ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-5008
DATE: 2014/03/10

BETWEEN:

HER MAJESTY THE QUEEN
Applicant

– and –

MICHAEL SLATER
Respondent

Lisa Miles and Sarah Fountain, for the Crown

Jill Copeland and Jessica Orkin, for the Applicant

HEARD: January 27-30, 2014 (Ottawa)

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the complainant J.R. may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

RULING ON VOIR DIRE Re. Admissibility

of Videotaped Statements

PARFETT J.

[1] The Crown seeks a ruling on the admissibility of two videotaped statements made by the accused. The only issue is voluntariness.

Background

[2] The accused in this matter, Michael Slater, was an elementary school teacher and taught both of the complainants. The school in question was the Elizabeth Park Intermediate School. Mr. Slater taught grades seven and eight. In October 2010, Mr. Slater was charged with sexual assault involving the first complainant. After charges were laid, a news article appeared in the Ottawa newspapers asking anyone with information in relation to Mr. Slater to contact Ottawa Police. Further charges were laid with respect to the allegations of the second complainant.

[3] On October 6, 2010, Mr. Slater drove to Ottawa from Renfrew and turned himself in to police at the central police station in downtown Ottawa. He was arrested, read his rights to counsel and cautioned. In addition, he was provided with an opportunity to speak to counsel. He arrived at 10:40 a.m. and, after processing, remained in his cell until 1:00 p.m. at which point the investigating officer, Det. Patricia Urquhart, brought him to the interview room. She interviewed him over the course of the next hour and 40 minutes. When she finished, her partner, Sgt. Jeff Webster, continued the interview for another forty minutes. Mr. Slater provided an exculpatory statement. He was returned to his cell at 3:20 p.m. and released the next day.

[4] On February 9, 2011, Mr. Slater again drove down from Renfrew and turned himself in. On this occasion, he arrived at 8:05 a.m. He was arrested on the second set of charges and read his rights to counsel and the cautions. Although he indicated that he had spoken to his lawyer the night before, he was nonetheless provided with a further opportunity to speak to counsel. At 9:47 a.m., he was taken into an interview room and interviewed again by Det. Urquhart for approximately 2 hours and 15 minutes. He once again provided an exculpatory statement.

[5] Crown counsel submits that although there are some areas of concern in both statements, taken as a whole, it is clear that the statements were the product of an informed choice to speak. On the other hand, Defence argues that there are numerous problematic areas, involving inducements, ignoring the accused’s assertion of his right to silence, undermining the advice of counsel and oppression that render the voluntariness of the statements suspect.

[6] For the reasons that follow, I conclude that both statements are admissible.

Analysis

Voluntariness Principles

[7] Historically, at common law, the starting point for any discussion of the admissibility of evidence was the presumption that all evidence that is relevant, probative and reliable is admissible in court.[^1] Evidence could be excluded, but generally if evidence was ruled inadmissible, it was because either the evidence was unreliable, or of little probative value.[^2] These basic principles still hold true today.

[8] Statements by an accused occupy a special place in the rules of common law evidence because several principles are at play in determining whether they should be admitted. In R. v. Oickle,[^3] the separate strands of the confessions rule, which included

• the right not to be tortured or coerced;[^4]

• the presence of a mental element that permitted the accused to decide freely between alternatives (operating mind);[^5] and

• the absence of an atmosphere of oppression[^6]

were synthesized to create the present day confessions rule.

[9] The present confessions rule has a broader scope than the rights that are contained in the Canadian Charter of Rights and Freedoms.[^7] First, the burden of proof is different, as is the standard of proof – the Crown must establish beyond a reasonable doubt that the pre-trial statement was voluntary. Secondly, a violation of the confessions rule leads to an automatic exclusion of the statement.[^8]

[10] The confessions rule as set out in Oickle is concerned with five factors:

1. Threats, promises or inducements;
2. Oppression;
3. Operating mind; and
4. Other police trickery.

[11] In the present case, only the first two factors are at issue. Consequently, I will elaborate only on those factors.

