NEWMARKET
COURT FILE NO.: 11-99099G
DATE: 20131219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Jennifer Pan
Defendant
Jennifer Halajian and Michelle Rumble, for the Crown
Paul M. Cooper and Holly F.A. Chapman, for the Defendant
HEARD: August 6, 7, 8, 16, 19 and 22, 2013
RULING ON ADMISSIBILITY OF STATEMENT OF JENNIFER PAN
RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
FUERST J.:
INTRODUCTION
[1] Jennifer Pan made a chilling “911” call on the evening of November 8, 2010. She reported that men armed with guns broke into her home, tied her up, and took her parents downstairs. She said that she then heard gunshots inside the house.
[2] When the police arrived at the home, they found Ms. Pan’s mother in the basement. She had been shot multiple times, and killed. Ms. Pan’s father was outside the house. He too had been shot, but was alive.
[3] Ms. Pan was inside the house, uninjured. She was found at the top of the stairs with her hands tied to the railing by a shoelace.
[4] Ms. Pan and her father were taken to hospital. She was examined there, and released.
[5] The police brought Ms. Pan to a local police station. Early on the morning of November 9, she gave a videotaped statement in which she said that she had no involvement in the murder.
[6] On November 11, the police again brought Ms. Pan to the station. She gave a second videotaped statement. She reiterated that she had no involvement in the murder.
[7] The police arranged for Ms. Pan to come to the station on November 22, this time by taxi. She gave a third videotaped statement. Initially, she repeated her assertion that she had no involvement in the murder. After some three hours, she said that she had hired men to come to the house, not to harm her parents, but to kill her. She said that she did not know what had gone wrong with that plan.
[8] After Ms. Pan said that she unlocked the front door of the house so that the men could gain entry, she was arrested for the murder of her mother and attempted murder of her father.
[9] Crown counsel seeks to introduce the November 22 statement. Defence counsel does not contest the admissibility of the November 9 and 11 statements on either voluntariness or Charter grounds, but does contest the admission of the November 22 statement. The defence submits that the Crown has not proved the statement voluntary beyond a reasonable doubt, and also contends that it was obtained in breach of section 10(b) of the Canadian Charter of Rights and Freedoms.
THE EVIDENCE
[10] The evidence on the voir dire consisted of viva voce testimony supplemented by transcripts of testimony given at the preliminary hearing.
The November 9 Statement
[11] After her release from hospital, Ms. Pan was brought to a police station in Markham. There she agreed to give the police a sworn videotaped “K.G.B.” witness statement, in connection with the investigation of the murder of her mother.
[12] Detective Sergeant Randy Slade testified that the police viewed Ms. Pan as the victim of a crime. She was brought to the station because there were no facilities to take a video-recorded statement at the hospital.
[13] Ms. Pan confirmed that she did not suffer from any physical or mental condition that would affect her ability to give a statement, and that she was not under the influence of drugs or alcohol.
[14] Ms. Pan gave an exculpatory statement, in which she said that three males entered the home where she lived with her parents. She told the officer that they wanted money. They tied her to a bannister, with her arms behind her back, then took her parents down to the basement where they were shot. After the men left the house, her father ran outside. She got out her cell phone and called “911”.
[15] The interview lasted about an hour and forty-five minutes.
[16] About 16 minutes into the interview, Detective Sergeant Slade touched Ms. Pan’s leg, as a sympathetic gesture. She did not react to this.
[17] About an hour and twelve minutes into the interview, the officer left the room for a period of time to speak to the lead investigators. Ms. Pan did not express any concern about being left alone in the room.
[18] At the conclusion of the interview, Ms. Pan said that there was nothing that she wanted to change or add, that she had told everything to the best of her ability, and that she was not suffering from any mental illness.
[19] Detective Sergeant Slade did not know how Ms. Pan got home from the station. He said that if she had no transportation, arrangements would be made for an officer, or a taxi paid for by the police, to take her home.
The November 11 Statement
[20] Detective Sergeant Slade testified that on November 10, one of the lead investigators, Detective Bill Courtice, asked him to re-interview Ms. Pan. Detective Sergeant Slade was to go over the events again, for information about the perpetrators and Ms. Pan’s history, in light of an interview of her boyfriend, Daniel Wong.
[21] Accordingly, on November 10 he asked Detective Constable Gladding to arrange for Ms. Pan to come to 5 District on the morning of November 11. He asked Detective Constable Gladding to do this because she was the victim liaison officer. He did not make transportation arrangements for Ms. Pan and did not know how she got to the station or how she got home after the interview.
