COURT FILE AND PARTIES

COURT FILE NO.: 12-5042

DATE: 2014/04/24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

M. S.

Applicant

Marie Dufort, for the Respondent Crown

Anne London Weinstein, for the Applicant

HEARD: March 31, April 1-4, 2014

RULING ON VOIR DIRE REGARDING ADMISSIBILITY
OF VIDEOTAPEd statement

M. LINHARES DE SOUSA J.

INTRODUCTION

1Counsel for the Crown seeks to admit in evidence a videotaped statement made by the accused, M. S., to two police detectives, Detectives Webster and Chevalier shortly after his arrest on a number of the charges before the court on May 9, 2011.

2Counsel for the Defence contests the Crown application on two grounds. The issues raised by her and which this Court must decide are, firstly, the question of the voluntariness of the videotaped statement made by Mr. S. to the two detectives.

3Secondly, Defence counsel also brings an application submitting that, in the event the court finds the videotaped statement voluntary, the videotaped statement should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 [the “Charter”] on the grounds that the statement was taken in breach of Mr. S.’s section 10(b) right to counsel.

FACTUAL BACKGROUND

4Detectives Webster and Chevalier were each investigating different cases relating to four of the complainants on some of the charges before the court. As a result, on May 9, 2011 at approximately 2:00 p.m., Mr. S. voluntarily presented himself at the Ottawa police station, after police had spoken to his lawyer. He was arrested and has been in custody since that time.

5It was not contested that upon his arrest, Mr. S. was properly cautioned and given his rights to counsel as well as given the opportunity to speak to his counsel. Because of the concurrent police investigations going on relating to the four complainants, Detectives Webster and Chevalier decided to jointly interview Mr. S. as part of the continuing investigation of their respective cases.

6On May 9, 2011, at approximately 7:15 p.m., some five hours after his arrest, the videotaped interview between Mr. S. and the two detectives began. The period of delay between Mr. S.’s arrest and the time when the police interview began had to do with Detective Chevalier’s work commitment.

7The interview lasted from approximately 7:15 p.m. on May 9, 2011, until 1:47 a.m. on May 10, 2011, a duration of approximately six and one-half hours.

8A copy of the videotaped interview and a transcript of the interview were filed as exhibits 1-1, and 1-2 respectively on the Voir Dire. The transcript was 372 pages.

9The completion of the police investigation resulted in further charges being laid against Mr. S. involving a total of seven complainants. On the Information before the Court Mr. S. now faces 21 charges, including sexual assault, forcible confinement, mischief to property, theft, intimidation, criminal harassment and failure to comply.

10It can be noted here that in the course of the videotaped interview Mr. S., numerous time made exculpatory statements regarding the sexual assault and other charges he was facing. Nonetheless, there were statements made by him in the course of the interview, relating to the nature of his contact with different complainants and his knowledge, use and disposition of cell phones, for example, that could be considered admissions against his interest, and which might be viewed as evidence prejudicial to him. At no point in the interview did Mr. S. ever confess to the charges of sexual assault. In fact, all of his statements in this regard were exculpatory.

DEFENCE POSITION

11Counsel for the Defence argues that the videotaped statement demonstrates a pattern of police conduct and interrogation techniques that raises a reasonable doubt about the voluntariness of the declarations made by Mr. S. in the course of the police interview.

12Specifically, Defence counsel argues that the police made quid pro quo inducements to Mr. S. and evoked fears of prejudice on his part in their attempts to get him to confess to the charges he was facing. This, in the face of Mr. S.’s continual assertions that he did not want to incriminate himself, that he was told by his lawyer to not say anything and that he wanted to speak to his counsel or that he wanted his counsel present for the interview.

