ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Kerry Watson, for the Crown
- and -
BRADLEY BOOLS
Jack McCulligh, for the Defendant
Defendant
HEARD: September 23-24, 2014
RULING
[1] The Crown seeks to enter as evidence the video taped statement of the defendant, Bradley Bools, taken on the morning of his arrest. A Voir Dire was held to determine the voluntariness of the statement.
FACTS
Behaviour by the Police
[2] Evidence was given by three of the officers who were involved in Mr. Bools’ arrest that morning. The video statement was played and made an exhibit on the Voir Dire. Mr. Bools testified, as did his mother, Susan Bools.
[3] Mr. Bools agreed that no officer threatened him to make a statement, made him any promises if he made a statement, or induced him to make a statement.
[4] He agreed that he had been cautioned that he did not have to make a statement and if he did, it could be used against him. He confirmed that the police arranged for him to speak privately on the phone to duty counsel and he did so. He knew he was arrested for possession of images on his computer.
[5] Mr. Bools agreed that the video taped statement is an accurate tape of what was said in that room.
[6] He believed that the video statement also included his comment that he asked if he could stay in that room. The video was replayed and there was no such statement. Mr. Bools testified that he did ask if he could stay in that room. He said he was willing to give the statement because he did not want to return to the cold cells. Mr. Bools conceded that he did not mention the cold, request a blanket, or ask if he could remain in that room and not give a statement. He explained that he did not think they would agree.
[7] The evidence of the officers is that Mr. Bools had been brought to the station at 7:32 a.m. to be booked in and placed in the cells. The video taped statement begins at 10:45 a.m., a little more than three hours later.
[8] A review of the video statement itself showed a very cooperative exchange of information between Constable Ullock and Mr. Bools. The officer was calm and asked respectful, and largely open-ended questions. Mr. Bools did not make any remark of being physically uncomfortable nor did he appear so.
Operating Mind
[9] Mr. Bools testified that he has been on a disability pension due to depression for a number of years. Since at least 2009 (two years before his arrest) he has been taking medications, Clonazepam and Cymbalta. At times he takes six to eight pills at a time.
[10] Mr. Bools testified on the voir dire that in the early morning, before his arrest, around 2:45 a.m., he took 12 pills of both Clonazepam and of Cymbalta. He stated that the Cymbalta leaves him excited and the Clonazepam makes him confused. He went to sleep at around 3:30 a.m. and was awakened when the police arrived around 7:00 a.m. He testified that he was really tired and really confused by the Clonazepam medication when he gave the statement to Constable Ullock later that morning. As a result he said some of the answers he gave were incorrect.
[11] In the videotaped statement, Mr. Bools was asked if he had had any alcohol or drugs in the previous 24 hours. He replied no.
[12] He appeared alert and composed and answered the questions without hesitation, although, at times, he mumbled or spoke very quietly. When the officer left the room he put his head down in his crossed arms on the table for a time. When the officer returned he sat up again appropriately and continued to respond as expected.
[13] The defendant’s mother, Susan Bools, testified that at times she had known her son to overdose on his medication. She knows when he has done so, because he does not walk properly or speak properly and sounds confused. She agreed he would appear like someone intoxicated or who had vertigo. He would take time to respond to questions and some of his words would be garbled.
[14] The video taped statement does not show any signs as described by Mrs. Bools, nor were any of the officers asked about such a condition.
The Law
[15] In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the Supreme Court of Canada stated : ….
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….. 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. (at para 68)
[16] The Supreme Court is clear that,
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 rules discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one’s nose and warmer 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. (at para. 71)
[17] The Supreme Court considered the requisite degree of mental competence required to make voluntary statements in R. v. Whittle 1994 55 (SCC), [1994] 2 S.C.R. 914:
The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused. (at para 49)
Positions of the Parties
[18] The Crown argued that, looking at all the circumstances, there can be no doubt that the statement was voluntary and reliable. There were no threats, promises or inducements that would suggest the defendant’s will was overborne. As well, they argue that Mr. Bools had the requisite degree of mental competence, as demonstrated in the video taped statement itself.
