R. v. Mullins, 2015 ONSC 1552

COURT FILE NO.: CR-14-30000382-00

DATE: 20150310

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL MULLINS

Defendant

A. Sabbadini, for the Crown

D. Basile, for the Defendant

HEARD: November 17, 2014

MOLLOY J.:

REASONS FOR DECISION

(Voluntariness of Statement)

A. INTRODUCTION

[1] Michael Mullins was charged with sexual assault and with administering a stupefying drug for the purposes of committing that assault. He elected to proceed by judge alone. For oral reasons delivered on January 13, 2015, I convicted Mr. Mullins on both counts. At the outset of the trial, the Crown sought leave to introduce statements made by Mr. Mullins to the police as part of its case at trial. The defence objected on the grounds that the statements were not voluntary. I ruled that the statements were voluntary and admissible, indicating that reasons for that decision would follow. Those reasons are set out below.

B. BACKGROUND FACTS

[2] The sexual assault began on the evening of Monday, November 22, 2010 and continued into the morning of Tuesday November 23, 2010. Mr. Mullins was 47 years old at the time. The victim of the assault (A.S.) was 17 years old and a close friend of Mr. Mullins’ daughter, Katlyn.

[3] A.S. knew Mr. Mullins quite well, having spent many sleepovers at his home after going out with Katlyn. Mr. Mullins had arranged to meet A.S. on the evening of November 22nd, with the ruse that he would take her shopping to help him purchase a birthday present for Katlyn. When A.S. got into Mr. Mullins’ truck, he presented her with a Tim Horton’s iced cappuccino and a marijuana cigarette, warning her that she might detect an odd taste on the cigarette because he had spilled some of his daughter’s perfume on it. She drank about half of the cappuccino and smoked some of the marijuana, but then passed out, while still in the truck. Apart from a few short snatches of memory in some location that was unfamiliar to her but which contained a bed and a shower, A.S. had no memory of anything else that happened until Mr. Mullins dropped her off at her home the next morning. When she arrived home, she was weak and disoriented, and was missing her nose ring and underwear. She also had many unexplained injuries on her body that had not been there the day before.

[4] A.S. went to hospital on November 24, 2010 and reported the assault. Police were notified. A.S. was examined and samples of her urine and blood were taken. The examination of A.S. revealed: multiple bruises and scrapes to her body; a one centimeter long tear in her vagina; three types of Benzodiazepine drugs (Valium, Restoril, and Oxazepam) in her urine; and Mr. Mullins’ semen in her vagina.

[5] Mr. Mullins was arrested at a gas station on March 25, 2011. He was advised that he was being charged with sexual assault and was transported by police car to the police station. In the police car, and at various times at the police station, Mr. Mullins made statements about prescription drugs he was taking. Those drugs included Valium and Restoril, two of the drugs that were found in A.S.’s system. The third drug (Oxazepam) is a metabolite of the other two and was likely not administered directly.

C. THE POSITION OF THE PARTIES

[6] There is no suggestion by the defence that the police breached Mr. Mullins’ Charter rights. The defence accepts that Mr. Mullins was fully advised of his rights and that upon reaching the police station he was given an opportunity to, and did, speak to a lawyer. Further, there is no allegation that Mr. Mullins made statements to the police based on any inducements or threats. Rather, the defence argues that Mr. Mullins disclosed the information about his medication because of concerns for his own health and, in that sense, and that sense alone, the statements were not voluntary.

[7] The Crown submits that Mr. Mullins made completely voluntary statements to the police designed to elicit sympathy and to obtain his release from custody and that he had no real health concerns.

D. THE STATEMENTS MADE BY MR. MULLINS

Statements During Transport to the Police Station

[8] Mr. Mullins was arrested at a gas station. He had driven there in his truck. At 8:45 a.m., immediately following his arrest, he was placed in a police cruiser equipped with an audio and video camera. Everything he said after being placed in the police car was video and audio recorded. He was advised of his rights and cautioned on camera and he said he understood. He was asked if he wanted to talk to a lawyer and when he answered that he did, he was told that he would be able to do that when he got to the police station. Mr. Mullins then immediately volunteered the information that he was on medication for his heart. This was followed almost immediately by Mr. Mullins asking if he would be able to get bail.