13Furthermore, Defence counsel submits that the police interview was conducted against a backdrop of oppressive circumstances which also raise a reasonable doubt about the voluntariness of Mr. S.’s various statements during the interview. This included a very long interview lasting almost seven hours with the police officers repeatedly invading his personal space, forcing him to sit down, pointing at him and waving their arms and hands close to his face and refusing to let him leave when he asked to do so. They also made him wait over two hours after he had requested to go to the washroom. Defence counsel submits that the two police officers, using the personal information they had on Mr. S., berated and insulted her client during the course of the interview in their attempts to get him to confess to the charges under investigation.

14Defence counsel further submits that even if the statement is found to be voluntary by the Court, Mr. S.’s concern or fear of losing his lawyer due to the blood on the mattress evidence was also exploited by the police so that it could have the effect of undermining Mr. S.’s confidence in his relationship with his lawyer. Defence counsel submits that this amounted to a breach of Mr. S.’s section 10(b) right to counsel under the Charter.

15If such a breach is found by the court, Defence counsel submits, the videotaped statement should be excluded pursuant to the three-pronged test set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the least of which is that the Crown’s case against Mr. S. is not solely based on his videotaped statement to Detectives Webster and Chevalier.

CROWN POSITION

16Counsel for the Crown concedes that the police interview was a long one and one conducted by two very experienced police officers employing a variety of well-known interviewing and interrogation techniques to obtain information from Mr. S. However, she submits, that police officers have a right to investigate and solve crimes balanced with the accused’s legal rights to remain silent. It is Crown counsel’s submissions that the two interviewing police officers did not, at any time during the interview, take away Mr. S.’s right to choose not to speak.

17The police techniques used by Detectives Webster and Chevalier would not shock the community, she submits. Crown counsel submits than many of the interviewing techniques used by the detectives have been held to be acceptable by the courts.

18More importantly, it was the submission of Crown counsel, that Mr. S. did make certain statements during the course of the interview which could be considered prejudicial to him. But, she argues, those statements were not made as a result of the police conduct. In other words there was no nexus between the police conduct and the statements made by Mr. S. He willingly and actively participated in the interview.

19Counsel for the Crown submits that Mr. S. was in complete command of what he chose to share with the police officers. In fact, he did not confess to any of the charges and maintained throughout that the officers did not have sufficient evidence to support the charges. Mr. S. on his own initiative engaged and encouraged the officers to discuss the evidence they had against him. He displayed his responses by laughing at the officers a number of times. He was at times disrespectful to the officers.

20Counsel for the Crown submits that the examination of the total context of the interview, including Mr. S.’s responses, does not lead one to the conclusion that the interview was oppressive to Mr. S. nor calculated to overcoming his free will and thus rendering his statement involuntary.

21With respect to the Defence counsel’s submission that the police interview breached Mr. S.’s section 10(b) rights by undermining his confidence in his lawyer, Crown counsel submits that this is negated by the fact that Mr. S. himself is the one who first brought up this issue. Furthermore, when the officers continued this topic of discussion raised by Mr. S., later in the interview, it was not with the intention of undermining Mr. S.’s relationship with his counsel. It did not in any way affect how Mr. S. responded to the police thereafter and would not bring the administration of justice into disrepute.

22In the alternative, Crown counsel argues that even if the interviewing officers may have crossed the line to an unacceptable level at this point in the interview, the Court should consider excluding those parts of the interview which may have come after the unacceptable point and declaring the parts of the interview preceding the unacceptable point to be admissible.

23I agree with the position of Crown Counsel on this point. Courts have admitted portions of statements which are found to be voluntarily given and excluded those portions which were found to be tainted by the conduct of the interview.

JURISPRUDENCE

24Counsel did not disagree on the guiding jurisprudence that governs the decision of this Court on the issue of voluntariness. It is accepted that the question of whether or not a statement of the accused made to a person in authority, such as a police officer, is voluntary or not is a question of fact, or of mixed fact and law that must be proven by the Crown beyond a reasonable doubt.

