Court File and Parties

COURT FILE NO.: CR-11-9099 DATE: 20140109

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DAVID MYLVAGANAM Respondent

Counsel: Jennifer Halajian and Michelle Rumble, for the Crown Peter Bawden, for the Respondent

HEARD: August 9, 12, 13, 14, 15, 2013

RULING ON ADMISSIBILITY OF STATEMENT

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] Emergency Response Unit (“ERU”) officers conducted a “high risk” take-down that resulted in the arrest of David Mylvaganam. He was charged with the murder of Bich Pan and attempted murder of Hann Pan.

[2] Following the arrest, a police officer interviewed Mr. Mylvaganam on videotape for seven hours.

[3] Crown counsel seeks a ruling that Mr. Mylvaganam’s statement is admissible. The Crown does not plan to introduce the statement as part of its case, but rather to use it in cross-examination should Mr. Mylvaganam testify at trial.

[4] The only admissibility concern raised on behalf of Mr. Mylvaganam is voluntariness.

The Evidence

(a) The Take-Down

[5] On the afternoon of April 14, 2011, members of the York Regional Police Emergency Response Unit went to a north Toronto mall to arrest Mr. Mylvaganam. The officers wore tactical uniforms labelled “POLICE” on the back and front. Each of them carried a pistol in a holster on the leg, and a rifle strapped across the chest.

[6] At 4:30 p.m., Mr. Mylvaganam was sitting in the front passenger seat of a BMW that was parked in the mall. A take-down was called over the police radio. Several ERU officers converged on the car, shouting commands as they did so.

[7] The police had information that Mr. Mylvaganam could be armed with a weapon, and wanted to ensure that innocent bystanders were not injured during his arrest.

[8] P.C. Matthew Houlieff was in a police vehicle that pulled up sideways in front of the BMW such that he was face to face with Mr. Mylvaganam. P.C. Houlieff lowered his window, pointed his pistol at Mr. Mylvaganam’s head or upper chest and yelled, “Police, don’t move.” Mr. Mylvaganam looked at him and dropped the cell phone he was holding. He raised both his hands in the air. P.C. Houlieff continued to point his pistol until other officers moved in and took Mr. Mylvaganam out of the car.

[9] P.C. Houlieff testified that Mr. Mylvaganam did not appear to be injured or ill, nor did he hear him complain of any injury or illness.

[10] P.C. Stephen McKenzie approached the rear of the BMW with his pistol drawn. As P.C. Weick tried to open the passenger door and demanded that Mr. Mylvaganam show his hands, P.C. McKenzie opened the driver’s door and leaned in with his pistol pointed at Mr. Mylvaganam’s chest area. He saw Mr. Mylvaganam manipulating something with his hands in the lower waist area. He said, “Don’t move or I’ll fucking kill you.” Mr. Mylvaganam raised his hands and a cell phone dropped out. P.C. McKenzie continued to point his pistol at Mr. Mylvaganam.

[11] Once Mr. Mylvaganam was on the ground, P.C. McKenzie put his left shin across Mr. Mylvaganam’s right arm and back and patted him down for weapons.

[12] P.C. McKenzie testified that Mr. Mylvaganam did not appear to be injured or ill, nor did he hear him complain of any injury or illness.

[13] P.C. Brad Weick approached the passenger side of the car from the rear. He told Mr. Mylvaganam that he was under arrest, and to get out of the car. P.C. Weick tried to open the front passenger door, but it appeared to be locked. He told Mr. Mylvaganam to open the door and show his hands. P.C. Weick tried without success to smash the passenger window with the muzzle of his rifle. Then Mr. Mylvaganam unlocked the door.

[14] P.C. Weick grabbed Mr. Mylvaganam’s right arm with both hands and pulled him out of the car. He used one arm as a bar to apply force to Mr. Mylvaganam’s arm and, in a controlled motion, brought him to the ground, chest down. He then kneeled beside Mr. Mylvaganam, holding Mr. Mylvaganam’s right arm behind his back. Mr. Mylvaganam would not give the police his left arm, which was under his chest.

[15] After another officer handcuffed Mr. Mylvaganam, P.C. Weick told him that he was under arrest for murder. The officers stood Mr. Mylvaganam up.

[16] P.C. Weick testified that Mr. Mylvaganam did not appear to be injured or ill, nor did he complain of any injury or illness. He agreed it was possible that Mr. Mylvaganam’s chin came in contact with the ground.

[17] Sergeant Aaron Busby went to the front passenger side of the BMW. He assisted as another officer removed Mr. Mylvaganam from the car and brought him to the ground, on his stomach. Mr. Mylvaganam was yelling, “What did I do. I didn’t do anything.” Sergeant Busby was on Mr. Mylvaganam’s right side. He tried to get Mr. Mylvaganam’s left arm out from under his chest, to ensure that he had no weapons and to handcuff him. At least one other ERU officer was trying to get control of Mr. Mylvaganam, but Mr. Mylvaganam was resisting efforts to get his hands behind his back.

[18] Sergeant Busby did not know if Mr. Mylvaganam had a weapon. For reasons of officer safety, he delivered one knee strike to Mr. Mylvaganam’s upper left arm. The degree of force used was a 5 or 6 on a scale of 10. Mr. Mylvaganam released his arm.

