ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-30000 497-0000
DATE: 20140327
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.R.
Bob Fried, for the Applicant
Patrick Metzler, for the Respondent
HEARD: March 25 and 26, 2014
DUNNET J.: (Orally)
RULING ON ADMISSIBILITY OF ACCUSED’S STATEMENT
[1] The applicant seeks an order permitting the Crown to use a statement made by the respondent to police officers following his arrest.
[2] On March 27, 2012, Police Officers Ryan Gay and Joshua Koptie of the York Regional Police Department were asked to locate and arrest the respondent who was wanted by the Toronto Police Service for sexual assault and sexual exploitation.
[3] At 1:14 p.m. the officers attended the respondent’s workplace and Officer Koptie arrested the respondent in the boardroom.
[4] When he was advised of his right to counsel, the respondent said that he understood and that he did not wish to speak to a lawyer. He wanted to speak to his wife. He was cautioned and said that he understood the caution.
[5] Officer Koptie testified that while they were waiting for the arrival of police officers from the Toronto Police Service, the respondent repeatedly asked what the punishment was for sexual assault.
[6] After the respondent was turned over to the Toronto police officers, Officer Koptie recorded in his notebook:
Stood by for TPS units to attend for transport. [The respondent] repeatedly asked what punishment is for sex assault.
[7] Officer Kopkie acknowledged that it was a mistake on his part not to record the statement verbatim. He said that to the best of his recollection, those were the words used by the respondent on repeated occasions. He could not say how many times the question was asked.
[8] When it was suggested to the officer in cross-examination that the respondent was concerned about how his arrest on these charges was going to affect his job, he said, “That was not the impression I got.”
[9] Officer Koptie had an independent recollection that Officer Gay was present in the boardroom when the statement was made.
[10] Officer Gay testified that he did not hear the statement and he had no notation that Officer Kopkie told him about the statement. Officer Gay’s evidence was that while the respondent was being arrested, he was retrieving the respondent’s personal belongings from another room. He also left the boardroom “at one point” to meet the Toronto police officers when they arrived at the workplace.
[11] The respondent testified that on March 27, 2012, he was told by his supervisor about a meeting in the boardroom to discuss his new position. After he was seated in the boardroom, two uniformed police officers entered and arrested him for sexual assault and sexual interference. They applied hand restraints and advised him of his right to counsel.
[12] He did not recall the police giving him a 1-800 number to call for legal advice and he did not remember the caution.
[13] He testified that he asked why he was being arrested and what was going to happen to his job. He could not remember which question he asked first. He did recall that this was an important day in his life because he was arrested and he thought that he was going to lose his job. He denied that he said, “What is the punishment for sex assault?”
[14] Although he acknowledged that he did not make notes of his conversation with the police, his evidence was that he remembered exactly what he said.
[15] He testified that he was not expecting to see the police and when they appeared at his workplace, he was flustered and surprised. He asked Officer Gay to retrieve his personal belongings from his locker and the officer left the boardroom to do so.
[16] The respondent acknowledged that a few days before his arrest, the complainant’s mother confronted him and accused him of having acted in a sexually inappropriate way with the complainant. He agreed that the reason he did not ask the police for the name of the person who had alleged the sexual assault was because the complainant’s mother had already confronted him.
[17] Although he agreed that he wrote a letter to the complainant’s mother a few days before his arrest, he denied that it was a letter of apology for inappropriate sexual conduct and maintained that it was a suicide note arising out of a relationship he had with the complainant’s mother.
[18] The parties agree that there is no issue as to the voluntariness of the alleged statement. The applicant submits, relying on R. v. Park, 1981 56 (SCC), [1981] 2 S.C.R. 64, that there is some evidence from Officer Kopkie that the statement was made and whether or not the officer is to be believed and the weight to be given to the statement is a matter for the jury.
[19] It is submitted that the fact that the testimony of Officer Kopkie is contradicted by the respondent cannot affect the admissibility of the officer’s evidence and where there are conflicting versions of what was said by the accused, the jury is to decide which is to be believed.
[20] Park involved the admissibility of a statement the accused made to the police, without which his conviction could not stand. The issue on appeal to the Supreme Court of Canada was whether the accused could waive the holding of a voir dire and, if so, whether there was a proper waiver.
[21] The Court held that the accused had the right to waive the voir dire and made a proper waiver. The Court rejected the submission that, notwithstanding the admitted voluntariness of the statement, the trial judge was required to conduct a voir dire on whether the statement was, in fact, made because, by definition, the Crown had to have offered “some evidence” of the statement to give rise to the voluntariness question. “Once the issue of voluntariness is resolved, normal principles of evidence apply”: Park, at p. 77.
[22] The respondent’s position is that Park is not relevant to the present case. It is submitted that although voluntariness and the existence of some evidence that the statement was made are necessary, threshold reliability has not been proven and the prejudicial effect of admitting the statement is greater than any probative value.
[23] Given the respondent’s denial that the statement was made, the onus is on the applicant to satisfy the court as to its accuracy and reliability.
[24] Both of the police officers testified in a straightforward and forthright manner. Officer Kopkie had an independent recollection that Officer Gay was in the boardroom when the words were spoken, whereas Officer Gay had no recollection of hearing the statement, let alone hearing the statement being made repeatedly.
[25] Officer Kopkie recorded verbatim the respondent’s answers to the right to counsel and caution. He did not record the statement verbatim, or the time that the statement was made, or the number of times the statement was repeated. Aside from his notes, he did not have an independent recollection of what was said.
[26] He did not recall if the respondent spoke with an accent, although it was evident from his testimony on the voir dire that he speaks with an accent.
[27] The issue of admissibility must be assessed in the context of the proposed relevance.
[28] The applicant’s position is that the respondent’s desire to know the punishment for sexual assault is consistent with guilt. The respondent’s position is that he was in the boardroom for a meeting about his new position at work when he was arrested for something unrelated to his work and his immediate concern was the effect of his arrest on his ability to continue working.
[29] Even if the respondent used the words attributed to him by Officer Kopkie, the jury could speculate that he was innocent and wanted to know his jeopardy, or that he was guilty. By focusing on the statement, the jury’s reasoning would be rooted in speculation.
[30] In my view, the risk of speculation by the jury without sufficient context at the time the words were uttered would undermine the fairness of the trial. Moreover, it would be dangerous to put this evidence before the jury, particularly when the police had the opportunity to accurately record what was said and failed to do so.
[31] Therefore, the tenuous probative value in admitting the statement is outweighed by its prejudicial effect. The statement will be excluded from the jury’s consideration.
DUNNET J.
Released: March 27, 2014
COURT FILE NO.: CR-13-30000 497-0000
DATE: 20140327
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
R.R.
RULING ON ADMISSIBILITY OF ACCUSED’S STATEMENT
DUNNET J.
Released: March 27, 2014