COURT FILE NO.: CRIMJ (P) 2346/12
DATE: 2014 01 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
NICHELLE BOOTHE-ROWE and GARFIELD BOOTHE
Respondent
Counsel: Brian McGuire and Kelly Slate, for the Applicant Brian Ross, for the Respondent, Nichelle Boothe-Rowe John Rosen, for the Respondent, Garfield Boothe
HEARD: January 13, 14, 15, 16, 17, 2014
RULING No. 1: VOLUNTARINESS OF NICHELLE BOOTHE-ROWE’S STATEMENTS
Publication restricted pursuant to s. 645(5) and s. 648 of the Criminal Code.
F. Dawson J.
[1] Nichelle Boothe-Rowe is jointly charged with her husband Garfield Boothe with the second degree murder of Garfield Boothe’s 10 year old son, Shakeil. Nichelle Boothe-Rowe was the deceased boy’s stepmother.
[2] The issue before the court is the admissibility of utterances made by Nichelle Boothe-Rowe to Cst. Geraldine McNulty of the Peel Regional Police. The utterances were made in a pre-arrest telephone conversation and in a lengthy post-arrest interview. The only question is whether the Crown has discharged its onus of proving the utterances voluntary beyond a reasonable doubt.
[3] With respect to the telephone conversation, the focus of counsel’s attention has been directed to the fact that Nichelle Boothe-Rowe was not cautioned that she may be charged, need not say anything to the police and that whatever she did say would be used in evidence. Her counsel submits that, in the circumstances, she was a suspect by the time of the telephone conversation and so she ought to have been cautioned. As she was not cautioned she was not aware of the consequences of making a statement. Consequently, the statement was involuntary on the basis that she did not have an operating mind.
[4] With respect to the post-arrest interview, counsel for Ms. Boothe-Rowe submits that in the totality of the circumstances the interview was the product of oppressive circumstances and should be excluded as involuntary. Particular emphasis is placed on the fact that Ms. Boothe-Rowe stated repeatedly during the interview that she did not wish to speak to the police until after she had spoken in person to her counsel. This is coupled with the fact that she was advised by the police that her counsel was not coming to the police station. As it turned out, her counsel did attend at the police station while the interview was in progress. However, the police decided that the interview should not be interrupted.
[5] I propose to refer to the evidence and make my factual findings when I deal with each of the telephone conversation and the post-arrest interview in turn. Before doing so, however, I will briefly outline the legal principles of general application in relation to proof of voluntariness.
Voluntariness
[6] A statement made by an accused to a person in authority is inadmissible in evidence unless it is proven voluntary by the Crown beyond a reasonable doubt. Many of the leading authorities on voluntariness were reviewed by the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, 147 C.C.C. (3d) 321. Iacobucci J. for the majority took the opportunity to restate and modernize the confessions rule. He explained that in determining whether a statement has been proven voluntary the court must be concerned with voluntariness broadly conceived. While promises or threats in the classic form of hope of advantage or fear of prejudice exercised or held out by a person in authority may well lead to a reasonable doubt about voluntariness, the court is, in addition, required to consider all of the circumstances surrounding the making of the statement. The application of the rule is contextual. The court must consider whether the statement was the product of oppressive circumstances. As noted at para. 60, an atmosphere of oppression can arise from many factors, including denying access to counsel and excessively aggressive, intimidating questioning for a prolonged period of time.
[7] The court must also be satisfied that the accused was possessed of an operating mind at the time the statement was made (paras. 63-64). The Supreme Court of Canada previously held in R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914, at p. 936, [1994] S.C.J. No. 69, at para. 37, that the operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment.” In Oickle the majority made clear that the operating mind inquiry should not be considered a discrete one but rather considered in the context of the broader concept of the confessions rule.
[8] When police trickery has been employed to obtain a statement from an accused a separate inquiry should be held into that matter to determine whether the trickery employed was of the type which would shock the community. If so, it may render the statement inadmissible although the statement may not be viewed as involuntary within other aspects of the confessions rule.
[9] It is important to keep in mind, however, that the majority judgment in Oickle provides that the confessions rule has the “twin goals of protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes” (para. 33). The police must be free to use legitimate means to convince a suspect to make a statement. This includes the use of some inducements. As stated in para. 57: “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.”