[19] Sergeant Busby told Mr. Mylvaganam that he was under arrest for murder.

[20] Sergeant Busby testified that Mr. Mylvaganam did not appear to be injured or ill, nor did he complain of any injury or illness.

[21] P.C. Michael Lang went to the rear of the BMW on the driver’s side. As he opened the rear driver’s side door, other officers removed Mr. Mylvaganam from the front passenger seat and put him on his stomach on the ground. His hands were underneath him. P.C. Lang yelled at Mr. Mylvaganam to give him his left hand. After another officer gave Mr. Mylvaganam a knee strike, his hands came free. P.C. Lang handcuffed him. He told Mr. Mylvaganam that he was under arrest for murder. Other officers stood Mr. Mylvaganam up.

[22] P.C. Lang testified that Mr. Mylvaganam did not appear to be injured or ill, nor did he complain of any injury or illness.

[23] P.C. Tad Smith approached the BMW as Mr. Mylvaganam was being taken to the ground. Mr. Mylvaganam’s legs were moving while he was on the ground, so P.C. Smith put his booted foot on Mr. Mylvaganam’s left leg so that it could not be lifted. He did not believe that he injured Mr. Mylvaganam.

[24] P.C. Smith testified that Mr. Mylvaganam did not appear to be injured or ill, nor did he complain of any injury or illness.

(b) Transport and Booking

[25] Detective David MacDonald, a member of the Homicide Unit, was at the mall with Detective Adam Stock. Once Mr. Mylvaganam was handcuffed, they approached him, walked him to their car, and put him in its rear seat. The entirety of their conversation with him was recorded on a small audio recorder.

[26] En route to the car, Detective MacDonald told Mr. Mylvaganam that he was under arrest for murder and attempted murder. Before he was given his rights to counsel and cautioned, Mr. Mylvaganam asked to call his lawyer. Detective MacDonald told him that he could speak to his lawyer in private at the station. Once Mr. Mylvaganam was in the car, Detective MacDonald reiterated the reason for his arrest, gave him his rights to counsel, and cautioned him. Mr. Mylvaganam reiterated that he wanted to speak to a particular lawyer. He asked the officer to loosen his handcuffs. Detective MacDonald did so. Detective MacDonald noticed that Mr. Mylvaganam had a little scrape on his chin.

[27] The officers drove Mr. Mylvaganam to the station, where he was booked and put in a cell. Detective MacDonald called the office of the lawyer Mr. Mylvaganam named. Mr. Mylvaganam spoke in private with counsel.

[28] Detective MacDonald testified that he saw no injury to Mr. Mylvaganam other than the scrape to the chin, and no signs of illness. Mr. Mylvaganam did not complain of any other injury or that he was sick. He did not mention that he was taking any medication.

[29] The booking of Mr. Mylvaganam was video and audio recorded, but the video recording was lost before trial and only the audio recording remains. The booking officer, Staff Sergeant Jeffrey Lambert, asked Mr. Mylvaganam if he suffered from any medical condition and if he was getting medication. His responses were not audible on the recording. Detective MacDonald could not recall the responses. Staff Sergeant Lambert had a note that Mr. Mylvaganam said he suffered from sickle cell anemia, but he had no note that Mr. Mylvaganam mentioned that he was taking medication. He testified that Mr. Mylvaganam did not have any medication with him, did not mention any other medical condition or show signs of illness or injury, and did not complain of injury.

[30] Staff Sergeant Lambert testified that the police do not keep over-the-counter medication at the station, or give it to prisoners. They do give prisoners medication that is prescribed by a physician and so labelled on a pill bottle.

(c) The Interview

[31] After Mr. Mylvaganam spoke to counsel, Detective MacDonald put him in an interview room. Staff Sergeant Lambert testified that he was not aware of anything abnormal about the temperature in the interview room.

[32] At 6:01 p.m. Detective Goetz began a video recorded interview of Mr. Mylvaganam. It continued until 1:04 a.m. At the outset, he confirmed that Mr. Mylvaganam was aware of the reason for his arrest, had been cautioned and understood the caution, and had spoken to a lawyer. He gave Mr. Mylvaganam the secondary caution. Mr. Mylvaganam said that he understood everything and that he was exercising his right to remain silent.

[33] Mr. Mylvaganam was provided with a hamburger, french fries and pop.

[34] Detective Goetz asked questions about Mr. Mylvaganam’s background and personal circumstances, to which Mr. Mylvaganam gave a mix of verbal and non-verbal responses. He occasionally reiterated that he was exercising his right to remain silent.

[35] About 40 minutes into the interview, after Detective Goetz asked, “What’s the worst part about bein’ here today”, Mr. Mylvaganam replied “I’m in pain”. Detective Goetz did not ask any follow-up questions to clarify the meaning of that response. He testified that he thought Mr. Mylvaganam was referring to emotional pain.

[36] Detective Goetz then turned to the topic of the murder of Mrs. Pan and attempted murder of Mr. Pan. He told Mr. Mylvaganam that Mr. Pan remembered the faces of the people who tried to kill him. He said that the couple’s daughter planned the shooting, and that she told the police what happened in the house. He said that the police knew Mr. Mylvaganam was in the house that night, that the police had the two best witnesses in the world, and that Mr. Mylvaganam’s arrest was not arbitrary. He suggested that Mr. Mylvaganam made a mistake and should do something about it.