25In the decision of R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the Supreme Court of Canada took the opportunity to set out the “proper scope of the confessions rule” especially in the context of the “introduction of the Canadian Charter of Rights and Freedoms”: (para. 25)

26The Supreme Court recognized that there had been a development of the confessions rule beyond the “negative right” given to the accused, “a negative right -- the right not to be tortured or coerced into the making a statement by threats or promises held out by a person who is and whom he subjectively believes to be a person in authority” first established in the early case of Ibrahim v. The King, [1914] A.C. 599 (P.C.).

27There was also a recognition in the case law of a much broader approach to the question of voluntariness that might render a statement involuntary, even in the absence of violence, threats and promises by the authorities if the necessary mental element of deciding between giving a statement or not giving a statement was not present. This could be due to the absence of an “operating mind” for whatever reason or caused by the “coercive effect of an “atmosphere of oppression.”

28The Supreme Court concluded at para. 27 that, “[c]learly, the confessions rule embraces more than the narrow Ibrahim formulation; instead, it is concerned with voluntariness, broadly understood.”

29With respect to the issue of the scope of the common law rule of confessions in light of the Charter, it unequivocally determined that the Charter did not subsume the common law rule of confessions. The Supreme Court states at paras. 30-31 of R. v. Oickle, supra, as follows:

30But I do not believe that this view is correct, for several reasons. First, the confessions rule has a broader scope than the Charter. For example, the protections of s. 10 only apply "on arrest or detention". By contrast, the confessions rule applies whenever a person in authority questions a suspect. Second, the Charter applies a different burden and standard of proof from that under the confessions rule. Under the former, the burden is on the accused to show, on a balance of probabilities, a violation of constitutional rights. Under the latter, the burden is on the prosecution to show beyond a reasonable doubt that the confession was voluntary. Finally, the remedies are different. The Charter excludes evidence obtained in violation of its provisions under s. 24(2) only if admitting the evidence would bring the administration of justice into disrepute: see R. v. Stillman, 1997 SCC, [1997] 1 S.C.R. 607, R. v. Collins, 1987 SCC, [1987] 1 S.C.R. 265, and the related jurisprudence. By contrast, a violation of the confessions rule always warrants exclusion.

31These various differences illustrate that the Charter is not an exhaustive catalogue of rights. Instead, it represents a bare minimum below which the law must not fall. A necessary corollary of this statement is that the law, whether by statute or common law, can offer protections beyond those guaranteed by the Charter. The common law confessions rule is one such doctrine, and it would be a mistake to confuse it with the protections given by the Charter. While obviously it may be appropriate, as in Hebert, supra, to interpret one in light of the other, it would be a mistake to assume one subsumes the other entirely.

30In light of the above the Supreme Court went on to restate the confessions rule, keeping in mind “its twin goal of protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes”: (para. 33). The application of the confessions rule, the Supreme Court stated “will by necessity be contextual,” given the variety of circumstances that may exist that may touch on the voluntariness of a confession. Trial judges were directed to “consider all of the relevant factors when reviewing a confession”: (para. 47).

31In particular, the Supreme Court identified a number of factors to consider in the context of the specific circumstances of each case in determining the question of the voluntariness of a statement made by the accused. These were:

(a) Threats, promises or inducements whether explicitly, implicitly or subtly. Inducements, a quid pro quo factor, can be such things as the possibility of procuring a reduced charge or sentence held out by a police officer to an accused in exchange for a confession, or based on the exploitation of the accused’s relationship with another individual. Promises or threats can also come in the form of words such as “it would be better” to tell being put to the accused and such words in fact induce the accused to speak. At para. 57 the Supreme Court succinctly summarizes its discussion of this factor in the following way:

“57 In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212, particularly apt:

Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.

The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.”

(b) Oppression. This includes the following circumstances, questioning an accused under inhumane conditions such as depriving him or her of food, clothing, water, sleep or medical attention; denying access to counsel; and excessively aggressive intimidating questioning for a prolonged period of time; the use of non-existent evidence: (para. 61).

