ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-10657

DATE: 2014/02/20

PUBLICATION BAN IN EFFECT UNDER S. 648 OF THE CRIMINAL CODE

BETWEEN:

HER MAJESTY THE QUEEN
Applicant

– and –

KHAMEA LOUANGRATH
Respondent

Matthew Geigen-Miller, for the Applicant

David Anber, for the Respondent

HEARD: February 18, 2014

RULING #1: ADMISSIBILITY OF STATEMENT

Aitken J.

Nature of the Application

[1] Khamea Louangrath is charged with assault causing bodily harm, forcible seizure, and robbery in regard to an attack against Brad Morrice and Tyler Fradette that occurred in the Market area of Ottawa near midnight on April 23, 2011. Earlier in the evening, Mr. Louangrath had been involved in a minor altercation with Messrs Morrice and Fradette in regard to a parking space in the Market close to a nightclub called The Drink. At the commencement of this trial, Mr. Louangrath pled guilty to a charge of assault against Mr. Morrice arising out of this skirmish.

[2] At some time following this altercation, the car that Mr. Louangrath had been driving and that he had parked in the Market area, was vandalized.

[3] Later that night, a group of men entered The Drink, dragged Messrs Morrice and Fradette off the dance floor and out into an alley, assaulted them, and robbed them. It is alleged that Mr. Louangrath was a principal offender or a party to these offences.

[4] At 12:41p.m. the following day, a person, who identified himself as Khamea Louangrath, telephoned the Ottawa Police Reporting Centre, spoke to Sacha Vezina (a civilian call-taker), and reported the damage to the vehicle that he had been driving. The telephone call was recorded. The audiotape was played on the voir dire and a transcript, verified as being accurate by Mr. Vezina, was also provided to assist the court.

[5] The Crown wishes to tender this conversation in evidence because: (1) although the caller stated that he had just discovered the damaged vehicle, there is other evidence to the effect that Mr. Louangrath told a third party at The Drink the night before that Messrs Morrice and Fradette had damaged his vehicle; (2) although the caller stated that the car was parked at a particular locale, there is other evidence to the effect that it was parked in another location; and (3) although the caller stated that he did not suspect anyone in particular in regard to the damage done to his vehicle, there is conflicting evidence that Mr. Louangrath had earlier accused Messrs Morrice and Fradette of having caused the damage.

[6] The Crown seeks a ruling that this telephone conversation was voluntary and is admissible in evidence under the common law confessions rule.

Common Law Confessions Rule

[7] No statement made out of court by an accused to a person in authority can be admitted into evidence against him unless the prosecution shows, to the satisfaction of the trial judge, that the statement was made freely and voluntarily (R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449 at para. 12).

First Question: Is there some evidence that the call was made by Mr. Louangrath?

[8] Before a statement is ruled admissible pursuant to the common law confessions rule, there must be at least some evidence to be submitted to the jury that supports a finding that the call was, in fact, made by the accused. The judge is not obliged to weigh that evidence. Ultimately, it will be for the jury to decide whether the accused made the statement (R. v. Gauthier, 1975 193 (SCC), [1977] 1 S.C.R. 441 at 448; R. v. Park, 1981 56 (SCC), [1981] 2 S.C.R. 64 at 77).

[9] The evidence on the voir dire consisted of the statement itself, motor vehicle registration information from the Ministry of Transport in regard to a vehicle owned by Phouthone Louangrath, driver information from the Ministry of Transport in regard to Khamea Louangrath, and the testimony of Sacha Vezina.

[10] The evidence that Mr. Louangrath was the person who made the call to the Ottawa Police Reporting Centre early in the afternoon of April 24, 2011 is the following:

• The caller identified himself as Khamea Louangrath;
• The caller spelled Khamea Louangrath in the same manner as the accused does;
• The caller provided the correct birthdate for the accused;
• The caller provided the correct street address for the accused’s residence;
• The caller was not calling from the accused’s address or from outside that address;
• The cell phone number that the caller provided was the cell phone number of the accused;
• When Sacha Vezina called that cell phone number, the person who answered was the same person whom Mr. Vezina had spoken to moments before, and he identified himself as Khamea;
• The caller provided the licence plate of the vehicle owned by the accused’s brother, Phouthone Louangrath;
• The caller advised that the vehicle in question was owned by his brother, he provided the name of his brother (Phouthone Louangrath), and he confirmed the correct spelling of that name; and
• The caller provided the correct description of the vehicle that was owned by Phouthone Louangrath.