[10] An ascendant theme throughout modern cases dealing with the confessions rule, the right to remain silent as protected by s. 7 of the Charter, and the right to counsel as provided for in s. 10(b) of the Charter, is that they are all related: see R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151; Whittle; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310. Speaking of these three rules in Whittle Sopinka J. wrote, at para. 29:
A decision in this case requires a consideration of elements of the confession rule, the right to silence and the right to counsel. While the confession rule and the right to silence originate in the common law, as principles of fundamental justice they have acquired constitutional status under s. 7 of the Charter. The right to counsel is a specific right expressly recognized in s. 10(b) of the Charter. Although each is a distinct right they are interrelated and operate together to provide not only a standard of reliability with respect to evidence obtained from persons suspected of crime who are detained but fairness in the investigatory process. Although the confession rule in its traditional formulation had as its raison d'être the reliability of the confession, a strong undercurrent developed which also supported the rule in part on fairness in the criminal process. See Hebert, supra, per McLachlin J., at p. 171. A common element of all three rules is that the suspect has the right to make a choice. [Emphasis added]
[11] The ability to make a meaningful choice is one of the defining touchstones of all three rights. As held in Sinclair, at para. 32, “…in the context of a custodial interrogation, the purpose of s. 10(b) is to support the detainee’s right to choose whether to co-operate with the police investigation or not, by giving him access to legal advice on the situation he is facing.”
[12] In Singh the majority held (at para. 36) that whether the question is voluntariness or a distinct violation of the right to remain silent, “the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will.” At para. 37 the majority held that voluntariness as understood today “requires the court to scrutinize whether the accused was denied his or her right to silence.” Therefore, a finding of voluntariness will encompass a determination that there has been no violation of the right to remain silent as protected by s. 7 of the Charter and a finding of a breach of that right will prevent a court from finding a statement voluntary under the confessions rule.
[13] Germaine to the admissibility of the post-arrest interview in this case is the majority’s statement, at para. 53, that in some circumstances, continued questioning by the police in the face of repeated assertions of the right to silence may lead to a finding that the accused was denied a “meaningful choice whether to speak or remain silent.” It is clear from the majority judgment that such a finding would lead to the statements automatic exclusion under the confessions rule. “The ultimate question is whether the accused exercised free will by choosing to make a statement” (para. 53). If there is a reasonable doubt about that the statement must be excluded as involuntary.
[14] I will deal with various legal principles of more specific application in my separate analysis with respect to the telephone interview and the post-arrest interview.
The Telephone Interview
[15] The police were called to the Boothe residence in Brampton at 5:04 p.m. on Friday, May 27, 2011. Shakeil Boothe was found dead in an upstairs bedroom partially covered with a sheet. Based on all of the evidence on the voir dire I conclude it was apparent that Shakeil bore the signs of a number of cuts, bruises and abrasions of varying ages. However, there were no signs of recent major trauma that would account for his death. The police were also told that Shakeil had been suffering from a cold-like illness. While the circumstances of Shakeil’s death were very suspicious, I find that it was not obvious that Shakeil was a victim of a homicide. That only became a certainty when the police learned the results of the post-mortem examination. Those results were shared with the investigative team on Sunday, May 29, 2011 at 12:30 p.m. At that time the investigators were advised that the cause of death was multiple blunt force injuries and pneumonia.
[16] Nichelle Boothe-Rowe had left the home prior to the arrival of the police, and according to her statements, on Thursday evening May 26, 2011. She had taken the couple’s eight month old son Jayden with her and travelled to the United States. However, that was not immediately known to the police.
[17] It turns out there is a history of domestic violence and there is evidence before me that Garfield Boothe understood that the two of them were not to be living together. When it became apparent that the authorities would be involved Garfield wanted Nichelle to vacate the residence.
[18] Garfield’s concerns in this regard probably first arose when he learned that the Peel Children’s Aid Society (CAS) wanted to visit the residence. The CAS had received an anonymous call on May 25, 2011 advising that Shakeil was being physically abused. The CAS had been calling the home trying to arrange a meeting soon after receiving that tip.
[19] When the police arrived on scene on May 27, 2011 they were not aware that Nichelle had been living in the home. Garfield told the investigators he had last spoken to Shakeil at 10:30 p.m. May 26, 2011 and that Shakeil was not eating. He said he had left for work at 6:00 a.m. on May 27 and that Shakeil was still breathing. He said the child had been left with a babysitter named Trudy Rowe. The police understood she was a cousin. Garfield said Trudy Rowe called him at work at 7:30 a.m. and said Shakeil was not responsive. He told the police he came home at 8:30 a.m. and that the child was still breathing. Garfield said that he went to bed and slept until 1:30 to 2:00 p.m. When he got up he found that Shakeil was no longer breathing. He called his father and when his father arrived the police were notified.
[20] Various computer checks run by the police led to the discovery of prior occurrences of domestic assault by Garfield Boothe on Nichelle Boothe. It was not until approximately 9:50 p.m. that the police figured out, by matching up certain telephone numbers, that Nichelle Boothe was the same person as Trudy Rowe.