[9] The transporting officer told Mr. Mullins that officers were taking his truck to his home and parking it there and that they would follow the truck in the cruiser. The cruiser had two cameras, one that focused on the road ahead of the cruiser and the other on Mr. Mullins in the backseat. It can clearly be seen that the cruiser is following the truck.

[10] As they were driving to Mr. Mullins’ home, the transporting officer asked him for his age, and he said he was 47. The officer then asked for his name, which Mr. Mullins refused to supply, telling the officer, “I gotta lawyer up.” The officer did not press the issue.

[11] Just as they arrived in front of Mr. Mullins’ house at 8:50 a.m., Mr. Mullins suddenly volunteered, “Michael Mullins, that’s my name.” There is then a short period where the truck is being parked and the truck keys are passed over to the transporting officer in the cruiser. A friend of Mr. Mullins was outside the house.[^1] Mr. Mullins was permitted to give instructions to his friend about arranging bail for him. Mr. Mullins’ cell phone was given to the friend and Mr. Mullins gave him instructions for how to find the number of his girlfriend Ashley in his contact information. He told his friend to call Ashley and to tell her to get her brother and come bail him out at 42 Division.

[12] The cruiser then left the location of Mr. Mullins’ home and headed for the police station. During the drive, Mr. Mullins and the officer exchanged some small talk about various things. Mr. Mullins told the officer that the truck was a rental because he had been in an accident the day before and his own truck was being repaired. Mr. Mullins then again turned to the issue of bail and told the officer that a buddy of his was charged with sexual assault and was released on his own recognizance.

[13] He also told the officer that he had been in another accident the year before that and his truck that time was a complete write-off. He volunteered that he hurt his back in that accident. The officer then referred to Mr. Mullins’ earlier statement that he was on medication for his heart and asked him if he had his medication on him. Mr. Mullins said he had previously had two heart attacks and was supposed to take a pill that morning but had not. He said his medication was in his house. The officer told him to let them know right away if he was experiencing any symptoms.

[14] Although Mr. Mullins asked the officer several times about the nature of the sexual assault charge against him and about bail, the officer repeatedly told him he did not have any information on that. The officer asked if he had a specific lawyer in mind, and Mr. Mullins provided two names, but also indicated that if they weren’t available he would be okay with duty counsel.

[15] The cruiser arrived at the station at 9:12 a.m. and Mr. Mullins was then paraded before the booking sergeant. Throughout the course of his drive to the police station, he did not mention that he was taking either Valium (an anti-anxiety medication) or Restoril (a sleeping pill). The only medication he mentioned was with respect to his heart issues, and he did not mention it by name.

Statements During Booking

[16] At the time of his booking, Mr. Mullins was asked the standard questions always asked to determine if there are any health or safety issues. He told the booking sergeant that he was supposed to take his heart medication that morning and again in the afternoon, but that he had not taken it that morning. He was asked what medication he was on and he replied: Nitroglycerine; Valium; Percocet for arthritis pain; Restoril to sleep; and Dilantin (which he confirmed was a beta-blocker[^2]). The sergeant asked him if the medication was in a place where they could get them. He replied that they were in a locked cabinet and that his girlfriend had access to it. He then volunteered that if he started feeling bad, he would let them know. Mr. Mullins’ cellphone was included in the list of personal property in his possession at the time of booking and was secured in a property bag along with his other personal effects.

Formal Videotaped Statement

[17] At 12:42 p.m. that same day, Mr. Mullins voluntarily sat down with Detective Rob Thomas and provided a videotaped statement that lasted for approximately two-and-a-quarter hours. Prior to commencing that interview, Mr. Mullins had spoken on two occasions with a lawyer contacted for him by his girlfriend, Ashley. That lawyer was one of the two names he had provided in the police cruiser during his transport to the station. At the beginning of the interview, Det. Thomas again advised Mr. Mullins of his rights and cautioned him. The detective also confirmed on the record that nobody had threatened Mr. Mullins or made any promises to him and that he was participating in the interview voluntarily. Det. Thomas advised Mr. Mullins that there were two sides to every story and he wanted to give Mr. Mullins the opportunity to explain his side of this story.

[18] Almost immediately Mr. Mullins raised the issue of bail, querying why he was being detained for a bail hearing. Det. Thomas tried to defer that discussion and told Mr. Mullins he wanted to discuss his medical issues. Mr. Mullins said he had had two heart attacks was on Dilantin and nitroglycerine. Det. Thomas told Mr. Mullins that he wanted to make sure that the police got his medication for him. Mr. Mullins said his girlfriend was supposed to bring it, but that he did not know what was going on with that. Mr. Mullins said he was supposed to take it three times a day and had not taken anything that day. When Det. Thomas asked him what happens if he doesn’t take his medication, Mr. Mullins replied that he did not want to talk about his medication. He then immediately returned to the question of bail.