[19] Defence counsel referred to two cases where statements were held to be inadmissible where the Crown had not called all the officers with whom the accused had been in contact at all the relevant times. (see R. v. Woodward 1975 1471 (ON CA), [1975] O.J. No. 91, 23 C.C.C. (2nd) 508, para. 5 and R. v. Dehaney, (unreported) April 10, 2013, O.C.J., Justice W. B. Stead.
[20] Defence counsel was critical that the staff sergeant and cells sergeant were not called to testify regarding their interactions with the defendant and their questions regarding any possible medical conditions.
[21] Mr. Bools, however, testified that no officer made any threats, inducements or promises to him. He had no recollection of his dealings with the officers in the cells. Nevertheless, he agreed that if a threat, inducement or promise had been made by an officer in the cells, he would have remembered it.
[22] I find that in these circumstances it was not necessary to call these other officers. There is no evidence that these officers had had any meaningful contact with Mr. Bools. In fact, Mr. Bools’ own testimony provides evidence that any contact he may have had with these officers was not relevant to the voluntariness inquiry because he would have remembered any threat, inducement or promise made and he does not.
[23] The jurisprudence makes it clear that the Crown is not required to produce every officer that had any form of contact with the accused: R. v. S. (R.J.), 1996 NSCA 201 at para 76 per Hallett J.A.,110 C.C.C. (3d) 535 , (leave to appeal refused [1997] 2 S.C.R. xv (S.C.C.)), R. v. Genaille (1997), 1997 4333 (MB CA), 116 C.C.C. (3d) 459 (Man. C.A.) at 463-6 per Helper J.A. (leave to appeal refused [1997] 3 S.C.R. ix (S.C.C.)), R. v. Settee (1974), 1974 971 (SK CA), 22 C.C.C. (2d) 193 (Sask. C.A.) at 206-7 per Culliton C.J.S. The focus of the inquiry is on meaningful contact that the accused had with a person in authority.
[24] In R. v. Mendezes, 2001 28426 (ON SC), [2001] O.J. No. 3758 (Ont. S.C.J.) Justice Hill found that:
The facts here are a far cry from the circumstances in a case like R. v. Woodward (1975), 1975 1471 (ON CA), 23 C.C.C. (2d) 508 (Ont. C.A.) where the prosecution failed to call persons in authority who had contact at all relevant times with an accused between his arrest and the making of a statement. There is no absolute rule that every person in authority irrespective of the degree of contact with the accused need be called on a confessional voir dire. Each case turns on its own facts. A flexible rule designed to examine the role of any police officer with real investigatory or custodial contact generally promotes meaningful scrutiny of relevant governmental conduct (at para. 19).
[25] I find that there is no evidence on the record indicating that any contact the accused may have had with the officers in question was meaningful. The evidence on the record points to the contrary. The Crown was not required to call the officers in question.
Analysis of the Police Behaviour
[26] I am satisfied that Mr. Bools was not mistreated in this case and was not offered any inducements strong enough to raise a reasonable doubt as to the voluntariness of his statement. Mr. Bools may have been cold in the cells below but I cannot make a connection with that comment with his behaviour and demeanor in the interrogation room, particularly when he made no complaint of the cold to any officer.
Analysis of “Operating Mind”
[27] Mr. Bools testified that he understood the caution that the evidence could be used against him.
[28] On a careful review of the video tape statement I am satisfied beyond a reasonable doubt that his cognitive capacity was not impaired and that he was capable of communicating sensibly with the officer. He behaved appropriately in the questioning. He occasionally asked for clarification of some questions and then answered sensibly.
[29] Accordingly, I am satisfied beyond a reasonable doubt that the videotaped statement was voluntary and that the defendant had a sufficient cognitive capacity to understand what he was saying. I find the statement to be admissible in evidence.
M. J. Donohue, J.
DATE: September 26, 2014
COURT FILE NO.: CR-12-2228-00
DATE: 2014-09-26
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: R. v. Bools
BEFORE: M.J. Donohue, J.
COUNSEL: Kerry Watson, for the Crown
Jack McCulligh, for the Defendant
RULING
M.J. Donohue, J.
DATE: September 26, 2014