[21] Prior to that the police called a number for Trudy Rowe that was provided by Garfield but it was out of service. Also prior to that, at 9:20 p.m., Cst. Robert Wilson placed a call to a different cell phone number that he understood had also been linked to Trudy Rowe. A woman answered and identified herself as Trudy. Cst. Wilson told her that the police needed to speak with her urgently. She said it would take her 48 hours to return. She would not disclose her location. When the officer asked her if she knew Garfield Booth or 15 Homeland Court she was silent. The officer left his contact information and she terminated the call abruptly.
[22] The phone call at 9:20 p.m. is not in issue as the Crown does not propose to tender it in evidence.
[23] Once the police learned that Trudy Rowe was Nichelle Booth they “pinged” the cell phone number Cst. Wilson had called. This was done shortly after 9:50 p.m. on May 27, 2011. They learned that at 1:12 a.m. on May 27, 2011 that phone had been using a cell phone tower in Fort Erie, Ontario. Through the Canada Border Service Agency (CBSA) the police also learned that Nichelle Boothe had crossed into the United States at Fort Erie with an infant named Jayden, shortly before 1:00 a.m. on May 27, some 16 hours before the police were called to 15 Homeland Court and found Shakeil dead.
[24] Cst. McNulty was tasked with calling Nichelle Boothe-Rowe. Cst. McNulty testified that she placed a call to Nichelle’s cell phone at 5:15 a.m. on Saturday, May 28, 2011. She testified that there were two purposes for the call. The first was to check on the safety of Jayden. Once the police learned that Nichelle and Jayden were living in the home where Shakeil was found dead and that Jayden could not be accounted for they were giving serious consideration to issuing an “Amber Alert” to assist in locating Jayden. The second reason was to gather information about what happened to Shakeil.
[25] Cst. McNulty testified that when she placed the call at 5:15 a.m. on May 28 she considered Nichelle Boothe-Rowe to be a person of interest and not a suspect. Having regard to both her evidence in-chief and her cross-examination, it is apparent Cst. McNulty had at least the following information at the time she placed the call. The coroner who had attended the scene (not the pathologist who did the post-mortem examination) had reported that Shakeil had cuts on his left arm, an old black eye, abrasions on his fingers, wounds to his left leg, linear marks on his upper chest (possibly knife cuts), a swollen right arm and an abrasion on his chin. The coroner also reported that rigor mortis was just “coming off”, which placed the time of death as possibly going back to May 26, 2011 or into the early morning hours of May 27. This conflicted with Garfield’s account of what happened.
[26] Garfield had told the police Shakeil was still breathing at 7:30 a.m. on May 27, 2011 and claimed to have been asleep from that time until 2:00 p.m. However, the police had learned that Garfield had been the subject of a police traffic stop during the time he claimed he was sleeping. The police also learned that a neighbour had overheard Garfield saying, “I’m going to kill you” to Nichelle not long before these events.
[27] Cst. McNulty was also aware that Nichelle’s phone had been in the Fort Erie area on May 26 going into May 27 and that she had crossed into the United States. She also had information that the neighbours had seen a moving truck at 15 Homeland Court on May 27. She was aware of the anonymous tip to the CAS on May 25 from a woman who said she was a nurse who stated she had been inside the house. She was also aware that Garfield had said that he did not harm Shakeil.
[28] When cross-examined on all these points, and on similar evidence, Cst. McNulty explained that there were definitely suspicious circumstances but she also had information that the child was ill and explained that the police did not yet have a cause of death from the post-mortem examination. It appeared Nichelle Boothe-Rowe had left to travel to the United States prior to the death. She explained that as an investigator she had to maintain an open mind until she had a cause of death.
[29] Cst. McNulty acknowledged that she was aware there was an issue as to whether Nichelle was a suspect. She concluded Nichelle was not a suspect as she could not say at that point that she had reasonable grounds, based on evidence rather than suspicion, that Nichelle had committed a criminal offence. Cst. McNulty testified that as soon as the cause of death was known the police considered Nichelle to be a suspect and notified the CBSA that she should be arrested for manslaughter if she crossed the border into Canada. That occurred the day after the telephone conversation.
[30] I accept Cst. McNulty’s evidence that she did not consider Nichelle Boothe-Rowe to be a suspect at the time she placed the call. That does not end the matter, however, as I am of the view that it is for the court to determine on an objective basis whether the accused was a suspect so that it would be advisable to provide her with a standard police caution. I say “advisable” as there is no hard and fast requirement that such a caution be given. As held in R. v. Boudreau, 1949 26 (SCC), [1949] S.C.R. 262, 94 C.C.C. 1, the presence or absence of a caution or warning is only one circumstance to be taken into account in determining voluntariness, although it may be an important one. See also the discussion in R. v. Esposito (1985), 1985 118 (ON CA), 24 C.C.C. (3d) 88 (Ont. C.A.) per Martin J.A. at pp. 95-96.