[37] Mr. Mylvaganam responded by asking to use the washroom, and complained that he was cold. He was wearing jeans and a long-sleeved shirt over a tee-shirt. Detective Goetz testified that the temperature in the room was the same as elsewhere in the station, and that he did not find it cold.

[38] In cross-examination, Detective Goetz denied that he tried throughout the interview to convey that Mr. Mylvaganam’s situation was hopeless. He denied that there was a lot of exaggeration about the strengths of the case on his part. He said it was his information that Mr. Pan viewed Mr. Mylvaganam’s photograph with the police and put a “Maybe” next to it, and that while Ms. Pan did not tell the police everything, she provided some facts.

[39] Detective Goetz took Mr. Mylvaganam to the washroom. When they returned, he asked about Mr. Mylvaganam’s child and the mother of his child. Mr. Mylvaganam said that he was exercising his right to remain silent, but gave non-verbal responses to some questions and verbal answers to others. Detective Goetz showed pictures of the various co-accused and asked questions about Mr. Mylvaganam’s knowledge of them. Mr. Mylvaganam made a series of non-verbal responses. He asked for a blanket and said that he got anxiety attacks with no sleep. Detective Goetz replied that there were no blankets at the station, and carried on with his questions.

[40] Detective Goetz testified that he saw no signs of an anxiety attack. He said that there were no blankets at the station. He claimed that he looked in the CIB area but found nothing he could give Mr. Mylvaganam to make him warmer. He conceded that this was not in his notes. Staff Sergeant Lambert testified that the police do not supply blankets to a prisoner who complains that he or she is cold, nor can a prisoner have his or her jacket during an interview, for safety reasons.

[41] Detective Goetz told Mr. Mylvaganam that he was identified and that there was no question he was at the house that night. Mr. Mylvaganam replied that he did not do anything. Detective Goetz told him “That’s not gonna wash here”. He said the police knew that Mr. Mylvaganam’s phone called Ms. Pan’s phone that night, because they had all his phone records, and had spoken to everybody his phone called. Mr. Mylvaganam again responded, twice, that he was exercising his right to remain silent. Detective Goetz denied that he tried to suggest that Ms. Pan had identified Mr. Mylvaganam, although he did exaggerate about Mr. Pan’s statement to the police.

[42] Detective Goetz told Mr. Mylvaganam that the police had already proved that he was in the house, that he needed to tell the police his side of the story, that this was his chance to do so, and that he would not have that chance down the road. He asked Mr. Mylvaganam why he called Ms. Pan. Mr. Mylvaganam said that he did not call anyone, that the phone was given to him by another man, and that he lost it at a party some time before the Pan shootings. He answered numerous questions about those assertions.

[43] In the midst of that discussion, Mr. Mylvaganam said that he felt like vomiting, that he had “sickle cell”, and that he needed to take iron tablets but did not have any with him. Detective Goetz testified he had not been told about any medical condition affecting Mr. Mylvaganam. He took Mr. Mylvaganam to the washroom. On their return to the interview room, Detective Goetz urged him to eat the meal and drink the pop he had been given. Detective Goetz testified he did so because he thought it might assist Mr. Mylvaganam. Mr. Mylvaganam said that he could not eat “right now”. He asked for and was given some water. Detective Goetz testified that he did not report to Staff Sergeant Lambert that Mr. Mylvaganam was feeling ill, because he did not see anything that required medical attention.

[44] Detective Goetz continued to question Mr. Mylvaganam, about his lost phone and his relationships with the co-accused Carty and Crawford. Mr. Mylvaganam responded to the questions, both verbally and non-verbally. At one point he laughed at a comment the officer made. About ten minutes later, he said that he was exercising his right to remain silent, that he did not feel “too good right now”, and that he had already talked about a particular party that was the subject of the officer’s questions at that point. The officer then asked him questions about various individuals. Mr. Mylvaganam replied to the questions for about two minutes, then said that he was exercising his right to remain silent. Detective Goetz carried on with his line of inquiry. Mr. Mylvaganam continued to respond to questions for another eight minutes, until Detective Goetz asked about nicknames for Mr. Carty. Mr. Mylvaganam said that he exercised his right to remain silent, but answered the question and others that followed. He laughed at some of the officer’s comments. Then he said that he felt sick and cold in his body. He asked for iron tablets. Detective Goetz said there were none at the station and suggested that Mr. Mylvaganam’s sister could bring some the next day, to which Mr. Mylvaganam said “Yeah”. The interview continued.

[45] Moments later, Mr. Mylvaganam asked for Tylenols. Detective Goetz said that he would have to check if the police would give any medications, and carried on with his questions. He testified that he was 99 percent sure the station did not give Tylenol to prisoners. In cross-examination, he said that at some point he checked with Staff Sergeant Lambert about whether the police could give medication and was told there was no medication to give. He said that it did not occur to him at the time to ask an officer to call Mr. Mylvaganam’s sister to bring the iron pills immediately.