(c) Operating mind. This requires simply that the accused is aware and knows what he is saying and that he is saying it to the police who can use the information to his detriment: (para. 63).

(d) Other police trickery. This is aimed at curtailing police conduct that would shock the community or bring the criminal justice system into disrepute.

32At paras. 68-69 and 71 the Supreme Court summarizes its restatement of the current confessions rule in the following way:

68 While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all, because of the criminal justice system's overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision.

69 The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.'s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness "that focuses on the protection of the accused's rights and fairness in the criminal process": J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.

71 Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an "inducement" as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, 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. Therefore a relatively minor inducement, such as a tissue to wipe one's nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, supra. On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for "some palpable and overriding error which affected [the trial judge's] assessment of the facts": Schwartz v. Canada, 1996 SCC, [1996] 1 S.C.R. 254, at p. 279 (quoting Stein v. The Ship "Kathy K", 1975 SCC, [1976] 2 S.C.R. 802, at p. 808) (emphasis in Schwartz).

33A very clear and lucid description of the legal test of voluntariness is found at page 321 of the book by David Paciocco and Lee Stuesser, The Law of Evidence, 5th ed. (Toronto: Irwin Law Inc., 2008):

[In] order for most statements made to a person in authority to be admissible the Crown must establish beyond a reasonable doubt in light of all the circumstances that the will of the accused to choose whether to speak has not been overborne by inducements, oppressive circumstances, or the lack of operating mind. In addition, there must not be police trickery that unfairly denies the accused’s right to silence.

34It is conceded by Defence Counsel that the only two factors in issue in this case and on which she basis her submissions on the involuntariness of Mr. S.’s statements, concerns the first two factors, quid quo pro inducements made to her client by the police officers in a backdrop of a very oppressive interview.

APPLICATION TO THE FACTS OF THIS CASE

ISSUE OF VOLUNTARINESS

OPPRESSION

35The first issue I intend to deal with is the question of the police interview being in a backdrop of oppression. Was Mr. S. subjected to an oppressive police interview so as to render his various statements to Detectives Webster and Chevalier involuntary?

36On the evidence, the police interview of Mr. S. following his arrest on May 9, 2011, can be described as difficult and harsh and a challenging one for Mr. S. The duration of the interview, approximately six and one-half hours, beginning in the early evening and extending into the early hours of the next day was a long one. Mr. S. was not interviewed by just one detective but by two, who were both seasoned police investigators.

37Detective Webster’s explanation regarding why the two police detectives jointly participated in the interview was reasonable in the circumstances of their separate and joint investigations rather than just merely tactical.

38There was some suggestion on the evidence that Mr. S., during the course of the long police interview, might have been deprived of food and the opportunity to go to the washroom upon request. The evidence relating to the meal routine at the police station lock up strongly suggests that Mr. S. would have been fed his supper prior to the commencement of the interview.

39When Mr. S. asked for water during the interview with Detective Chevalier, he was given water immediately.

40A number of times during the interview Mr. S. requested that the officers get him some food (pp. 191-192 of the transcript). Mr. S. even suggested two times that the police should get him food because he had cooperated or that he would then talk with them (pp. 261 and 276 of the transcript). The officers replied each time that they could not do that because it might appear that they were offering him something in return for his statement or cooperation.

41Just prior to the break in the interview, Mr. S. asked to go to the washroom (p.150 of the transcript). The officers asked him to wait a few moments until they returned. When they returned after the short break, they immediately recommenced the questioning and Mr. S. himself did not again raise the issue of his need to go to the washroom until approximately two hours later (p. 220 of the transcript). When he did again raise the issue, the interview was immediately halted and Mr. S. was permitted to go to the washroom.

42When Detective Webster was questioned about this delay in permitting Mr. S. to go to the washroom, his evidence was that he genuinely forgot about his request upon returning to the interview room. He denied creating the delay to be mean. When Mr. S. raised it again he immediately accommodated him.