[31] In R. v. Papadopoulos (Ruling No. 6), [2006] O.J. No. 5423, at paras. 29-32, I reviewed the descriptions of the test for determining when a caution would be advisable that appear in a number of Ontario Superior Court decisions. I adopted the formulation proposed by Trafford J. in R. v. Morrison, [2000] O.J. No. 5733 at para. 50, that a person is a suspect and should be cautioned when, viewed objectively, the information collected during an investigation tends to implicate him or her in the crime.
[32] However, since my decision in Papadopoulos, Charron J. has provided helpful guidance on the appropriate test, in Singh at paras. 32-33. There Justice Charron endorsed the suggestion that a caution should be given “when there are reasonable grounds to suspect that the person being interviewed has committed an offence.” Applying this test I conclude that a warning was not called for prior to the call being placed. Given the totality of the circumstances I conclude that until the cause of death was known uncertainty remained as to whether Shakeil’s death was a homicide.
[33] When Cst. McNulty placed the call she did not plan to record it. During the first part of the call she made notes as best she could of both the questions asked and the answers given, however she was not able to make a verbatim record. Part way through the conversation another police officer approached with a handheld recorder which was placed close to the earpiece of the telephone Cst. McNulty was using. By this means a good deal of the conversation was recorded and has since been transcribed.
[34] During the first part of the call, which was not recorded, Nichelle said she left the home on Thursday, May 26, 2011 because she was scared. She said she did not want the CAS to take Jayden. She said Shakeil had been sick for two weeks with a cold, coughing and a runny nose. She said his father was treating him with home remedies. When Cst. McNulty asked how Shakeil was doing Thursday night Nichelle said “not well” and that she did not think he would “make it”. She said that Garfield told her to leave and take Jayden somewhere where he would be safe. Nichelle told the officer she took a cab to Toronto and a bus to the Montreal area and that she was in Laval. This was known to Cst. McNulty to be false.
[35] It seems to me that after the things I have just referred to were said it would have been a good idea to caution Ms. Boothe-Rowe. Her statement that she left town without seeking medical attention for Shakeil when she knew he was sick and felt he might not survive was an admission that, viewed objectively, would support a conclusion that she had failed to provide the necessaries of life, should it be determined that Shakeil’s illness was a significant contributing cause of his death. That was a reasonable possibility at that time. The situation bears some similarity to that in R. v. Worral, [2002] O.J. No. 2711 (S.C.J.); see paras. 102-104. At the same time, however, I see this is a difficult call for Cst. McNulty as the cause of death was not actually known at that time.
[36] Nichelle Boothe-Rowe went on in the recorded portion of the interview to make admissions that she was aware that Garfield had struck and whipped Shakeil in the past. However, she also said a number of things that were exculpatory or minimized her knowledge or involvement.
[37] I turn now to the central question, which is the voluntariness of the statement. As I have already said, the absence of a caution is a factor to be taken into account, and I do so. However, when I consider all of the evidence on the voir dire (Nichelle Boothe-Rowe did not testify) I conclude I am persuaded beyond a reasonable doubt that the statement was voluntary.
[38] The first thing I would note is that defence counsel agrees that there were no threats, promises or improper inducements. A review of the evidence fully supports this concession. There is nothing about the conversation that was oppressive.
[39] On behalf of the accused, Mr. Ross rests his submission that the conversation has not been proven voluntary on the basis that because Nichelle Boothe-Rowe was not warned or cautioned she was denied access to information concerning her rights and the jeopardy she was facing. She had not spoken to counsel prior to speaking to Cst. McNulty and so she was reliant on the police to receive that information. He submits that she was deprived of information that would allow her to evaluate the circumstances and make an informed choice about whether to speak to the police. In both his factum and in oral argument Mr. Ross tied this submission to the concept of operating mind.
[40] I see no indication whatever that Nichelle Boothe-Rowe did not have an operating mind as defined in Whittle, and much evidence to support the conclusion that she did. However, I interpret the essence of counsel’s submission to be that, due to a lack of information that the police should have supplied to her, Ms. Boothe-Rowe was not in a position to make a “meaningful choice” about whether to speak to the police. This is a standard which I interpret as being somewhat more favourable to the defence position than the deprivation of an operating mind. I observe that in Singh, at para. 46, Charron J. made approving reference to a passage from p. 184 of Hebert where McLachlin J. (as she then was) spoke of either “denying the suspect the right to choose or depriving him of an operating mind” as violating the right to silence, which, on the authority of Singh, would also render the statement involuntary. This is the source of the distinction I have made. If I had a reasonable doubt about whether Ms. Boothe-Rowe had enough information to make such a meaningful choice, I would exclude the conversation.