[46] Mr. Mylvaganam continued to respond, until the officer asked for the address of the mother of his child. Mr. Mylvaganam said that he wanted to be silent, then added that the police knew exactly what they were doing and told Detective Goetz that he was acting like “Doctor Phil”. He continued to answer questions for another two minutes, at which point, three hours and twenty-three minutes into the interview, he doubled over in his chair, asked to use the washroom, and said that he could not keep on doing this and felt sick. Detective Goetz responded that he was doing fine, but took him to the washroom. In cross-examination, Detective Goetz testified that he was not unresponsive to Mr. Mylvaganam, and was dealing with the situation as best he could.

[47] On their return to the interview room, Mr. Mylvaganam said that he felt “really sick”. Detective Goetz told him to try to keep “trippin’ along” and that he could take as many washroom breaks as he needed. Mr. Mylvaganam replied, “Yeah”. Detective Goetz testified that he did not think Mr. Mylvaganam’s condition prevented the interview from continuing, as Mr. Mylvaganam was still communicating. He said that a lot of people do not feel well during police interviews.

[48] Detective Goetz left the room for seven minutes. Mr. Mylvaganam appeared to rest on two chairs. When Detective Goetz returned, he told Mr. Mylvaganam, “Up and at ‘er”. Mr. Mylvaganam sat up. Detective Goetz testified that lots of people try to sleep in the interview room.

[49] Detective Goetz asked Mr. Mylvaganam how long he had known the co-accused Carty. Mr. Mylvaganam said that he exercised his right to be silent. Detective Goetz continued to ask questions. Mr. Mylvaganam said, “Can I exercise my right to be silent, no?” Detective Goetz replied, “You can, but is it gonna kill you to tell me why you call him Kimble”. Mr. Mylvaganam said that he had nothing to say, and that he was feeling nauseous. Detective Goetz told him to “hang with me here” and offered him a drink of water. Detective Goetz continued to ask questions about Mr. Carty’s nickname, and Mr. Mylvaganam laughed as he responded.

[50] Two minutes later, Mr. Mylvaganam asked Detective Goetz to move the garbage can closer. The officer did so. Mr. Mylvaganam complained that his leg was swollen and cracked. He lifted his pant leg. Detective Goetz agreed that at times when Mr. Mylvaganam walked he did so stiffly and appeared to favour one leg, but he saw no injury to the leg, and nothing else that needed medical attention.

[51] Mr. Mylvaganam appeared to spit into the garbage can. Detective Goetz gave him a tissue and some water, and said, “Let’s get through this, okay?”. Detective Goetz began to lay out the sequence of events that led to the shootings. As he did so, Mr. Mylvaganam retched and spat into the garbage can. He said that his stomach was empty, he felt sick and wanted to vomit, and that he had not taken his iron pills that morning. Detective Goetz replied that he believed him, but that he was asked earlier and said he was not on any medication. Mr. Mylvaganam replied that the iron pills were not really medicine. Detective Goetz told him to listen and continued to outline the events, including Mr. Mylvaganam’s participation in the murder. Mr. Mylvaganam occasionally coughed or spat into the garbage can. When Detective Goetz said that Mr. Mylvaganam made the phone call that set events in motion, Mr. Mylvaganam replied that he did not call anyone that night as he had lost his phone. Detective Goetz responded that Ms. Pan told them what happened, that the phone was “stuck to you like glue”, and that he “better start thinkin’ here”. When Mr. Mylvaganam insisted that he lost his phone, Detective Goetz said, “Nice try, but it never happened”. The officer said that Ms. Pan told the police what happened and there were people in the house who had identified Mr. Mylvaganam from pictures. Detective Goetz said the police knew he did the shooting, which prompted Mr. Mylvaganam to laugh and the officer to say, “I don’t think I’d be laughing right now if I were you.” In cross-examination, Detective Goetz acknowledged that he exaggerated the evidence gathered by the police, but said that the claim of losing the phone was totally contrary to the evidence.

[52] Mr. Mylvaganam said that he exercised his right to remain silent. Detective Goetz told him that was fine, but the reality was he needed to do some explaining. As the officer continued to speak about Ms. Pan telling them who was in the house and that Mr. Pan would never forget him, Mr. Mylvaganam occasionally spat into the garbage can.

[53] Mr. Mylvaganam again said that he exercised his right to remain silent. Detective Goetz continued to urge him to cooperate with the police and told him the police had video showing the time he went into the house. Mr. Mylvaganam commented that, “It’s a tragedy” and appeared upset. Two minutes later, he asked if he could sit on the floor and said he did not feel good.

[54] As Detective Goetz continued to talk, Mr. Mylvaganam said that he was exercising his right. The officer responded by saying, “You need to exercise your best judgment here tonight.” He reiterated that Mr. Mylvaganam had been identified. Mr. Mylvaganam said, “I haven’t done nothing”. He continued to spit into the garbage can. Detective Goetz continued to talk. Mr. Mylvaganam again said that he was exercising his right. Detective Goetz talked about Mr. Mylvaganam’s children for about six minutes, until Mr. Mylvaganam asked to go to the washroom, saying that he had gas and had ulcers in the past. Detective Goetz took him to the washroom. On their return to the interview room, Detective Goetz asked if he wanted anything to eat. Mr. Mylvaganam asked to have his french fries reheated. He also said that he felt weak and wanted to sleep for a couple of hours. The officer took the french fries and left the interview room. He was gone for about fourteen minutes, speaking with other officers about the interview. In the officer’s absence, Mr. Mylvaganam stretched out on two chairs. He continued to spit into the garbage can.