[11] I find that this evidence is sufficient to constitute “some evidence” which could result in a jury reasonably inferring that the person who called the Ottawa Police Reporting Centre and who spoke to Sacha Vezina was the accused, Khamea Louangrath.

Second Question: Was Sacha Vezina a “person in authority”?

[12] The voluntariness rule arose out of concerns about the reliability of statements attributed to the accused and about fundamental principles of fairness, such as the principle against self-incrimination. The objective of the rule is to deter coercive state tactics and thereby to promote fairness and minimize the likelihood of unreliable confessions (Hodgson at paras. 14-21).

[13] The person in authority requirement generally refers to anyone formally engaged in the arrest, detention, examination, or prosecution of the accused (Hodgson at para. 16; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27 at para. 37). Peace officers and prison guards are clearly “persons in authority” for the purpose of the voluntariness rule. Beyond that, a case-by-case consideration is required based on the extent to which the accused reasonably believed that he was speaking to a person in authority who could influence or control the proceedings against him (Hodgson at paras. 32-34; Grandinetti at paras. 38-39). Thus, the analysis has both a subjective and an objective component.

[14] The accused bears an evidential burden of establishing whether the person to whom he spoke was a person in authority. Thus, the accused has the obligation to ensure that there is some evidence on the record to make the question of whether the person was a person in authority a live issue. Once the accused has discharged this evidential burden, “the burden shifts to the Crown to establish beyond a reasonable doubt either that the receiver is not a person in authority, or, if this burden cannot be discharged, that the statement was made voluntarily” (Hodgson at paras. 37-39).

[15] Generally, in earlier jurisprudence, if an accused believed that the receiver of the statement was an “agent of the police or prosecuting authorities”, “allied with the state authorities”, “acting on behalf of the police or prosecuting authorities”, “acting in concert with the police or prosecutorial authorities, or as their agent”, and capable of influencing the investigation or prosecution against him, that person was found to be a person in authority (Hodgson at paras. 34-36, and 47; Grandinetti at para. 43).

[16] In this case, when he received Mr. Louangrath’s call, Sacha Vezina was a civilian employee of the Ottawa Police Services whose responsibility was to answer calls directed to the Ottawa Police Reporting Centre. He was not a peace officer. His role was to answer non-emergency calls, to receive information from the caller, to prepare a report, and to forward the report to the proper section within the Ottawa Police Services. He played no role in the investigation of crimes, aside from receiving initial information from the person calling to report a crime. He played no role in the arrest, detention, interrogation, or prosecution of suspects.

[17] Here, the accused, Mr. Louangrath, did not testify on the voir dire. He relied on the telephone call itself to meet his evidential burden of raising the issue of whether he perceived Sacha Vezina to be a “person in authority” when he was speaking to him. More specifically, Mr. Louangrath relied on the following evidence:

• Mr. Louangrath called the Ottawa Police to report a crime, ostensibly for insurance purposes;
• Mr. Louangrath’s call was directed to the Ottawa Police Reporting Centre as it was not an emergency;
• Mr. Vezina told Mr. Louangrath that he would complete a mischief report;
• When Mr. Vezina called back to Mr. Louangrath’s cell phone number to confirm the name of the registered owner of the vehicle, he identified himself as calling from the Ottawa Police; and
• Mr. Louangrath would have realized as a result of the call-back from Mr. Vezina that Mr. Vezina had access to information concerning the registration of motor vehicles.

[18] On the other hand, the Crown pointed to the following evidence which tended to show that Mr. Louangrath did not perceive Mr. Vezina to be a person in authority and that it would have been unreasonable for him to have done so:

• When Mr. Louangrath asked Mr. Vezina who he was, Mr. Vezina gave his first name and his employee number. He did not identify himself as a police officer;
• Mr. Louangrath claimed to be calling the Ottawa Police in regard to the separate incident of his vehicle having been vandalized. He made no mention of the incident which gave rise to the charges he is now facing and, therefore, he had no reason to suspect that Sacha Vezina would be involved in Mr. Louangrath’s arrest, detention, interrogation, or prosecution for the charges he now faces;
• During the telephone calls, Mr. Vezina gave Mr. Louangrath no reason to believe that he would be involved in the investigation regarding the charges at issue in this case or that he would have any ability to influence the outcome of those charges;
• The stated reason for Mr. Louangrath’s call to the Ottawa Police was to report damage to his vehicle and to get the number of the police report so that he could provide that to his insurance company; and
• At no time during the conversation between Mr. Louangrath and Mr. Vezina did Mr. Louangrath ever suggest that he was speaking to a person in authority who could influence the outcome of any future charges against him.