[41] However, based on a review of all the circumstances surrounding the telephone conversation, I am satisfied that Nichelle Boothe-Rowe had sufficient information about what was going on to make a meaningful choice about whether to speak to the police. The same evidence that I will point to also establishes she was not deprived of an operating mind.
[42] First of all, there is no indication in any of the evidence that Nichelle Boothe-Rowe is not a person of normal intelligence. She said she went to the United States because she was afraid Jayden would be taken from her. This indicates some awareness of jeopardy associated with what was going on in the home. She knew that Garfield was whipping Shakeil and said she tried to stop him on occasion. She knew Shakeil had been taken out of school. She knew that he was ill and said she thought he might not make it.
[43] After she fled the situation she received a telephone call from Cst. Wilson before she was called by Cst. McNulty. She knew the police wanted to speak to her on an urgent basis. Garfield Boothe and 15 Homeland Court were mentioned and she responded with silence.
[44] When Cst. McNulty called Ms. Boothe-Rowe on May 28, 2011 she identified herself as a police officer and explained why she was calling. She said she was investigating Shakeil’s death at the residence where the accused was residing. A person of normal intelligence in these circumstances would, in this day and age, realize that anything they said about their connection to the situation that led to Shakeil’s death could implicate them in a crime and could be used as evidence should they be charged.
[45] When Cst. McNulty asked Nichelle Boothe-Rowe at p. 17 of the transcript of the recorded portion of the conversation whether Shakeil was still alive when she left the home on Thursday, she responded, “I don’t wanna implicate myself”. This demonstrates beyond doubt that she knew she could incriminate herself by choosing to speak to the officer. She had an operating mind and she knew she had a choice about whether to speak. She chose to speak. She also lied to the officer when she said she was in Laval, which is a further indication she was aware of her jeopardy.
[46] The accused was also in a position to control the situation. She was not in custody but at a location unknown to the police outside the jurisdiction. She was on a cell phone and could have terminated the call at any time.
[47] The situation here is not very different than that considered in R. v. E.B., 2011 ONCA 194, 269 C.C.C. (3d) 227 (Ont. C.A.), at paras. 84-96, although I am aware a modified form of caution was given in that case. Here, as in the case of the grandfather (N.K.) in the E.B. case, Nichelle Boothe-Rowe knew she was one of Shakeil’s caregivers or guardians and that the police were investigating his suspicious death in the home where she resided with Shakeil’s father.
[48] Given the absence of any threats, promises, improper inducements or police trickery, and the relatively low threshold to establish an operating mind as defined in Whittle, these other circumstances I have referred to persuade me beyond a reasonable doubt that the accused was able to and did make a meaningful choice to speak to the police. She was aware that what she said could be used to her detriment. I find the utterances she made to Cst. McNulty during the May 28, 2011 telephone conversation to be voluntary. They will be admitted into evidence.
The Post-Arrest Interview
[49] By the end of the May 28, 2011 telephone conversation Nichelle Boothe-Rowe had agreed that she would return to Canada with Jayden and meet with Cst. McNulty at 6:00 p.m. on Sunday, May 29, 2011. She was waiting for relatives to arrive from Florida to accompany her and Jayden back to Canada. By the end of the May 28 telephone conversation Ms. Boothe-Rowe told Cst. McNulty that she was in New York and provided an address.
[50] Later on May 28, 2011 Cst. McNulty received a telephone call from Ms. Boothe-Rowe’s counsel, Mr. Brian Ross. Mr. Ross advised Cst. McNulty he had not yet been retained but that when he was he would be acting for her. Mr. Ross advised Cst. McNulty that he could not meet with Ms. Boothe-Rowe until Monday and asked if a warrant would be issued for her arrest if she did not attend, presumably on Sunday as she had promised. Cst. McNulty advised only that there was “no warrant at this time”. Cst. McNulty told Mr. Ross she could not discuss the case further as he was not yet retained, but did advise him the police were concerned about the infant Jayden.
[51] The following day, May 29, 2011, the police learned the cause of Shakeil’s death and put out an alert for Ms. Boothe-Rowe’s arrest on a charge of manslaughter. She was arrested crossing the border into Canada at Fort Erie shortly before 1:55 a.m. on Monday, May 30, 2011. Jayden was with her and was taken into care by a local CAS. Two officers were dispatched to bring her back to Brampton and Cst. McNulty was assigned to interview her. Ms. Boothe-Rowe’s relatives travelled to Brampton as well.