[55] When Detective Goetz returned to the room, he did not bring the french fries with him. He testified that he forgot them. He said that he saw no deterioration in Mr. Mylvaganam’s condition. He told Mr. Mylvaganam to sit up and get serious, that other officers said he was “full of shit”. Mr. Mylvaganam expressed his right to remain silent. The officer replied, ‘Yeah, but come on” and continued to urge him to talk. Mr. Mylvaganam reiterated that he was not saying anything.

[56] Detective Goetz raised his voice as he spoke about the co-accused. He reviewed some phone records and text messages from Mr. Mylvaganam’s phone the night of the murder, and said that the police had video of them going into the house. Mr. Mylvaganam debated with the officer the meaning of a particular text message.

[57] At five hours and twenty-two minutes into the statement, Mr. Mylvaganam said that he was exercising his right to remain silent, suggested that he go to his cell and sleep until morning, and said that he wanted to talk to his lawyer face to face. Detective Goetz again raised his voice and accused Mr. Mylvaganam of lying to him about losing his phone. It was approximately 23:15:50 hours.

[58] For the next hour and forty-five minutes, Detective Goetz did most of the talking, aggressively repeating his assertion that Mr. Mylvaganam was the shooter. During this period, Mr. Mylvaganam made no admissions. He asserted his right to silence approximately a dozen times. He told the officer that he had been sick for a couple of days with the stomach flu, and that he felt sick.

[59] Detective Goetz testified that Mr. Mylvaganam never vomited that night. Based on his observations, he did not believe Mr. Mylvaganam needed medical help. He testified that he continued to speak or ask questions after Mr. Mylvaganam asserted his right to silence, because he understood from his training that he had the ability to do so. Sometimes he acknowledged Mr. Mylvaganam’s assertion, other times he did not

The Positions of the Parties

[60] The only issue on this voir dire is voluntariness. No Charter challenge was raised by the defence.

[61] On behalf of the Crown, Ms. Rumble concedes that the portion of the interview from 23:15:50 hours on to its conclusion has no probative value on the trial proper, as Mr. Mylvaganam said virtually nothing. Ms. Rumble’s submissions were focused on the portion of the statement that preceded that point in time, in other words the initial five hours and twenty-two minutes of the interview.

[62] Ms. Rumble submits that the statement was proved voluntary beyond a reasonable doubt. While the conduct of the police at the time of arrest was potentially threatening, there is no nexus between that conduct and the video recorded statement. The arrest and the statement involved different officers, and were separated in place and time. She contends that there was no atmosphere of oppression in the interview room such that Mr. Mylvaganam’s free will was undermined. In particular:

• The statement was taken after Mr. Mylvaganam was told the reasons for his arrest, cautioned, given his rights to counsel, and had the opportunity to speak to counsel in private. He told Detective Goetz that he understood the charges and his rights;

• He was given a meal and something to drink at the outset of the interview;

• Detective Goetz was persistent and repetitive, but the interview up until 23:15:50 hours was conducted in a non-aggressive manner;

• The officer’s comments about it being Mr. Mylvaganam’s opportunity to speak to him did not suggest it was Mr. Mylvaganam’s only chance to speak to the police. It was neither oppressive nor a veiled threat;

• While Mr. Mylvaganam asserted his right to silence at times, his will to remain silent or to talk was never undermined or overborne. He chose to answer some questions, and not others. He did not hesitate to disagree with or deny suggestions put to him by Detective Goetz. He never admitted involvement in the murder;

• Although he complained of feeling unwell at various points during the interview, his replies to questions remained responsive and articulate. He laughed at some of the things the officer said. He did not present with an urgent health issue that required immediate intervention. He was offered food and water, and was taken to the washroom whenever he requested.

[63] Ms. Rumble argues that even if there were oppressive circumstances, there is no nexus between them and Mr. Mylvaganam’s decision to speak about some topics but not others.

[64] On behalf of Mr. Mylvaganam, Mr. Bawden submits that given the oppressive circumstances surrounding the taking of the statement, there is a reasonable doubt about its voluntariness. He contends that those circumstances include:

• Mr. Mylvaganam’s arrest at gunpoint by armed ERU officers, ninety minutes before the interview by Detective Goetz began. Mr. Bawden does not complain about the manner of the arrest. He also states that there is no need for me to resolve contradictions in the evidence of the various officers. He emphasizes, however, that the arrest would have been a harrowing experience for Mr. Mylvaganam;

• Mr. Mylvaganam’s physical illness, which investigators failed to address even though Mr. Mylvaganam told the booking sergeant that he suffered from sickle cell anemia. Mr. Bawden points out that the lost booking tape might have provided relevant evidence about Mr. Mylvaganam’s physical condition and attire, as well as an accurate record of anything Mr. Mylvaganam said about injury or illness;

• Mr. Mylvaganam’s complaint of being cold, which Detective Goetz failed to address;

• The denial of sleep;

• The officer’s relentless questioning in the face of Mr. Mylvaganam’s repeated stated intention to remain silent, rather than an acknowledgement that he was free to end the interview and leave the room;

• The officer’s misrepresentation of the evidence gathered by the police, including both lies and exaggerations, in order to increase Mr. Mylvaganam’s sense of hopelessness. Mr. Bawden suggests that in his testimony, Detective Goetz tried to minimize his efforts in this regard;

• The officer’s insistence that Mr. Mylvaganam speak then or suffer significant consequences when the co-accused implicated him. These statements can also be viewed as veiled threats.