[19] Mr. Mullins then asked whether the police had his DNA and was told they did. Det. Thomas told him that his DNA was identified in semen inside the complainant, and when asked, told Mr. Mullins that the complainant was A.S. This was followed by a long rant by Mr. Mullins in which he attacked the character of the complainant in various ways. He then said, “I’m one sick man. I’m full of cancer … I’ve had two heart attacks.” He complained that he had been mistreated by police officers when he needed his medication. Det. Thomas pointed out that he had started the interview by trying to discuss the medical issues and that Mr. Mullins said he did not want to talk about it. Rather than responding to that, Mr. Mullins launched into further tirades about the unfairness of the charges against him and the bad character of A.S., ending again with the question of bail. Det. Thomas tried to get him to calm down, but Mr. Mullins then said, “You know what’s going to happen is the ambulance is going to take me out of here very shortly because I can’t breathe.” The conversation then returned to more accusations about A.S. and issues about bail.

[20] Towards the end of the interview, Det. Thomas asked if there was anything else he could do for Mr. Mullins, and Mr. Mullins responded that he “wouldn’t mind getting another medication.” Again Det. Thomas offered to arrange that and asked if he should call his girlfriend and have her bring it in. Mr. Mullins then gave a convoluted explanation for why that would be difficult. He said that when he was in the motor vehicle accident the previous day, he took all of the medicine that was in the console of his truck and put it in bags and put the bags into the back of the rental truck. He said that medication included Valium, Percocet and blood thinners. He then said that the reason he could not just send somebody to get the medication was because they would have to open the back door of the truck, go through the tools and find the bags containing the medication. Det. Thomas again suggested calling the girlfriend to get the medication and said, “I’ll do what you want me to do.” Mr. Mullins responded that his girlfriend could be at her mother’s and he did not know the phone number, although he believed it was listed in the phone book under “L. Smith.” Also, he said his girlfriend did not drive, which meant she would have to take taxis and would therefore also have to come to the station first and get his bank card out of his property. Ultimately, it was resolved that Mr. Mullins would call his girlfriend and Det. Thomas would do whatever was necessary to get the medications.

E. ANALYSIS

Case Authority: Voluntariness

[21] I was not referred to, and am not aware of, any case law applying principles of voluntariness in this type of situation.

[22] The burden is upon the Crown to prove that a statement made by an accused person to police is voluntary. The traditional basis for this rule was to ensure that confessions made by an accused were reliable and not induced by some sort of promise or threat that might be seen to undermine that reliability. However, in modern times, the rule has been given a much broader application, requiring a contextual approach.[^3]

[23] The Supreme Court of Canada summarized the relevant considerations in Oickle, as follows (at paras. 69 and 71):[^4]

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.

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 217 (SCC), [1996] 1 S.C.R. 254, at p. 279 (quoting Stein v. The Ship “Kathy K”, 1975 146 (SCC), [1976] 2 S.C.R. 802, at p. 808) (emphasis in Schwartz).

[24] Typically, the main focus on a voluntariness voir dire is on: (a) whether the police have made any threats or promises to the accused person; (b) whether the police treatment of the accused can be said to be oppressive in some manner; and (3) whether the operating mind of the accused can be said to be overborne. However, there must also be a consideration as to whether the method used to obtain the statement, and the circumstances could be said to “shock the conscience of the community, a consideration that frequently, but not always, relates to incidents of police trickery.[^5]

[25] Further, the concern is not merely about the reliability of the statement made, but on the fair trial rights of the accused, including whether his rights to counsel and to remain silent have been respected. In this regard, s. 7 Charter rights are directly relevant to the voluntariness inquiry.[^6]

Application of Voluntariness Principles

[26] In this case, Mr. Mullins was fully advised of his right to counsel and his right to remain silent. As was conceded by defence counsel, there was no breach of his right to counsel. He was transported to the police station and, upon booking, was given an opportunity to speak to counsel of his choice. In fact, he spoke to his lawyer twice, and at his request, police officers also spoke directly to his lawyer on two occasions. After he had received that legal advice, Mr. Mullins chose voluntarily to speak on video-tape with Det. Thomas. He also chose voluntarily to tell Det. Thomas that he was on medication, including Valium.