43From this evidence I cannot conclude that Mr. S. was physically maltreated during the course of his interview. With respect to this aspect of the police interview in question the circumstances in this case are very distinguishable from the inhumane conditions of the police interview found in the case of R. v. Hoilett (1999), 1999 3740 (ON CA), 136 C.C. C. (3d) 449 and for which the Ontario Court of Appeal declared the accused’s statement to be involuntary.

44Despite the absence of specific physical maltreatment of Mr. S. the Court must still consider the issue of whether the interview was oppressive based on the questioning, at times quite aggressively, of Mr. S. for a prolonged period of time. In other words, would that aspect of the interview have overborne Mr. S.’s will to choose to speak to the officers or not during the course of the police interview?

45As the accepted jurisprudence directs, the Court must examine the entire circumstances surrounding the statement, including the particular accused person, in answering this question. Given his age and the little evidence presented on the Voir Dire concerning Mr. S.’s background, it is evident that he may not have had the education nor the work experience of the two seasoned police officers questioning him that evening. Nonetheless, it was the view of Detective Chevalier that Mr. S. was an intelligent man who during the interview played the game of “cat and mouse” with his two interrogators. It was also the view of Detective Webster that throughout the interview Mr. S. was actively, willingly and purposely engaging in discussions with the two officers so as to find out what quality of evidence the officers had against him.

46After viewing the videotaped recording and listening to it a number of times, I must agree with the opinions of the two officers. This conclusion is with the full acceptance that Mr. S. had every right to interact with the two officers to find out what evidence the police had collected during the course of their investigation. It was clear from Mr. S.’s responses, demeanor and conduct during the interview that, firstly, he was no stranger to the criminal justice system.

47Secondly, throughout the interview Mr. S. was fully aware of his right not to speak. He repeated a number of times that he did not want to speak; that his lawyer had told him not to speak and that he wanted his lawyer there; and, that he did not want to incriminate himself (pp. 180-181,187, 193, 221, 229, 231, 234, 243, 262, 279, 301, 305, 316, and 318 of the transcript). A few times Mr. S. asked to leave the room and go back to his cell (pp. 155, 184, 191,198, and 220 of the transcript).

48Nonetheless, Mr. S. continued to talk to the police officers. In fact, frequently, he actively engaged the two detectives in speaking to him about the evidence they had against him. He told them that he was curious in knowing what evidence they had against him. He at times, depending on how the discussion was going, chose to speak to one detective instead of the other (pp. 7, 31-32, 50, 59, 65, 93, 96, 112, 193, 221, and 312 of the transcript). Mr. S. even brought Detective Chevalier back to discussing the police investigation when the detective diverged slightly in the conversation and began to talk about Mr. S.’s children (p. 96 of the transcript).

49I can only conclude from this that he was well aware of the consequences of any decision he made to respond to the questions put to him by the police officers. Furthermore, it is accepted that even though an accused person may state to police officers that he wishes to remain silent, the officers may continue to question the accused person in the investigation of their case. This is what they did with Mr. S.’s active participation.

50Mr. S.’s interaction with the police officers and responses to their questions, at the beginning of the interview, were what one could characterize as subdued and polite. As time went on, it is clear, that Mr. S. appeared more comfortable and relaxed with the situation, even at times becoming convivial with the officers. For example, when Detective Chevalier left the room to get Mr. S. some water, Mr. S. began to speak to Detective Webster about Detective Webster’s picture and the bags under his eyes and the stress the detective must experience in his work.

51Mr. S. engaged the officers in light bantering at different times during the interview, returning to the subject of Detective Webster’s baggy eyes, telling the two police officers to get a life and go home, how one of them was a nice guy and the other an “asshole”, how one of them catches on quickly and the other one was dangerous and getting places, how he was playing games with them or playing with them in their game (pp. 100, 119, 120, 158, 203, and 266 of the transcript).