[12] As noted in Oickle, it is not the obvious threat or inducement that is generally problematic; it is the subtle or veiled threat or inducement.[^9] Courts have commonly excluded statements where the police have suggested that it would be “better” if the accused spoke to them. The implication is that dire consequences might flow from a failure to talk. However, certain variations on that theme, such as “it would be better if you told the truth”, have not resulted in a finding of involuntariness.[^10] Even where the more threatening format has been used, the court must still determine if the phrase actually involves an implicit threat or promise.[^11]

[13] The hallmark of a threat or inducement is the existence of a quid pro quo – “if you speak to us, we will do something for you”.[^12] The quid pro quo may be obvious or may be apparent from the context. However, it is the strength of the inducement having regard to the particular circumstances of the individual that must be considered.[^13]

[14] Oppression is primarily concerned with external factors that may influence a person to confess even in the absence of any threats, promises or inducements. Oppression may exist where the suspect has been:

• Deprived of food, clothing, water, sleep or medical attention;

• Denied access to counsel;

• Subjected to excessively aggressive, intimidating questioning for a prolonged period of time; and

• Presented with non-existent evidence.[^14]

[15] The caselaw contains some compelling examples of oppression. As a single example, in R. v. Hoilett,[^15] the suspect was left naked in a cold cell for an hour and a half, was only given some light clothes, was deprived of sleep and was refused both warmer clothes and a tissue.

[16] It is not enough for the court to find a threat or oppressive behaviour. In assessing whether a statement is voluntary, the Supreme Court of Canada has made it clear that the analysis must be contextual.[^16] In Oickle, the Court noted:

[A] court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above.[^17]

[17] In addition, the Court notes that it is important to keep in mind the twin goals of the confessions rule: to protect the rights of the accused, without unduly limiting society’s need to investigate and solve crimes.[^18] Finally, although the test is an objective one, the analysis must take into account the particular circumstances of each individual accused.[^19]

[18] The companion to the confessions rule is the Charter enshrined right of an accused to remain silent. As noted in R. v. Singh:

Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination.[^20]

[19] The right to silence predates the Charter and essentially is an aspect of the confessions rule. Both the confessions rule and the right to silence focus on the individual’s right to choose whether or not to speak to the authorities.[^21] The right to silence at common law reflects the principle that, absent statutory or other legal compulsion, no one is obligated to provide information to the police or respond to questioning.[^22] However, there is a significant caveat to that right. In Singh, the Court states:

What the common law recognizes is the individual’s right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident. Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime.[^23]

[20] In Singh, the accused asserted that the statement in Hebert that “police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence”[^24] meant that the police could ignore a suspect’s stated wish to remain silent. The Supreme Court made short shrift of that argument and stated,

[T]he use of legitimate means of persuasion is indeed permitted under the present rule – it was expressly endorsed by this Court in Hebert. This approach is part of the critical balance that must be maintained between individual and societal interests. Second, the law as it stands does not permit the police to ignore the detainee’s freedom to choose whether to speak or not, as contended. Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities.[^25] [emphasis in original]

[21] In the present case, both the confessions rule – in the form of threats or inducements – and the right to silence are at issue.

Application of the Principles to this Case

[22] As noted earlier, neither operating mind nor police trickery are considerations in this case. The focus of the debate is on oppression and threats or inducements.

Oppression – Both Statements

[23] With respect to oppression, Defence argues that Mr. Slater was a diabetic with high blood pressure and that the police did not ensure that he took his medications during the course of the interview. In addition, Mr. Slater was not offered food or water and was never given the opportunity to take a bathroom break. Finally, Defence suggests that ignoring Mr. Slater’s repeated assertions that he did not want to speak to police, given that Mr. Slater had no previous experience with police interviews and that he was 70-years-old at the time, created an atmosphere of oppression. Defence contends that the lesson Mr. Slater learned over the course of the interview process was that it did not matter that he told them he did not want to speak to them; the interview would simply continue. Therefore, when Mr. Slater spoke it was not a meaningful choice; it was submission to the inevitable.