[52] Nichelle Boothe-Rowe was placed in an interview room at a Peel Regional Police division at 6:44 a.m. on Monday, May 30, 2011. She was advised the room was being audio and video recorded. One of the male officers who transported her had her confirm that they did not talk about the case during her transport. She also confirmed that no promises or threats had been made to her. It was confirmed that she had just used the bathroom and that no one spoke to her during that time. She also confirmed that she spoke to duty counsel and to a lawyer. She said she was satisfied with the advice she received. She was offered water and coffee and she requested hot chocolate, which was provided to her within a reasonable time.
[53] Cst. McNulty entered the room at 6:50 a.m. Cst. McNulty reminded the accused that she was under arrest for manslaughter, briefly explained the theory of why and again confirmed that Ms. Boothe-Rowe had spoken to duty counsel. Cst. McNulty then offered the accused an opportunity to speak to Brian Ross again. This was arranged. However, first Ms. Boothe-Rowe was given both a primary and secondary caution.
[54] The interview proceeded briefly while they waited for Mr. Ross to call back. Her background was discussed. No objection is raised that the police failed to hold off during this brief period. The accused and her counsel then had a private telephone conversation for approximately 15 minutes.
[55] Cst. McNulty offered Ms. Boothe-Rowe food. The accused said she was hungry but could not eat. She was intermittently visibly upset and often dabbed tears from her eyes. At other times, however, Ms. Boothe-Rowe smiled. She appeared at all times to be in control of her faculties. While she said she was tired she at no time said that she was too tired to continue or that she wanted a break.
[56] Throughout almost the entire interview Cst. McNulty maintained the same general demeanour. She spoke calmly and in a friendly and emotionally supportive fashion. I note that during one part of the interview that was particularly difficult for Ms. Boothe-Rowe, she asked if she could hold the officer’s hand and the officer said “of course”.
[57] There were only a couple of times during the interview where Cst. McNulty raised her voice at all or became more forceful. On those few occasions the voice raising and persistence remained relatively modest. There was no yelling or desk pounding. Cst. McNulty did swear from time to time when describing what had happened to Shakeil and when she was pressing for answers about that. However, this was far from a “high pressure” interview, based on the way it was conducted. Throughout almost the entire interview Cst. McNulty took what I would characterize as a rapport building approach.
[58] I do not see any evidence of threats or improper inducements. Some discussion occurred about where Jayden might be placed and the officer did indicate that she hoped it would be with the accused’s family, if appropriate. In the overall context I am satisfied that this did not operate as an inducement for Ms. Boothe-Rowe to cooperate with the police. There was no quid pro quo or tying of this brief discussion to Ms. Boothe-Rowe making a statement. This is the only thing that occurred during the interview which counsel suggests may have been an inducement. Counsel referred to some minor inducements which he characterized as “not fatal”.
[59] Mr. Ross does submit, however, that the interview became oppressive based, essentially, on a combination of three factors. He submits that these oppressive circumstances overwhelmed Ms. Boothe-Rowe’s ability to choose whether to remain silent or speak to the police, thereby rendering the statements made in the interview involuntary.
[60] The first factor relied upon is that Cst. McNulty continued to question Ms. Boothe-Rowe in the face of her repeated requests to speak to her lawyer in person before she spoke further with the police. The second factor is that when Mr. Ross attended at the police station while the interview was in progress the police refused to interrupt the interview so he could speak with his client. The third factor is that Cst. McNulty told Ms. Boothe-Rowe that her lawyer was not coming to the police station. That was said at p. 138 of the transcript of the interview, immediately before the accused really opened up and spoke freely. Mr. Ross points out that Ms. Boothe-Rowe did not mention wishing to speak to her lawyer again after that point and submits that at least the balance of the interview should be excluded. I will comment on each of these factors in turn.
[61] With respect to the first factor, it is accurate to say that on a number of occasions Ms. Boothe-Rowe said that she did not want to answer either, “any more questions”, or certain specific questions, until she met with her lawyer. I marked 15 such locations in the transcript of the interview while watching the recording of the interview in the courtroom. There may be a few more. The interview lasted approximately seven and one-half hours, including breaks.