[22] Detective Constable Gladding testified that after she contacted Ms. Pan to arrange to come to the station, Ms. Pan called her back and wanted to know if it had something to do with her first statement. Ms. Pan told the officer that she was getting anxious, but did not say that she was on medication or had any mental health issue.
[23] On November 11, Detective Constable Gladding and another officer picked up Ms. Pan and brought her to the station around 8:30 a.m.
[24] Detective Sergeant Slade conducted a videotaped interview of Ms. Pan, which Detective Constable Gladding monitored. Ms. Pan again gave a sworn “K.G.B.” witness statement, in connection with the investigation of the murder of her mother. At the outset, she confirmed that she understood it was her choice to give a statement or not, and that she did not suffer from any mental illness and was not under the influence of alcohol or drugs.
[25] The interview was four hours long.
[26] Ms. Pan gave a more detailed version of the account she provided on November 9. Detective Sergeant Slade asked her to demonstrate how she got her phone out of the waistband of her pants while her hands were bound and her upper arm was tied to the bannister. As she did this, he touched her upper arm to indicate the location of the shoelace. He said that he did not see a reaction to this on her part. Later, he touched her knee in a sympathetic gesture. He said that she did not appear to react to this either.
[27] Ms. Pan answered questions about her relationship with Daniel Wong. She said that her parents gave her an ultimatum to choose him or them, and that she chose to stay home with her family. She said that she lied to her parents about attending university, and that she lied to Mr. Wong about being raped and about receiving a bullet in the mail.
[28] When Detective Sergeant Slade told Ms. Pan that he was leaving the interview room to talk to the primary investigator, she said that she did not like to be by herself. He replied that he would leave the interview room door partly open.
[29] Unknown to him, Detective Constable Gladding came into the room while he was gone, and spoke with Ms. Pan. Ms. Pan expressed concern to Detective Constable Gladding that she could not answer all of Detective Sergeant Slade’s questions. Detective Constable Gladding reassured her that the police did not want her to make up things.
[30] Detective Sergeant Slade testified that Detective Courtice asked him to challenge Ms. Pan about lies she told in the past, and to do his best to find out if she was lying to the police. When he returned to the interview room, his questions of Ms. Pan became more pointed. He asked her, for example, how the men got into the house, and why they shot her parents but left her unharmed. Ms. Pan assured him that she had nothing to do with what happened. He said that the police were trying to add credibility to what she told them by talking to other people, but that it would be easy to find the flaws in what she said and turn the focus back to her. He left the room again, to update Detective Courtice.
[31] When Detective Sergeant Slade returned to the interview room, Ms. Pan said that he had really scared her. He responded that it was his job to ask tough questions. He said that the police would compare what she told them to the evidence they had and see how consistent it was, that they would do everything in their power to prove or disprove what she told them, that they would be speaking to her friends and relatives, and that they may ask her to come back again for points of clarification. He told her that she was not a suspect, she was a witness and a victim of a crime. He said that, “[R]ight now there’s no fingers being directed at anyone.”
[32] Ms. Pan assured Detective Sergeant Slade that she had not lied to him, and that she had told all she knew. She confirmed that she gave the statement voluntarily.
[33] Detective Constable Gladding drove Ms. Pan back to her residence after the interview ended. Ms. Pan expressed no concern to her about having been in the interview room alone with Detective Sergeant Slade.
[34] Detective Sergeant Slade testified that he did not caution Ms. Pan or give her her rights to counsel during the interview, because she was a victim. She was not a suspect or a person of interest. There was nothing to suggest her involvement in the murder at that time.
[35] After the statement concluded, he provided a briefing to the lead investigators. He told them that there were issues concerning Ms. Pan lying, issues with Mr. Wong, and issues about her telling Mr. Wong she had been raped, which needed to be explored. He testified that nonetheless, she was still considered a victim. She was not a suspect, meaning a person with respect to whom there is evidence to suggest culpability, or even a person of interest.
[36] Detective Constable Gladding testified that as a result of the November 11 statement, she thought that Ms. Pan may be involved in the murder, but she did not consider her a suspect. She did not convey her opinion to anyone, including the investigative team, nor did she mention it to Ms. Pan. It was just her opinion. She was not part of the investigative team and did not make decisions about the investigation.
[37] On November 16, 2010, Detective Constable Peter Cheung swore an affidavit to obtain production orders. He swore that police surveillance teams had been tasked to monitor the movements of Ms. Pan and to identify all her associates. He also swore that he had reasonable grounds to suspect that she played a role in the murder and attempted murder because of inconsistencies in her two statements and as between them and the statements of her father. He did not swear that he had any communications with Detective Sergeant Slade, Detective Constable Gladding, or Detective Goetz.