[19] In each of R. v. Latham, [1993] O.J. No. 4534 (Gen. Div.) and R. v. Paquette (1999), 94 O.T.C. 182 (Gen. Div.), the accused called 911 to report a shooting. In both cases, the court determined that the 911 operator was not a person in authority. The 911 operator was not considered to be an agent of the police. In addition, the operator was not otherwise involved in the arrest, detention, examination, or prosecution of the accused. Nor was there any evidence to suggest that the accused reasonably thought that the 911 operator was a person in authority.

[20] The circumstances of this case are slightly different in that Mr. Vezina was not a 911 operator but was, instead, a civilian call-taker working for the Ottawa Police Services. It is arguable that someone would think that Mr. Vezina was, in some fashion, an agent of the police.

[21] Furthermore, some of the information volunteered by Mr. Louangrath to Mr. Vezina could be interpreted as an attempt on his part to reduce any suspicion that might exist regarding his involvement in the offences against Messrs Morrice and Fradette. He claimed to have parked his vehicle at a locale more distant from The Drink than other witnesses could place it. He claimed that he had left his car parked in the Market overnight because he had consumed too much alcohol and could not drive home safely. He claimed not to have seen the damage to his vehicle until shortly before he called the police on April 24, 2011 at approximately noon. He suggested that the damage to the vehicle had likely occurred overnight. He claimed not to be aware of any potential suspects. During the course of the trial, the Crown will be tendering evidence to contradict these assertions. This raises the question as to whether Mr. Louangrath’s call to the police was for the purpose of having a police report created for insurance purposes or whether it was, in fact, an effort to mislead the police. Based on the reasoning in Grandinetti at paras. 39-44, the concept of a “person in authority” does not include someone who “seeks to sabotage the investigation or steer the investigation away from a suspect that the state is investigating”.

[22] Although the question of whether Sacha Vezina is a person in authority is an interesting one, I do not see the need to determine it conclusively. As outlined below, even assuming that the Crown has not proven beyond a reasonable doubt that Mr. Vezina was not a person in authority, the answer to the third question is so patently obvious so as to be determinative of this application.

Third Question: Was Mr. Louangrath’s statement to Mr. Vezina voluntary?

[23] Under the common law confessions rule, the Crown must prove beyond a reasonable doubt that any statement made by an accused to a person in authority was voluntary (R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3). The required analysis is contextual. As outlined in Oickle, some of the factors to be considered by the court include whether the police made any threats or promises; whether the circumstances in which the statement was made were oppressive; whether the accused had an operating mind when the statement was made; and whether the police used trickery in order to get the accused to make the statement. The first three factors are generally considered together. The use of police trickery to obtain a confession is a distinct inquiry.

[24] In the circumstances of this case, there is no evidence whatsoever of any factors suggesting the exercise of coercive powers on the part of the state.

[25] Mr. Louangrath initiated the telephone call to the Ottawa Police. He volunteered information as to why he was calling. The stated purpose for his call was to have a police report completed about the vandalism done to his vehicle so that he could provide the number of the police report to his insurance company. He willingly provided personal details and details about the vehicle in question. He provided additional information about subjects not raised by Mr. Vezina, such as his having had too much to drink the night before and his leaving his car in the Market area overnight. At no time did Mr. Vezina make any threats or promises. It was clear from the conversation that Mr. Louangrath had an operating mind and was communicating in an efficient and precise manner. No police trickery was employed to get any information from Mr. Louangrath.

Disposition

[26] The Crown’s application is granted and the statement made by Mr. Louangrath to Mr. Vezina is ruled voluntary and admissible.

Aitken J.

Released: February 20, 2014

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

KHAMEA LOUANGRATH

Respondent

RULING #1: ADMISSIBILITY OF STATEMENT

Aitken J.

Released: February 20, 2014