52With respect to the confrontations of the evidence collected by them from the various complainants, which the officers put to Mr. S. relentlessly, Mr. S.’s frequent early responses were that he knew nothing of what they were saying, or had no memory of the things they were saying. He willingly provided suggestions of alternate explanations.

53It was evident that Mr. S. had some understanding of the significance of the police evidence to the potential success of the prosecution’s case. I must also conclude that, consistent with the views of the two detectives, Mr. S. was a willing participant in the discussions and actively encouraged the detectives to discuss what evidence the police had against him. In his own words Mr. S. indicated to the officers, I am curious as to what evidence you have against me. At times he even expressed his views of the proffered evidence through laughter. A constant comment made Mr. S. from almost the beginning of the interview to the very end of the interview was that the police did not have sufficient evidence to support the alleged charges (pp. 119, 124, 135, 139, 142, 146, 148, 150, 302, 306, 309, and 356 of the transcript).

54There is no question that the police used various techniques to get Mr. S. to speak to them even over his protests that he did not want to say anything, as was their duty to do so. As brought out in the evidence, those techniques were used to establish a rapport with Mr. S., and to play on his emotions and psychological weaknesses so as to get him to talk. Mr. S. was so challenged by the two detectives.

55At times the police’s questions and comments put to Mr. S. were nothing less than hard-hearted. I refer here to the police references to his difficult background and childhood abuse and the quality of his relationship with his daughter.

56At other times there were frequent suggestive and incriminating questions put to him. Mr. S. was frequently asked to respond and to give his version of potentially incriminating evidence. The detectives blatantly, frankly and harshly put their theories of the police case to him, referring to him as “a sexual predator” and comparing him to “Russell Williams”.

57Towards the middle of the interview, the officers did not hesitate to strongly express their views that they believed Mr. S. committed the crimes they were investigating and what their negative opinions of him were, as a result, such as “pathetic”, “devious” and “sexual pervert.” In their attempts to increase the pressure on Mr. S. they at times interrupted him and spoke over him. Detective Webster refused to let Mr. S. stand up when he protested and wanted to leave the interview room. The detectives persuaded him to remain in the interview room when he indicated a second time that he wished to return to his cell.

58At different intervals during the interview, the detectives sat quite close to Mr. S., to the point that for a brief interval when the discussion between Detective Webster and Mr. S. became quite heated, Mr. S. was positioned into the corner of the room. Detective Webster acknowledged that this was done purposely so as to have Mr. S. focus on the fact that Detective Webster believed that he committed the crimes and to give him an opportunity to give a statement and to be truthful. Detective Webster testified that making the person being interviewed feel uncomfortable with this closeness was done in the hope of having the person provide statements.

59Based on the observations of Mr. S. and his responses to Detective Webster during this portion of the interview, these tactics did upset and animate Mr. S. Nevertheless, I cannot conclude from observing the interview as a whole that the above interview tactics used by the two detectives succeeded in overpowering Mr. S.’s will to choose whether to speak to the officers or not.

60In response to Detective Webster raising his voice, Mr. S. raised his voice. He told Detective Webster to stop yelling and screaming at him and told him to calm down. In response to Detective Webster’s expressions of opinion about his background and alleged conduct, Mr. S. expressed his own opinions of Detective Webster as being an “asshole” and referring to his “bullshit”. Mr. S. did not tolerate the closeness very long without requesting that Detective Webster get out “of his face” and to give him some space (p. 150 of the transcript) and was so accommodated by Detective Webster. Repeatedly, even during the stressful part of the exchange, Mr. S. kept saying, “you have lack of evidence”. He expressed his opinion about the difference in approach between Detective Webster and that of Detective Chevalier (p. 146, “…that’s a nice guy right there.”).

61During the short break that followed this episode, when Mr. S. was alone in the interview room he continued to make similar comments about the police’s lack of evidence, expressing if anything disgust and anger at the situation.