[65] Mr. Bawden submits that there is a nexus between the oppressive circumstances and Mr. Mylvaganam’s decision to speak. He points out that one concern about oppressive circumstances is that they can produce an unreliable statement. In addition, oppression is incompatible with the integrity of the justice system, including the fair treatment of accused persons. He further submits that the fact Mr. Mylvaganam did not confess to the murder is irrelevant. The law does not distinguish between confessions and other kinds of statements to police officers. A false statement can be just as damaging as a confession. It is his position that oppressive circumstances permeated the entire interview, and so the statement should be excluded in its entirety.

[66] Mr. Bawden argues that even if I do not have a reasonable doubt about the voluntariness of the statement, I have a discretion to exclude it if I find that the police conduct would tend to bring the administration of justice into disrepute. He says that I should so find, given the derogatory goading of Mr. Mylvaganam that Detective Goetz engaged in after 23:15:50 hours, and that this should result in exclusion of the entire statement.

The Legal Framework

(a) Governing Principles

[67] In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the Supreme Court of Canada at paragraph 69 referred to voluntariness as the “touchstone” of the common law confessions rule. A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. The court held that relevant factors include threats, promises or other improper inducements; oppression; lack of an operating mind; and police trickery.

[68] There are, however, no hard and fast rules as to the circumstances that will vitiate the voluntariness of a confession. The trial judge must be alert to the entirety of the circumstances surrounding the statement, including the “particularities” of the interviewee: see paragraph 42. The analysis must be a contextual one, and all relevant factors must be considered: see paragraphs 47 and 68 to 71.

[69] Subsequently, in R. v. Singh, 2007 SCC 48, the court observed that the confessions rule encompasses the right to silence, meaning an accused person’s right to make a meaningful choice whether to speak to the police or not. Police persistence in questioning an accused in the face of his repeated assertions of the right to silence may deny him a meaningful choice whether to speak or to remain silent: see paragraphs 47 and 53. The court said at paragraph 38 that, “The mere presence of a doubt as to the exercise of the detainee’s free will in making the statement” will render it inadmissible under the common law.

[70] On the question of voluntariness, the court held that the focus is on the conduct of the police and its effect on the individual’s ability to exercise his or her free will. The test is an objective one, but the individual characteristics of the subject are relevant considerations in applying the objective test: see paragraph 36.

[71] It remains open to the police to use legitimate means of persuasion to encourage a person to talk to them: R. v. Roy, [2002] O.J. No. 5541 (S.C.J.), at paragraph 335, appeal dismissed 2003 4272 (ON CA), [2003] O.J. No. 4252 (C.A.).

(b) Inducements

[72] The court held in Oickle that not all inducements to confess are improper. An inducement becomes improper only when it, 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 said, at paragraph 57, that the most important consideration in all cases is to look for a quid pro quo offer by the police. Where the accused is treated properly by the police, it will take a stronger inducement to render the confession involuntary: see paragraph 71.

[73] Subsequently, in R. v. Spencer, 2007 SCC 11, the court clarified that while a quid pro quo offer is an important factor in establishing the existence of a threat or promise, any quid pro quo offer does not automatically render a statement involuntary. It is the strength of the inducement having regard to the particular individual and his or her circumstances that is to be considered: see paragraph 15.

[74] In Oickle, the court held at paragraph 55 that comments such as “it would be better if you told the truth” require exclusion of a statement “only where the circumstances reveal an implicit threat or promise.” The use of appeals to conscience and morality will not generally produce an involuntary confession, because the inducement is not in the control of the police.

(c) Oppression

[75] The court commented in Oickle at paragraph 68, that “oppressive conditions and inducements can operate together to exclude confessions.”

[76] Oppressive circumstances are not limited to inhumane treatment by the police. An atmosphere of oppression can be created by “excessively aggressive, intimidating questioning for a prolonged period of time”: see Oickle, at paragraph 60.

[77] The use of non-existent evidence to convince the interviewee that protests of innocence, even if false, are futile is another possible source of oppressive conditions. The court commented in Oickle that confronting an interviewee with fabricated evidence is not necessarily grounds for excluding a statement, but when combined with other factors it is a relevant consideration in deciding whether a statement is voluntary.

Analysis

[78] While some of the circumstances identified by Mr. Bawden might be characterized as threats or inducements, for the purpose of this case he addressed them as aspects of an atmosphere of oppression. I will do the same.

[79] Mr. Mylvaganam did not testify on the voir dire. His failure to do so cannot convert inadequate proof of voluntariness into proof beyond a reasonable doubt. However, as was said in R. v. Roy, above, it is helpful when voluntariness is the issue, to have direct evidence of the interviewee’s state of mind.