[62] Typically what would happen is that Cst. McNulty would ask a question that dealt fairly specifically with what happened to Shakeil. Ms. Boothe-Rowe would then say something similar to, “I’ll speak with my lawyer first”. She usually added that after that she would provide more information to the police. When other questions important to the investigation were asked, but which were less specific in terms of what happened to Shakeil, Ms. Boothe-Rowe would almost always answer them. There was much more open dialogue between the officer and the accused than refusal to answer. When Ms. Boothe-Rowe would raise wanting to speak to her lawyer, Cst. McNulty would usually say that she understood but that she had an investigation to do and she would try to persuade the accused, usually but not always in a relatively low key fashion, to speak to her. This would usually lead to the conversation starting back up in a new or related, but not exactly the same, area.
[63] Speaking generally, I did not form the impression watching and listening to the interview that the accused’s ability to choose whether to speak with Officer McNulty was overwhelmed. Just the contrary is true. There were many things that Ms. Boothe-Rowe seemed content to speak about and some other topics she did not want to speak about until she met with her lawyer. When those topics came up she told Cst. McNulty what her position was.
[64] At this point I wish to refer to things said by Ms. Boothe-Rowe to a relative of hers, Charmaine Thomas, who was permitted to enter the interview room at 9:53 a.m. (transcript, p. 112). At that point Cst. McNulty left the room and the two women talked and ate breakfast together. The food was brought into the room at the same time Charmaine Thomas entered. The two women were together until approximately 10:57 a.m. when Cst. McNulty returned and Charmaine Thomas left.
[65] Cst. McNulty testified that she had no part in the decision to have Charmaine Thomas meet with the accused. Evidence from other police witnesses was that they decided that allowing Ms. Boothe-Rowe to meet with Charmaine Thomas might provide moral support to the accused and lead her to speak to the police. No evidence was developed during the voir dire to the effect that Ms. Thomas was acting as an agent for the police.
[66] Ms. Thomas and Ms. Boothe-Rowe spoke in Jamaican patois, much of which is difficult to understand. However, at p. 117 of the transcript, which was just before 9:59 a.m., Ms. Boothe-Rowe spoke to Charmaine Thomas as follows:
I have to protect Jayden, I have to protect myself and everything. But I want to hear what ‘em officer, what ‘em have. Can me, he don’t know nothing about the case.
[67] I take from this that Ms. Boothe-Rowe wanted to learn about the case from the police. It might also be inferred that that was related to her need to protect herself, and possibly to gain some advantage over Garfield Boothe. The latter point is not important and I place no weight on it, but the first point, which seems to me to be quite clear from the quote, suggests a desire on the part of Ms. Boothe-Rowe to find out what she could by speaking with the police. This is evidence of a strategic decision on her part that involved engaging with Cst. McNulty.
[68] The second and third factors must really be considered together. The timing of events and certain other facts are also important when analysing the legal significance of the second and third factors.
[69] In this regard, the first thing I would mention is that there is no evidence the police were aware that Mr. Ross would be attending at the police division. Mr. Ross, quite fairly, concedes he cannot make that submission. Because Ms. Boothe-Rowe asked Cst. McNulty a number of times if her lawyer had arrived yet I draw the inference that Ms. Boothe-Rowe understood Mr. Ross was coming. But no one told the police that he was.
[70] The second, and perhaps most significant point, is that the “turning point” of the interview was at approximately 11:43 to 11:45 a.m. (transcript, pp. 137-139). Just before that Cst. McNulty had been pushing Ms. Boothe-Rowe harder than she had through the interview to that point. Ms. Boothe-Rowe was crying at that time, as she was briefly at various points in the interview.
[71] Ms. Boothe-Rowe then asked again if her lawyer was coming and asked to speak to her sister “to ask whether the lawyer is coming”.
[72] In response Cst. McNulty said, (transcript, p. 138) “No, the lawyer is not coming here.” The accused responded by asking, “He can’t come?” The officer replied, “He’s not coming here, no. If he was coming here, he would’ve been here at 9 o’clock this morning; he’s not coming here.” The officer then added that the accused had some explaining to do.
[73] Within moments the following exchange occurred:
Accused: Okay, alright. You know what, I’ll just go ahead, give my, give it and stuff, okay.
Officer: Okay.
Accused: Cause I didn’t know if about the lawyer’s coming here or the, public defender, or could I get a public defender?
Officer: That would be your lawyer and he’s not coming here. They don’t come here. They don’t come to the police station.
Accused: Okay, so alright okay. This stuff might come back, it might haunt me.
Officer: It will clear your conscience my dear.
[74] From that point on Ms. Boothe-Rowe spoke quite freely for the balance of the interview. She remained emotional and at times sought comfort from Cst. McNulty. As mentioned a moment ago, this important exchange took place at approximately 11:45 a.m.