The November 22 Statement
[38] Detective Constable Gladding testified that on the morning of November 22, Detective Courtice asked her to contact Ms. Pan and have her come to 5 District that afternoon to provide a statement. That was when she learned that Ms. Pan would be interviewed again. She was not told then, and had not been told previously, that Ms. Pan was a person of interest or a suspect. She did not know what would happen when Ms. Pan came to the station.
[39] She telephoned Ms. Pan and told her that the police needed her to come back in to provide a statement. Ms. Pan indicated that she did not have transportation to the station. Detective Constable Gladding was working in Aurora that day. Detective Courtice decided that Ms. Pan would be picked up by cab. Detective Constable Gladding did not know why arrangements were not made for a police officer to pick up Ms. Pan. The transportation arrangement did not seem odd to her, although she had never before arranged a cab for a witness to come to the station for an interview. She was not told to arrange a ride home for Ms. Pan, nor did she think about it.
[40] Detective Constable Gladding arranged for a taxi to pick up Ms. Pan at her residence and bring her to the Markham station, a distance of less than 3 kilometres. She told Ms. Pan that a cab would pick her up and that the police would take care of the expense at the station.
[41] Detective Constable Gladding called the cab at 1:06 p.m. Ms. Pan called her at 2:43 p.m. and said that the cab had arrived. Ms. Pan asked Detective Constable Gladding to stay on the phone with her until she got to the station. Detective Constable Gladding testified at the preliminary hearing that while Ms. Pan was in the cab she said, for the first time, that she was nervous being alone with a male. They did not discuss whether Ms. Pan was nervous being alone with a male police officer, nor did Detective Constable Gladding convey Ms. Pan’s comment to Detective Courtice. On this voir dire, Detective Constable Gladding testified that Ms. Pan told her she did not like being alone, and was not specific that she did not like being alone with men. The officer did not tell Detective Goetz that Ms. Pan did not like to be alone.
[42] Detective Constable Gladding stayed on the phone with Ms. Pan until the taxi arrived at the station. Ms. Pan seemed nervous and anxious, but was making sense when she spoke. The officer told Ms. Pan to wait in the cab on arrival until somebody came to get her.
[43] Detective Constable Gladding made no promises, threats or inducements to Ms. Pan.
[44] Detective William Goetz was a polygraph examiner. He testified that he was told on November 15 that he was to interview Ms. Pan. The officers in charge of the investigation, Detective Courtice and Detective Constable Cooke, did not believe everything that she had told the police. There were inconsistencies in her statements, and as between her statements and those of her father.
[45] In preparation for the interview, Detective Goetz watched the videotapes of Ms. Pan’s two previous statements and also those of her father.
[46] He said that it was not his goal to get a confession from her. Rather, it was to find out the truth about what happened, meaning whether what she said was supported by the case facts. He went into the interview with the possibility that she was involved in the murder, and the possibility that she was not. No officer told him that she was a suspect, or a person of interest. Some of the homicide officers believed her earlier statements, while others did not and were concerned that she may have been involved in the murder. When he went in to interview her, he categorized her as a person of interest. He was concerned that she may be involved in the murder, but she was not a suspect because there was no evidence of her culpability. Had he seen a document that referred to her as a suspect, it would not have affected the way he conducted the interview of her.
[47] He said that Detective Constable Gladding notified him that Ms. Pan had arrived at the station. He waited for Detective Sergeant Slade to arrive to monitor the interview. Then at 2:38 p.m. he brought Ms. Pan from the public waiting area of the station, into an interview room. He was told that she had come to the station by cab. He did not look into whether a cab was booked to return her home. If a cab was needed, he would call one.
[48] At 2:39 p.m. he began a video and audio recorded interview of Ms. Pan. It lasted approximately four and a half hours.
[49] Ms. Pan confirmed at the outset that she knew she was at the station to discuss the events that occurred at her home. She cried as she did so, but she did not indicate that she was on medication or had a mental health issue. Detective Goetz warned her about the consequences of lying to the police, but she was not put under oath or affirmation. He testified that he was not taking a “K.G.B.” statement from her. He told her that if she had anything to do with the homicide, she could be charged with murder. He testified that he wanted her to be fully informed of the importance of telling the truth, and also of her jeopardy. He told her that she did not have to give a statement if she did not want to, that it was her choice whether to give a statement or not, and asked if she understood. She replied, “I do now.” He told her that she was not under arrest, was not being detained, and was free to leave or stop the proceedings at any time. He also told her that she could speak to a lawyer by telephone in private at any time, and that there were legal aid lawyers available to give free legal advice 24 hours a day. She confirmed that she understood, and said that she did not wish to speak to a lawyer. Detective Goetz said that he normally tells people of their right to counsel when he polygraphs, and he did it with Ms. Pan out of an abundance of caution. He also gave her the caution and the secondary caution. He testified that he did all of this because he wanted to make sure that she understood her rights.