[24] Crown led evidence of the normal procedure with respect to meals in the cellblock. Not surprisingly, none of the cellblock officers who were on duty three years earlier when Mr. Slater was in that area could recall Mr. Slater specifically. Their evidence consisted of a description of the normal procedure and an indication that any unusual event would have been written up in notes or a report. These witnesses advised that breakfast generally occurred between 6:30‑7:30 a.m., lunch between 12:00-1:00 p.m. and dinner between 5-6 p.m. There could be some minor variation in the times depending on circumstances, and if a prisoner was not in his cell when the meal was delivered, it would be kept for him.

[25] Defence contends that Crown counsel cannot prove positively that Mr. Slater received any meals, although the times of his interviews are such that he should have been given lunch before the first interview and after the second interview. Given that the burden is on the Crown to prove voluntariness beyond a reasonable doubt, Defence states that this absence of positive evidence must lead to the conclusion that Mr. Slater did not receive any food. I disagree. Admittedly, the evidence is circumstantial, but the only reasonable inference to draw from that evidence is that Mr. Slater was in fact fed lunch on both occasions. The officers testified that there was a water fountain in every cell and that had Mr. Slater requested water or a bathroom break, it would have been provided immediately. I accept their evidence.

[26] The evidence of the cellblock witnesses was also that when a prisoner is booked, any medical conditions are canvassed with him. The limited documentary evidence available in this case suggests that this was done. The officers also testified that if a prisoner fails to bring his medications with him, and if he requires those medications at some point during his time in the cellblock, they will either contact a family member and pick the medications up from the home or have a family member bring the medications to the station. During the first interview, the following exchange occurred:

MS: But I forgot to bring my, my eye drops. I have to have an eye drop every morning.
PU: Every morning?
MS: Yeah.
PU: So we have until …
MS: To watch the pressure.
PU: OK
PU: OK so, let’s go back to (pause). You had mentioned when, uh, I mean that’s procedure, when you come in to the cellblock um, what uh, medical conditions and you said you had low blood pressure?
MS: I have blood pressure. I take blood pressure, I take a blood pressure, one blood pressure pill a day. I take four Metformins a day.
PU: Sorry? Four what?
MS: Metformin for diabetes.
PU: OK
MS: And I take one Crestor at night, and in the morning before, when I get out of bed. Before I get out I put a drop into my left eye because the pressure there is, is up too much.
PU: OK, and have you gone without the medications for a day before?
MS: I haven’t before no.
PU: OK, so we don’t know.
MS: So we just hope.
PU: No we’re not gunna hope. No I’m gunna see if I can get a hold of your brother then. And see if he can, bring it down. Are there any other medical conditions?
MS: No, those are the only ones. I, I wouldn’t wanna bother him.
PU: OK
MS: I mean that’s an hour and half down; an hour and a half to drive back.
PU: But, I mean…
MS: I’ll be alright.
PU: It’s better safe than sorry right?
MS: As long as I have something to drink at supper you know.
PU: Well I’ll make sure, I’ll let them know.

[27] There is no evidence that the police were withholding medications from Mr. Slater. Indeed, the only evidence is that the police were intending to take positive steps to ensure that Mr. Slater received his medications. This case is not like R. v. S.E.C. where the accused was refused his medication despite making several requests for it.[^26]

[28] In my view, none of the police actions or inactions in either interview reached the level of oppression. The interviews were of relatively short duration, the interviewers were polite and they treated Mr. Slater with respect. At times, Det. Urquhart showed signs of frustration with Mr. Slater, but nothing more. Both interviewers raised their voices during the interviews, but Sgt. Webster did so only once and only briefly. Det. Urquhart did so on a couple of occasions, but again only briefly. Even taking into account Mr. Slater’s age and his lack of familiarity with police interviews, this behaviour did not create an atmosphere of oppression.