[27] No threats or promises were made to him during transport, during booking, or during the course of his interview with Det. Thomas. Indeed, the evidence indicates that Mr. Mullins was treated with respect and courtesy throughout his time in custody. This is certainly not a situation in which Mr. Mullins’ will was overborne, as is abundantly clear from his combative manner during his interview. Further, there was no trickery of any kind by the police. To the extent any questions with respect to Mr. Mullins’ medications were raised at all by police, it was solely to ensure that any medical needs he had were met.

[28] Mr. Mullins was well aware of his right to remain silent. Indeed, his initial stance in the police cruiser on the way to the station was to refuse to even reveal his name, stating that he was going to “lawyer up.” He subsequently changed his mind about that, but not as a result of any questioning, threats, promises, or statements made by police. Rather, the decision to provide information to police was his, and his alone, as an exercise of his own free will.

[29] The defence argues that Mr. Mullins’ right to silence was compromised because he needed to disclose his medication to the police for the protection of his own health. It is not necessary for me to determine whether, as a question of law, such a disclosure could be said to be involuntary. In the circumstances before me, there is no factual foundation for this position.

[30] It is clear from the record that Mr. Mullins was more than willing, indeed was eager, to tell the police about his medical conditions and the multiple medications he was on. What is also clear, however, is that his purpose in doing so had nothing to do with a concern for his health, but rather was directed to creating pressure to secure his immediate release from custody. He raised the prospect of being released on his own recognizance almost immediately, while still in the car on the way to the police station. He became quite irate when the police decided to hold him in custody pending a bail hearing.

[31] Mr. Mullins had many opportunities to obtain his medication and/or medical treatment while in custody. He was not interested in doing so until it was apparent to him that he was going to be in custody overnight notwithstanding his efforts to avoid it. At that juncture, he made arrangements to have his girlfriend bring him the medication he said he needed: sleeping pills.

[32] After his arrest, Mr. Mullins was taken to his house while police dropped off his car. He was permitted at that time to speak to his friend Wade. He did not ask to get his medication from his house, nor from his truck. If it was important for him to get the medication, one would expect him to mention it at that time.

[33] Upon booking, standard questions were asked by the desk sergeant about medical concerns. Mr. Mullins readily provided the names of his various medications and said they were in a locked cabinet in his home and that his girlfriend had access to it. He did not indicate at that time that he needed the medication, but rather said that if he started to feel bad, he would let them know.

[34] Subsequently, a police officer offered to drive Mr. Mullins to his house so that he could pick up any medication he needed. He refused that offer. It is logical to conclude from that refusal that he did not have any actual concerns about his wellbeing. Mr. Mullins spoke twice with his legal counsel, two more opportunities for him to obtain his medication without disclosing information to the police. However, when his counsel spoke to the officer about Mr. Mullins’ detention, the argument he advanced for Mr. Mullins’ early release from detention was that he had a business to run, not any health issues.

[35] The most telling circumstance, however, is the incident in which a police officer observed Mr. Mullins to be in some apparent physical distress. If this was a legitimate medical situation, one would again expect Mr. Mullins to want medical assistance. Surprisingly, when the officer offered to get help, Mr. Mullins refused. Even more surprisingly, when an ambulance and paramedics arrived, Mr. Mullins refused to be examined and would not even speak to the paramedics. He is clearly a man who has a strong will and who is not intimidated by police. He is equally clearly a man who was not at all concerned about his health or his need for his medication.

[36] Having voluntarily told the police about his medical conditions and his medications, he then proceeded to rebuff every offer of assistance. After the ambulance was sent away and Mr. Mullins sat down for his interview with Det. Thomas, he was at first resistant to discussing his medical needs at all. When pressed about getting his medications, he gave a convoluted explanation about how difficult it would be to get them, in stark contrast to what he said earlier to the booking sergeant. He also raised concerns about being able to reach his girlfriend, without revealing that her contact information was in his cellphone and his cellphone was in his property bag at the police station. It was only when Mr. Mullins recognized the inevitable – that he was not going to be able to talk the police into releasing him on his own recognizance – that he made arrangements to get his medication. His girlfriend brought the requested medication to the station. He is recorded on video taking that medication. While intimating that the medication was for his heart, it was in fact Temazepam, which is a sleeping pill, and one of the drugs found in A.S.’s system after she was assaulted.