[75] Mr. Ross, who the police were not expecting, did arrive at the police station, but that was not until approximately 12:10 p.m., almost one-half hour later. Given that the police did not know that Mr. Ross was coming it is difficult to view what Cst. McNulty said to Ms. Boothe-Rowe as deliberately misleading, designed to undermine any legal advice or the role of counsel, or as some form of trickery.
[76] In addition, I accept Cst. McNulty’s evidence that she had never had the experience of a lawyer attending at a police station in the Region of Peel to speak to an accused. While my experience in other parts of the province is different, I have no reason to reject Cst. McNulty’s evidence on this matter. Cst. Michael Walker gave evidence to the same effect.
[77] In addition, Cst. McNulty testified that she was of the view that nothing had occurred during the interview that would permit a reconsultation with counsel in any event. The accused had already spoken to duty counsel and to her own lawyer. She had not expressed any lack of understanding of her rights. There had been no change in her jeopardy and no new investigative techniques were being employed. There were no changed circumstances that required the police to facilitate further contact between Ms. Boothe-Rowe and Mr. Ross.
[78] I would add that when Mr. Ross arrived at the police station approximately one-half hour after what I have referred to as the turning point, Cst. McNulty was not made aware of his presence. Consequently, she had no reason to think that what she had said to the accused was incorrect.
[79] Shortly after 12:10 p.m. Mr. Ross met with Cst. Michael Walker, the officer in charge of the case, and Det. Sgt. James Kettles, the major case manager.
[80] Det. Sgt. Kettles said that he had been intermittently checking on the progress of Cst. McNulty’s interview of Nichelle Boothe-Rowe by attending the monitoring room. He told Mr. Ross the police were still speaking to Ms. Boothe-Rowe and that he would not interrupt the interview.
[81] Both Det. Sgt. Kettles and Cst. Walker gave evidence that they considered whether there were any changed circumstances that would require the police to facilitate a further consultation between Mr. Ross and his client and decided there were no such circumstances. Det. Sgt. Kettles said investigative progress was being made in the interview and he did not want to interrupt that. He was satisfied Ms. Boothe-Rowe was aware of her rights. Cst. Walker said that he was generally aware of the Sinclair decision and identified the relevant factors from that case, which he said the police had taken into account in deciding not to interrupt the interview.
[82] I am satisfied from a review of all of the evidence that nothing had occurred which would require the police to facilitate further contact between the accused and her counsel pursuant to the relevant authorities: Sinclair, at paras. 47-52; R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at paras. 21-22. Mr. Ross has not pointed to anything other than Ms. Boothe-Rowe’s repeated request to speak to counsel.
[83] In all of the circumstances I conclude that the second and third factors do not enhance the submission that the interview became oppressive and resulted in the accused’s will being overborne. The situation might possibly have been different if Mr. Ross had arrived at the police station prior to 11:45 a.m. In those circumstances, even if the police were within constitutional bounds in denying a further consultation with counsel, I can conceive of an argument that deliberately misleading an accused about the reliability of their counsel’s efforts to see them could undermine an accused’s resolve to remain silent in some circumstances. But that was not what happened here. Mr. Ross had not arrived at the police station before Cst. McNulty said he was not coming and the police had no idea that he was on his way. Ms. Boothe-Rowe decided to open up almost a half-hour before Mr. Ross arrived.
[84] In addition, I observe that the purpose of s. 10(b) of the Charter in relation to voluntariness had been satisfied. Ms. Boothe-Rowe previously had access to both duty counsel and her own counsel. The presumption is that she was properly advised. Nothing had occurred that would require a further consultation and the police were within bounds in continuing their investigation by questioning her.
[85] That leaves the first factor which is discussed above. Having regard to what I have already said concerning that factor, and having scrutinized the entire interview and all of the surrounding circumstances, I am satisfied beyond a reasonable doubt that the statements made during the May 30, 2011 post-arrest interview were voluntary. Ms. Boothe-Rowe’s ability to choose whether to speak to the police was not overborne. There were no threats, promises, improper inducements or tricks. She said herself, at p. 139 of the interview transcript, that what she was about to say might come back to haunt her. When Cst. McNulty said it would clear her conscience, Ms. Boothe-Rowe said that she knew that, and then said, “Alright. Where would I begin?’ These comments show that she was making a conscious and considered decision to speak.
[86] The interview is admissible.
F. Dawson J.
Released: January 24, 2014
COURT FILE NO.: CRIMJ (P) 2346/12
DATE: 2014 01 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
NICHELLE BOOTHE-ROWE and GARFIELD BOOTHE
Respondents
RULING No. 1: VOLUNTARINESS OF NICHELLE BOOTHE-ROWE’S STATEMENTS
F. Dawson J.
Released: January 24, 2014