[29] Defence counsel’s last point under the heading of oppression involves the general effect of police questioning on a person unused to such a situation. There is no question that a police interview is not a pleasant experience, but if the police questioning is proper then oppression cannot be said to exist. The effect of the police ignoring Mr. Slater’s repeated assertion of his right to remain silent is more properly dealt with under the next heading.

Threats/Inducements – First Interview

[30] Of much more concern in this case is the effect of the police failure to acknowledge or acquiesce to Mr. Slater’s repeated assertions of his right to remain silent. In the first interview, which lasted 2 hours and 20 minutes, Mr. Slater indicated 23 times that he did not want to speak to the police on the advice of his counsel.

[31] Det. Urquhart’s general approach to Mr. Slater’s statements that he did not want to speak to her was to ignore the comment and continue with the questioning.[^27] Occasionally, she acknowledged what he said before continuing to question him.[^28] In contrast, it is quite noticeable that Sgt. Webster, who is a more experienced interviewer, regularly acknowledged Mr. Slater’s assertion before continuing his questioning.[^29]

[32] Det. Urquhart was every bit as frank as the interviewer in the Singh case. She indicated that she was seeking a confession and that, as a result, she ignored Mr. Slater’s assertions. And, as was noted in Singh, that strategy is a dangerous one as it can lead to the undermining of the suspect’s right to choose between silence and talking to the police authorities.[^30] The end result could be – as Defence counsel contends it was – that the accused talks because he is submitting to the inevitable. In those circumstances, the accused’s choice is not a meaningful one.

[33] The determination of when the accused’s right to silence has been undermined to the point that his choice to speak is not a meaningful one is not a mathematical exercise. It is not simply a matter of adding up the number of assertions and announcing: that is too many. Instead, the assessment must take into account all the circumstances. The ultimate question remains: did the accused exercise free will by choosing to make a statement?[^31]

[34] In this case, the assertions of the right to silence must be assessed in the context of other police behaviour during the interview. Defence contends that two further serious errors were made by the police: first, they made statements that undermined counsel’s advice to Mr. Slater and second, they made threats or inducements.

[35] Defence alleges that during the course of the first interview, the investigator made several statements that undermined counsel’s legal advice when she:

• Asked whether the accused would take a polygraph and when he responded that he would do so if his lawyer agreed, advised him that his lawyer would never give him permission;[^32]

• Told Mr. Slater that it was not always a good idea not to talk to police and that “if you haven’t done this, then your side of the story is very important as well”;[^33] and

• Suggested to Mr. Slater that if he wanted a lawyer present in the room with him, “the procedure that you’re talking about is when somebody’s guilty.”[^34]

[36] In my view, these exchanges are very troubling as they do seek to undermine Mr. Slater’s relationship with his counsel.

[37] There is also an exchange between Sgt. Webster and Mr. Slater where they are discussing some of the terms of Mr. Slater’s divorce. In the context of that discussion, Sgt. Webster indicated that he did not want Mr. Slater to tell him what his lawyer might have said to him.[^35] Defence contends that this discussion may also have undermined the legal advice that Mr. Slater had received. Read in context, it is clear that this discussion relates exclusively to Mr. Slater’s divorce lawyer. On either side of this discussion, there are other exchanges where Sgt. Webster makes positive comments about the fact that Mr. Slater has spoken with counsel.[^36] Consequently, in my view, this exchange does not undermine counsel’s advice to Mr. Slater.

[38] In addition, Defence points to two occasions in the first interview where, in their view, the investigator made inducements. The relevant portions of the transcript read as follows:

MS: What’s going to happen tomorrow morning now…
PU: You go to show cause in the morning.
MS: What does that mean?
PU: That means, um, they make the decisions over there. I give them my file, what the charges are. I can recommend whether you’re kept in custody or released um, so that’s an issue we have to talk about now. Um, are you around children at all?