[50] Early in the interview, another officer knocked on the door. Detective Goetz learned that because of problems with the video recording, they would need to move to another interview room. When he told Ms. Pan that he was going to leave the room to move his equipment, she said that she was not comfortable being on her own. He said that he would leave the door ajar.
[51] After they moved rooms, Ms. Pan sat pretty close to the wall. Detective Goetz sat about four feet away from her, beside a table on which he had a laptop computer. He testified that at the time he was 5’10” tall and weighed 250 pounds. Ms. Pan was 5’7” tall and weighed 110 to 125 pounds.
[52] Detective Goetz repeated to Ms. Pan some of the information and cautions he gave earlier. They then talked about her background, her relationship with Daniel Wong, and her relationship with her parents. He introduced the theme that family is important, because the case involved the death of a parent.
[53] Approximately one hour and fourteen minutes into the interview, Detective Goetz told Ms. Pan that the police had spoken to a lot of people, and began to ask her about the murder. He asked her to explain why the perpetrators shot her parents but did not shoot her. He asked her if it made sense that the perpetrators would leave a witness behind. He then took her back over the events as she described them in her first statement.
[54] Detective Goetz left the room after about one hour and forty-nine minutes, to ask the investigators if there was anything else they wanted covered. He testified that he knew from Ms. Pan’s earlier statements that she did not want to be left alone. He did not leave the room then or at any other time in order to increase her vulnerability.
[55] After Detective Goetz returned to the interview room, he moved closer to Ms. Pan, because he was going to shift from asking questions to making a point. He testified that he wanted to have direct contact with her. He did not move closer in order to intimidate her.
[56] At approximately one hour and fifty-eight minutes into the interview, he told Ms. Pan that he was an expert in “truth verification” and that his job was to determine whether witnesses told investigators the truth. He said that he was trained in statement analysis and knew from the language a person used when he or she was not being truthful. He testified that determining the truth is part of his day to day work as a polygraph examiner, and that he said these things to Ms. Pan to persuade her not to lie to him. He told her that he used body language and common sense. He also told her that he used a computer program, called “Event Probability Analysis”, which identified areas of deception in a statement. He told Ms. Pan that additionally, he looked at forensic evidence and DNA; interviews of people who knew the maker of the statement; satellite information that recorded, for example, movements within a house; information from people who called in to the police; information from co-accused; and information from profilers. He said that he knew she had not been truthful with the police, unlike her father, who had “a front row seat”. He told her that the police had done their homework and knew she was involved in the murder, and that he needed to know from her what really happened.
[57] Detective Goetz testified that there was no “Event Probability Analysis” computer program, nor did the police have satellite information, or DNA or fingerprint information, information from tipsters, information from any co-accused, or information from profilers. He did not say that the police had such information, or tie the investigative techniques he mentioned back to the particular case. He did not falsely represent the evidence in the case. In cross-examination, he testified that he became accusatorial in the hope of getting the truth from Ms. Pan, as her account did not fit the case facts and did not make sense.
[58] Detective Goetz suggested to Ms. Pan that she was a good person who had made a mistake that night, and she had to do the right thing “here today”. He said that nobody was surprised by what happened, because her family had taken her identity, she was backed into a corner, and what happened that night was “self-preservation”, which “overrules anything in life”. He said, “It’s okay. We understand.” He urged her to talk about what happened and “get it off your chest”, that “[we]’re gonna understand and we’re gonna get this pressure off ya”. He said, “I’m gonna make it easy on ya, Jen. All you have to do is tell me that you were involved, right?” and then added, “[Y]ou don’t need to live with this pain anymore. Let it out.” In cross-examination Detective Goetz testified that he was trying to convey that he understood Ms. Pan’s actions, but not that they were legally justified. He and she did not discuss the consequences of her actions and he did not minimize her culpability. He did not suggest that he would make it easier for her in that sense. He meant that it would be easier for her to provide a statement that simply required yes or no answers, rather than having to recite it all herself.
[59] During this portion of the interview, Detective Goetz moved his chair to within a foot or two of Ms. Pan.
[60] Ms. Pan responded to his comments by asking, more than once, “What happens to me?” Detective Goetz said that he didn’t know, that he needed to hear the details. He testified that what happened to her would be determined by what she said. He told her, “I’m gonna sit here as long as it takes for you to get this off your chest, okay?”, but he did not tell her that she was going to sit there for as long as it took. He did not block the door then, or at any point in the interview.