[80] I have considered the entirety of the circumstances surrounding the statement. I am satisfied beyond a reasonable doubt of the voluntariness of the statement, up until approximately three hours and twenty-three minutes into it, at which point Mr. Mylvaganam doubled over in the chair, asked to use the washroom, said, “I can’t keep on doing this” and complained of feeling sick. For ease of reference, that point is reflected at page 186 of the transcript of the interview.

[81] I am not satisfied beyond a reasonable doubt of the voluntariness of the statement from that point on.

[82] I reach that conclusion for the following reasons.

[83] As of April 14, 2011, Mr. Mylvaganam was an adult person of at least normal intelligence. He had a high school education, and planned to return to school at a particular community college. He was employed as a landscaper.

[84] I have considered the manner of Mr. Mylvaganam’s arrest by means of a “high risk” take-down. The defence does not suggest that the manner of Mr. Mylvaganam’s arrest was improper. I find that the police had legitimate reasons to effect a take-down that involved the pointing of a gun or guns at him and the use of a strike to his leg. There was, however, a gap of approximately ninety minutes between his arrest and the commencement of the interview by Detective Goetz, an officer who had no involvement in the take-down. In the interim, Mr. Mylvaganam was treated humanely and respectfully by the Homicide Unit officers who took custody of him on arrest and transported him to the station, and also by the Staff Sergeant who oversaw his booking. While the arrest formed part of the background to the interview, it did not contribute to the creation of any oppressive circumstances.

[85] It is clear that at the outset of the interview, Mr. Mylvaganam understood the reasons for his arrest, and exercised his rights to counsel by speaking by telephone with the lawyer of his choice. It also is clear that he understood he had the right to remain silent. In fact, he shared with Detective Goetz his lawyer’s advice to exercise his right.

[86] In the almost three and a half hours from the beginning of the interview until the point when he doubled over, Mr. Mylvaganam said, eleven different times, that he was exercising his right to remain silent. Yet, he continuously provided both verbal and non-verbal responses to questions, sometimes at length. From the very beginning of the interview, he answered, verbally or non-verbally, questions about his background and personal circumstances. Almost two hours into the interview, he told Detective Goetz that he lost his phone, and then answered questions for over an hour before he asserted his right to silence when asked about the location of a party.

[87] When the first three hours and twenty-three minutes of the interview is considered as a whole, it is apparent, and I find, that Mr. Mylvaganam’s assertion of his right to remain silent was simply an expression of his decision not to answer a particular question. He chose, for his own reasons, to answer some questions, but not to answer others. This is not indicative of an individual who was deprived of the right to make a meaningful choice whether to speak to the police or not.

[88] During this period, the manner in which Detective Goetz questioned Mr. Mylvaganam was not overly aggressive. It stands in contrast to the officer’s approach later in the interview, for example, after approximately five hours and twenty-two minutes when he raised his voice and accused Mr. Mylvaganam of lying to him and playing games. On occasion, Detective Goetz did move closer to Mr. Mylvaganam, but I find that Mr. Mylvaganam was not intimidated by the officer in this earlier period. He laughed at or with him, for example when there was reference to the officer’s apparent age, and discussion about relationships with women. At another point, when Detective Goetz spoke about the mother of Mr. Mylvaganam’s child, Mr. Mylvaganam told the officer he was acting like “Doctor Phil”. There were occasions when Mr. Mylvaganam corrected information the officer attributed to him, for example, whether he went out on a particular person’s birthday.

[89] I agree that during the first three hours and twenty-three minutes, Detective Goetz exaggerated the evidence that the police had gathered, when he told Mr. Mylvaganam that Mr. Pan remembered who was in the house, that Jennifer Pan told the police what happened in the house, and that he was identified as being there that night. Detective Goetz testified that he understood Mr. Pan had responded “Maybe” when shown Mr. Mylvaganam’s photograph. No evidence was presented on the voir dire to contradict this. I am unable to conclude that in this portion of the interview, Detective Goetz did more than overstate the available evidence. Further, it was only after Detective Goetz told Mr. Mylvaganam that his phone was the one that called Ms. Pan before the entry to the house, that Mr. Mylvaganam asserted he had lost the device. There is no evidence before me on this voir dire that Detective Goetz lied about the phone call, or otherwise fabricated evidence. The exaggeration of the evidence in this portion of the interview did not rise to the level of fabrication of evidence. It was not so extreme, or unfair, as to amount to oppression. Given the nature of Mr. Mylvaganam’s responses, it did not operate to convince him that protests of innocence were futile.

[90] Detective Goetz told Mr. Mylvaganam that he needed to be able to tell his side of the story and “tonight’s that chance”. He also said that Mr. Mylvaganam was “not going to get that chance to be honest with me down the road because I’m here tonight investigating this, okay? I’m here talking to you about it tonight”. Later he said, “This is your opportunity.”

[91] I agree that in some circumstances, suggesting to the subject of an interview that there will be no other opportunity to speak with the police could create an unfair sense of pressure. Read in context, however, Detective Goetz’s words referred only to the opportunity to speak to him. There is no evidence before me that Mr. Mylvaganam understood those words to mean that this was his one and only opportunity to give the police whatever information he wished to provide.