[Discussion about children living in the vicinity of Mr. Slater]

PU: Well, I can’t promise you anything but um, I don’t, I don’t see why they would hold you if you’re not around children at all. If you’re not a threat…
MS: No.
PU: But I mean I can’t promise you anything and they…
MS: No.
PU: They do what they do over there.[^37]

[39] The second alleged inducement is as follows:

PU: So you know why I’m here for?
MS: (inaudible)
PU: I’m here….
MS: I know, I know what you’re here for.
PU: I’m here, and it’s not always a good idea to say don’t talk to the police if you haven’t done [this] then your side of the story is very important as well.
MS: I know.
PU: There’s not anybody there can corroborate. These things happen behind closed doors. So it’s who I believe.
MS: OK
PU: And like I said this interview I had with [the complainant] was very profound.[^38]

[40] Additionally, Defence points to a statement made by Sgt. Webster as another veiled inducement. He says: “And this is your opportunity to come clean and say what happened. Now is the time that you can come clean.”[^39] Statements such as this can effectively undermine counsel’s advice by suggesting that the only point in time when the accused can tell his side of the story is during the police interview. Of course, that suggestion is wrong in law which underlines the danger of these statements. However, in this case – dangerous as the suggestion is – it comes within seconds of the end of the interview and I find that it had no impact on the interview.

[41] The first exchange does contain the clear suggestion that Det. Urquhart can influence the outcome of the show cause hearing if she is satisfied that Mr. Slater is not a danger to children. However, the effect of the inducement is significantly mitigated by the fact that Det. Urquhart reiterates several times during the exchange that she can make no promises and the final decision is made by other people.

[42] The second exchange contains the implicit suggestion that something might change depending on who the investigator believes. It is not a strong inducement, but it is an inducement.

[43] There are other occasions during the first interview where both investigators make suggestions that the accused should tell the truth or that he would feel better if he told his story. As noted earlier, such statements are acceptable persuasive techniques.

[44] As part of this assessment, it is important to note that Mr. Slater did not in fact confess to anything. He consistently and adamantly denied any wrongdoing. At most, he confirmed some peripheral matters, such as the fact that he taught the complainant, he was living in the barracks in 1968, his in-laws lived on Alta Vista Drive, the complainant went to that house (although only when he was 18-years-old), the complainant was frequently sick and may have had a liver disorder, the complainant lived with him and his wife for a short period of time, the complainant might have seen him naked, in 1968-69 the students all came from military families, and finally, that he and his wife lived in an apartment on Meadowlands Drive.

[45] In addition, Mr. Slater acknowledges the interviewer’s tactics and indicates that he is not going to fall for them.[^40] On two occasions, he jokes or laughs with the interviewer,[^41] and on one occasion indicates “if I’m gunna say something I don’t give a shit what the lawyer says, I’m gunna say it.”[^42]

[46] Ultimately, the issue to be determined is whether in all the circumstances noted above and in particular taking into consideration the following factors – the occasions where the investigator sought to undermine Mr. Slater’s relationship with his counsel, the repeated ignoring of Mr. Slater’s assertion of his right to silence, and the inducements – raise a reasonable doubt about whether Mr. Slater’s choice to speak to police was a meaningful one.

[47] In the circumstances of this case, I conclude that although there are some concerns with respect to the conduct of the interview, there is no nexus between that conduct and Mr. Slater’s decision to talk to the police. It is apparent on the record that he decided when he would speak and what he would speak about. He remained silent, despite the pressure placed on him by the investigators, on the subject of the charges and rejected any suggestion of wrong-doing. Consequently, this statement is voluntary and the product of a free and meaningful choice by Mr. Slater. Accordingly, this statement is admissible.

Threats/Inducements – Second Interview

[48] Defence raises a number of similar concerns with respect to the second statement. Once again, Mr. Slater made numerous assertions that he did not want to speak to police and the assertions were ignored. In this interview, which lasted 2 hours and 15 minutes, Mr. Slater made 27 assertions of a lack of desire to talk to police. Det. Urquhart took the same approach as during the first interview and simply ignored the assertions.