[61] Detective Goetz told Ms. Pan that he was her mother’s voice and that he was working for her mother. He continued to urge her to tell him what happened. He told her that he knew she had no choice, and that anybody in her situation would have done the exact same thing but done it a lot earlier.
[62] When Ms. Pan again asked what would happen to her, Detective Goetz said that he did not know, and asked what she would like to see happen. She said, “Justice for my mom”. Detective Goetz told her that he could not make any promises to her, but he could promise that he would listen and work together with her to get justice for her mother. He told her that they had to work together and could not be on opposite sides, that if there was to be justice for her mother “it has to be a partnership”. He told her that her mother needed to understand what happened, and that he wanted her to pretend that he was her mother and get it off her chest, then they would get justice for her mother. He said that if her mother were there, she would expect Ms. Pan to tell him what went wrong. He told her that he was her mother’s voice and that was who he worked for as a police officer. He suggested that he and Ms. Pan wanted the same thing.
[63] He testified that by “justice for mom”, he meant resolving the case. He never told Ms. Pan that it meant freedom for her.
[64] Ms. Pan again asked what would happen to her. Detective Goetz replied that the police knew what she did, but she had to be able to explain to him what happened, that he could not tell her what exactly was going to happen to her, that he preferred to deal with it one step at a time, and they were going to discuss it so that justice for her mom got done.
[65] Detective Goetz testified that he did not make any promises to Ms. Pan. He indicated to her that she had to tell him something in order for him to make a decision about what would happen.
[66] When Ms. Pan replied that she had told the police what she remembered, Detective Goetz said that she had not been straight-forward and that the police knew the perpetrators did not show up at her house at random, but rather came to shoot her parents. He suggested that she got the men to come to her house and that she needed to tell him how she made the plan. He said, “It’s okay, you can tell me. It’s okay.”
[67] Ms. Pan was sitting with her head down, and appeared emotional. After several minutes of silence, at approximately three hours and ten minutes into the interview, she told Detective Goetz that she had arranged for the men to come to the house to shoot her, not her parents. She said she did so because she did not want to live anymore.
[68] As she spoke, Detective Goetz asked her questions. He sat very close to her and rubbed her shoulders. He testified that he did this because she was upset and he wanted to console her. In cross-examination, he said that he did not turn his mind to the impact on her of that touching because of her culture, but he was cognizant of her gender and he did not do anything inappropriate. She did not complain about him touching her.
[69] In answer to his questions, Ms. Pan said that she got a telephone number for a guy through the roommate of a friend. She telephoned the guy, and he said that he would kill her for a fee. He texted her before anyone came to the house. She did not know what went wrong after the men arrived, because she was supposed to be the one killed.
[70] Detective Goetz told her that he was an expert in determining truth and half truths and that he knew what really happened was that she arranged for the men to come and kill her parents. Ms. Pan maintained that it was supposed to be her who was killed, but acknowledged that she made sure the front door was unlocked so that the men could get into the house. Detective Goetz told her that her account did not make sense, and continued to assert that she had arranged for the men to kill her parents. He testified that he did not believe it was true that she was the target that night.
[71] Several minutes later, there was a knock on the interview room door. Detective Goetz left the room. He testified that he would have continued to interview Ms. Pan, and still was prepared to let her leave the station if she wished, but Detective Courtice told him he had decided to arrest her. Up to that point, she controlled what she said and whether she stayed or left the station.
[72] Detective Goetz returned to the interview room and told Ms. Pan that he was arresting her for murder, attempted murder and conspiracy to commit murder, gave her her rights to counsel, cautioned her and gave her the secondary caution. She said that she wanted to call a lawyer. She said, “You said that you were at my side and now it’s” at which point Detective Goetz interrupted her, said that he knew what happened and he was on the side of truth, and that he needed to deal with her request to speak to a lawyer.
[73] Detective Goetz testified that Ms. Pan was coherent throughout the interview and disagreed with him at times. She made the sounds of crying, but he saw no tears. She was conversant except when he asked her about something she did not want to discuss and then she would query why they had to go there again, or retreat by putting her head down.
(Decision continues exactly as in the source through paragraphs [74]–[149], ending:)
[147] Crown counsel has proved Ms. Pan’s November 22 statement to Detective Goetz voluntary beyond a reasonable doubt.
[148] The defence has failed to establish a breach of section 10(b) of the Charter on a balance of probabilities.
[149] Accordingly, the statement is admissible.
Justice M.K. Fuerst
Released: December 19, 2013