[92] Mr. Mylvaganam was not physically mistreated during this period. He was given a meal and a beverage, an elastic for his hair at his request, use of the washroom whenever he asked, and water to drink. During this period, he made a comment that he has anxiety attacks with no sleep. He did not expand on that comment. It was approximately 7:20 p.m. He had been in police custody for only three hours. There is no evidence that he made a request to sleep or that the police deprived him of sleep to that point. It was not until later that he complained that he needed to sleep.

[93] During the initial three hours and twenty-three minutes of the interview, Mr. Mylvaganam said more than once that he was cold. The first time was approximately one hour and two minutes into the interview, as he was being taken from the interview room to go to the washroom. The second time was about twenty minutes later, when he asked for a blanket. Detective Goetz replied that there were no blankets at the station. The third time was approximately an hour later, when he asked to use the washroom, said that he was cold, and said that he has “sickle cell”. The fourth time was approximately 50 minutes later, when Mr. Mylvaganam asked for iron tablets and said that he felt cold from his feet to his head.

[94] I accept the evidence of Detective Goetz that the interview room was kept at the same temperature as the rest of the station. There is no evidence that the temperature in the room had been deliberately lowered to cause discomfort to Mr. Mylvaganam. I accept the testimony of Detective Goetz, which is echoed to some extent by that of Staff Sergeant Lambert, that items such as iron pills and blankets were not available at the police station. I also accept the testimony of Staff Sergeant Lambert that for safety reasons, prisoners are not permitted to wear their jackets after they are booked into custody at the station. Mr. Mylvaganam may have found the room cold, but there is no indication that he said what he did to Detective Goetz for the first three hours and twenty-three minutes of the interview to get moved somewhere warmer. There is no evidence that the temperature of the room interfered with his ability to make a meaningful choice whether to speak to the officer or remain silent.

[95] I accept the evidence of all the officers who dealt with Mr. Mylvaganam at the scene of his arrest, that he neither complained of injury or illness nor showed any signs of injury or illness, other than a scraped chin. The audio recording of Mr. Mylvaganam’s dealings with officers MacDonald and Stock at the scene and en route to the station confirms that he said nothing about medical concerns other than his scraped chin. I accept the testimony of Staff Sergeant Lambert that when he was booked, Mr. Mylvaganam said he had sickle cell anemia, but showed no signs of illness or injury, and did not have any medication with him. The loss of the booking video did not create a gap in the evidence, given the existence of the audio recording and the testimony of Staff Sergeant Lambert.

[96] I further find that at the time Detective Goetz began his interview of Mr. Mylvaganam, there was no medical concern. I agree that as the interview progressed, Mr. Mylvaganam said that he was feeling unwell, and gave various explanations for this. As a matter of common sense, the mere assertion by the subject of a police interview that he or she feels ill does not necessarily cast doubt on the voluntariness of a statement. I accept the testimony of Detective Goetz that it is not unusual for persons being interviewed by the police to feel unwell. The question is whether the individual’s physical condition is such that it interferes with his or her ability to make a meaningful choice to speak to the police or not, or otherwise creates unfairness, for example by impeding the ability to express him or herself.

[97] I am satisfied that in this case, that point did not occur until Mr. Mylvaganam doubled over in his chair and said that he could not continue, three hours and twenty-three minutes into the statement. Up until then, while Mr. Mylvaganam said that he felt ill, there was little, if any, manifestation of a medical condition that interfered with his ability to participate in the interview, nor did he say that he was unable to continue. However, from that point on, indicators that he was unwell were present, including the way in which he positioned himself in the interview room, and his retching and spitting into the garbage pail that he asked be moved closer to him. For this reason, I have a reasonable doubt about the voluntariness of the statement beyond the first three hours and twenty-three minutes.

[98] Mr. Bawden contends that paragraph 34 of the majority decision in Singh stands for the proposition that even where there is no doubt about the voluntariness of a statement or part of it, a judge can exclude it in its entirety if its admission would tend to bring the administration of justice into disrepute. Mr. Bawden concedes that he knows of no authority for this interpretation of paragraph 34. Nonetheless he points to comments made by Detective Goetz some five hours and more into the interview, which he suggests constituted derogatory baiting and goading of Mr. Mylvaganam. For example, Detective Goetz suggested that one of the co-accused would say that Mr. Mylvaganam was his “little bitch” whom he instructed to commit the murder. Mr. Bawden contends that because of those comments, the entire statement should be excluded.

[99] I have some reservation that the proposition advanced by Mr. Bawden is a correct statement of the law. Assuming, without deciding, that such a basis for exclusion exists, I am not persuaded that anything said by Detective Goetz was so offensive that to admit any portion of the statement would tend to bring the administration of justice into disrepute.

Conclusion

[100] I am satisfied beyond a reasonable doubt of the voluntariness of the portion of the statement that precedes Detective Goetz’s question beginning “Do you have, um ah - a girl” at approximately three hours and twenty-three minutes into the interview, reflected at page 186 of the transcript. That portion of the statement is admissible.

[101] I have a reasonable doubt about the voluntariness of the portion of the statement from that point on to its conclusion. That portion of the statement is not admissible.

Justice M.K. Fuerst

Released: January 9, 2014

COURT FILE NO.: CR-11-9099 DATE: 20140109

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DAVID MYLVAGANAM

REASONS FOR JUDGMENT

FUERST J.

Released: January 9, 2014