62In my view, Mr. S. was always in control of what information he shared with the two police detectives who were interviewing him. Mr. S. also seemed very aware, if only at an instinctive level, of some of the interviewing tactics being used by the police officers. Would the community be shocked by the conduct of the interview as a whole? I think not.

63In the decision of R. v. Menezes, 2001 O.T.C. 705, Hill J. indicated that an “assessment of voluntariness is essentially a fact driven exercise: (para. 39). At para. 38, Hill J. states the following:

38 Suggestive questions and confrontation with incriminating evidence relevant to the circumstances at hand, does not in itself create involuntariness: Oickle v. The Queen, supra at 365-6; Regina v. Sweezey (1974), 1974 1427 (ON CA), 20 C.C.C. (2d) 400 (Ont. C.A.) at 402, 419 per Martin J.A.; Regina v. Lessard (1982), 1982 3814 (QC CA), 10 C.C.C. (3d) 61 (Que. C.A.) at 73-5 per Bisson J.A.; Regina v. Brown (1995), 1995 NSCA 186, 102 C.C.C. (3d) 422 (N.S.C.A.) at 431, 436 per Chipman J.A.; Regina v. Schur, [1993] B.C.J. No. 960 (C.A.) at pages 14-15 per Cumming J.A. (leave to appeal refused [1993] S.C.C.A. No. 282). There is nothing per se untoward in advancing evidence, logic and argument in an effort to persuade the accused of the provability of his guilt and the futility of maintaining his innocence provided the questioning is not menacing, threatening or oppressive so as to overcome the arrestee's exercise of free choice whether to speak or not.

64For the above reasons, the many hours of suggestive questions, confrontations with incriminating evidence, rigorous, hard-hearted police statements and opinions about the Mr. S.’s alleged conduct and frivolity with how he was treating the allegations, arguments advanced by the two detectives about the obvious transparency of his many alternate explanations of the evidence and of the futility of maintaining his innocence in their efforts to persuade Mr. S. to speak, on the facts of this case, did not cross into the zone of the menacing, threatening or oppressive so as to overcome Mr. S.’s exercise of free choice about whether to speak or not. It certainly might have with another accused person, as happened in the case of R. v. Otis (2000), 151 C.C.C. (3d) 416, 2000 11367 and, no doubt, the police officers certainly ran that risk in the way they conducted this interview. Nonetheless, on the facts of this case, I cannot conclude that it did with Mr. S.

INDUCEMENTS

65In R. v. Oickle, supra, the Supreme Court clearly stated that any inducements or threats held out to an accused in return for a statement would be fatal to the reliability of a confession and hence its voluntariness and admissibility. The Court further pointed out that such inducements or threats could be either explicit or they could be more subtle and implicit. In either form, such inducements or threats could be capable of raising a reasonable doubt about the voluntariness of an accused’s statement to a person in authority. At paras. 53-55 of its decision in R. v. Oickle, supra, the Supreme Court stated the following:

53 The Ibrahim rule speaks not only of "hope of advantage", but also of "fear of prejudice". Obviously, any confession that is the product of outright violence is involuntary and unreliable, and therefore inadmissible. More common, and more challenging judicially, are the more subtle, veiled threats that can be used against suspects. The Honourable Fred Kaufman, in the third edition of The Admissibility of Confessions (1979), at p. 230, provides a useful starting point:

Threats come in all shapes and sizes. Among the most common are words to the effect that "it would be better" to tell, implying thereby that dire consequences might flow from a refusal to talk. Maule J. recognized this fact, and said that "there can be no doubt that such words, if spoken by a competent person, have been held to exclude a confession at least 500 times" (R. v. Garner (1848), 3 Cox C.C. 175, at p. 177).

Courts have accordingly excluded confessions made in response to police suggestions that it would be better if they confessed. See R. v. Desmeules, [1971 C