would be released. Although Mr. Elvie did not suggest an express offer was made, on his evidence he wrote the statement in response to a suggestion it would put him in a better position and that he believed it might lead to his release; in other words a hope of advantage.

[29] Even if I were not satisfied that what D.C. Matthews said was an inducement, and I concluded that Mr. Elvie wrote the statement initially voluntarily, that does not end the matter. He testified that he had second thoughts, wanted to speak to his lawyer and told D.C. Matthews this. That evidence raises a reasonable doubt. Obviously if this occurred, then the statement was not given to police voluntarily but rather was removed from Mr. Elvie’s hands by force without his consent.

[30] I considered the fact that Mr. Elvie may not really have considered whatever D.C. Matthews said as an inducement given that on his evidence he did change his mind about handing in the statement. Even if that is the case however, since I have a reasonable doubt as to whether or not he did change his mind and object to giving D.C. Matthews the statement, the result is the same as the statement was not given voluntarily.

[31] It is not necessary for me to determine whether or not the officers acted in an aggressive manner as alleged by Mr. Elvie as he did not rely on this alleged conduct in deciding to write a statement initially. However, this application could easily have been avoided if the officers had recorded all of their interactions with Mr. Elvie in the interview room. I do not accept their explanations for why they did not do so. In my view, the officers should not have engaged in the interaction they say they did with Mr. Elvie without recording it either by video or audio, particularly as on the evidence of Detective Rand they clearly intended to do more than simply inquire if Mr. Elvie was prepared to give a video statement. On his evidence Detective Rand brought with him either a bulletin with photos or on Mr. Elvie’s evidence actual still photographs from the surveillance video and a YouTube video. Detective Rand admitted referring to the YouTube video and telling Mr. Elvie that they had a strong case. Regardless of what was shown to him, clearly Detective Rand intended to try to persuade Mr. Elvie to give a statement when he brought these materials in with him. In those circumstances it would be reasonable to expect Mr. Elvie to make some response that related to the allegations which is of course what happened. Furthermore if an officer is intending to try to persuade someone to make a statement beyond simply asking if they are prepared to do so, common sense would dictate that that should be recorded. That apparently is now what is happening in other stations and in my view where a defendant is in an interview room where it is not possible to record, the officer should at least make an audio recording which would reduce these types of credibility disputes.

[32] For these reasons the Crown’s application was dismissed.

SPIES J.

Date: October 16, 2013

[^1]: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 48-67.
[^2]: Oickle, supra at para. 57 (emphasis added).
[^3]: Oickle, supra at para. 49.
[^4]: Oickle, supra at para. 57.