[49] In the second interview, Defence counsel contends that there are serious examples of attempts to undermine counsel’s advice, a number of significant inducements or threats, and attempts to persuade the accused that his only chance to speak is during the interview. I agree that the examples listed below raise concerns.

[50] Det. Urquhart used a number of different techniques to undermine counsel’s advice. Specifically she suggested that:

• there were exceptions to the general rule that an accused ought not to speak to the police;[^43]

• it was not always in the suspect’s best interests not to talk;[^44]

• his lawyer would not let him tell his story in court;[^45] and

• his lawyer told him not to talk to police, but people do it all the time.

[51] Det. Urquhart indicated on several occasions that the interview was Mr. Slater’s only chance to tell his story.[^46] As well, she made several statements that qualify as inducements:

M.S. I’d like to go back to my cell.
P.U. I want to know how you’re feeling.
M.S. I can sit here all morning.
P.U. Are you angry? Like I said, I need...I want something from you. I’m not going to leave this room until I know how you’re feeling. If you have no regard at all for any of this, then that goes in my report...to say we could have some more victims...in the future...if it’s something that stopped many years ago, we don’t have to worry anymore, is it because of alcohol? Did you quit drinking before retirement or after? That’s not going to affect anything, answering that question.

[52] The next statement is as follows:

M.S. I don’t want to talk to you.
P.U. You don’t want to talk to me? You don’t want to tell me that you feel something for these victims? Do you feel anything for these victims? That is important to me. Obviously you don’t care. People do something wrong, they try and correct it to make things right. Have you taken any steps to make things right? Other than the things that you’re forced to do? You, yourself? If I get up and leave right now, my thoughts, wow...he doesn’t...he doesn’t get it, he doesn’t care. I’ve got to worry about kids still now. In the back of my mind I thought all that sexual stuff happened because you were drunk and it was along with the alcohol. I don’t have to worry about kids anymore. But now, what I’m getting, you don’t care. You don’t get it. Do I have to call the O.P.P. to find out if there’s any kids living near you? Nothing you want to say to me? Nothing at all? You said it’s gonna come out in court. You’re gonna take the stand in court? You’re lawyer’s not going to allow you to do that. This is your opportunity. I’ll let you think about that and I’ll go speak to my partner.

[53] The above segment is particularly aggravating given that it is an inducement combined with an effort to undermine Mr. Slater’s relationship with his counsel. The next statement involves the implicit threat that if Mr. Slater did not talk, he might not be sent to a show cause hearing that day:

P.U. Okay. We’re cutting it close to the time of the Show Cause but, like I said, I don’t like giving up. I don’t like giving up. The time right now is 11:47 and the file has to be in...in ten minutes but I don’t want to give up.

M.S. Give up what?

P.U. Everything that I’ve been saying.

[54] In addition, Defence counsel pointed to a number of other areas that she argued undermined the solicitor/client relationship or constituted threats or inducements.[^47] However, I do not agree. Either the statements could not have impacted on Mr. Slater’s relationship with his counsel or, in the case of the alleged threats/inducements, the element of quid pro quo was absent.

[55] As with the first statement, there are moments in the interview when Mr. Slater joked with Det. Urquhart or indicated that he understood her role in the interview process.[^48] Once again, however, Mr. Slater did not confess and only spoke of peripheral matters. In my view, the tactics used by Det. Urquhart in the second statement are similar to those used in the first statement. Although Det. Urquhart made statements that qualify as inducements, in the context of this interview, those inducements did not lead to a situation where Mr. Slater lost the ability to decide freely whether to speak. The errors made by Det. Urquhart during the course of the interview did not ultimately have any impact on Mr. Slater. He continued to decide when to speak and on what subjects. As with the first statement, there is no connection between the police behaviour and Mr. Slater’s decision to speak to police. He controlled the agenda. Consequently, the Crown has proven beyond a reasonable doubt that the statement is voluntary.

[56] Accordingly, this statement is also voluntary and will be admitted.

Madam Justice Julianne A. Parfett

Released: March 10, 2014