[37] Accordingly, I find on the facts that Mr. Mullins did not disclose his medication because he felt compelled to do so for the benefit of his health, nor did he do so because of any promise, threat, or inducement offered by the police. He independently and voluntarily gave this information to the police as an exercise of his own free will, fully cognizant of his rights.

[38] I find the statements to be voluntary and admissible.

No Violation of Right to Counsel

[39] Although, the defence did not assert any breach of Mr. Mullins’ right to counsel under s. 10(b) of the Charter I have considered whether his statement to the booking sergeant might be inadmissible on this ground, given that he had not yet been given an opportunity to speak to a lawyer. I find no basis to exclude the statement on this ground either.

[40] In this case, Mr. Mullins was advised of his rights, cautioned, and promptly transported to the police station. He indicated in the police car that he wished to speak to a lawyer. There was no questioning of him after that point, save for the routine questions asked on booking. Once booking was completed, he was given the opportunity to speak to counsel. It is clear on these facts and on well-established case law that both the informational and implementational components of the right to counsel were complied with prior to the statement given to Det. Thomas. However, I have considered whether, once an accused has indicated his wish to consult counsel, the obligation of the police to hold off further questioning extends to the routine questions asked at booking. I find that it does not. In this regard, I agree entirely with the reasoning of my colleague Dambrot J. in R. v. Dupe.[^7] In that case, an accused charged with first degree murder was asked a number of health-related questions at booking, similar to those asked of Mr. Mullins in this case. As in the case before me, the questions were routine and were asked for the sole purpose of determining whether there were any health and safety issues that might arise while the accused was in custody at the police station. Dambrot J. concluded that the obligation to hold off questioning applied only to questioning directed towards investigation of the offence and not to inquiries of this nature. He stated (at para. 25), “The fact that the answer to an innocuous question asked for a different purpose may prove to be useful to the Crown does not change the character of the questioning.” Similar conclusions were reached in R. v. Learning (background information for purposes of processing); R. v. Sinclair (whether clothing and a wallet at the location where an accused was arrested were part of his personal property to be taken with him); R. v. Smith (questions about medical condition on booking); and R. v. Hector (place of residence).[^8] Thus, I find that the questions asked at booking did not violate s. 10(b) of the Charter and cannot be excluded from evidence on that basis.

Possible Residual Basis for Excluding

[41] Justice Dambrot reasoned in Dupe that there was no breach of s. 10(b) in obtaining the statements about medical condition at the time of booking, and therefore there could be no basis for excluding the properly obtained statements. In this regard, he disagreed with the conclusion of Trafford J. in Sinclair that although there had not been a s. 10(b) breach, statements made at booking about medical conditions were conscriptive, undermined the defendant’s right to silence, and should be excluded from evidence on that basis. A similar conclusion was reached by MacDonnell J. in Hector. He agreed with the reasoning of Dambrot J. in Dupe that statements obtained at booking did not offend s. 10(b) of the Charter, but held that they should still be excluded to preserve the fairness of the trial. He stated at para. 23:

. . . The fact that responses that a detainee has made to a booking sergeant were not obtained in a manner that infringed his rights under the Charter does not necessarily mean that to admit those responses in evidence would not give rise to Charter concerns. Had the booking sergeant been attempting to elicit evidence in relation to the offences, Mr. Hector’s responses would clearly have been obtained in violation of s. 10(b). Notwithstanding the general duty to hold off that would otherwise have applied, the booking sergeant’s questions are permitted because they are not aimed at acquiring evidence. To allow the answers to be used as evidence would overshoot the bounds of the permission, would offend the principle against self-incrimination and would tend to render the trial unfair. In my view, the reasoning of Moldaver in R. v. Milne (1996), 1996 508 (ON CA), 107 C.C.C. (3d) 118 at paragraphs 25-29 and Justice Doherty in R. v. Suberu, 2007 ONCA 60, at paragraph 61 (affirmed without reference to this point, 2009 SCC 33, 2009 SCC33), provides support for this conclusion.

[42] In my view, there is a compelling argument that a statement made voluntarily and without any breach of s. 10(b) might still be excluded in order to preserve trial fairness. However, based on the underlying facts, I do not consider the case before me to fall into this category. Mr. Mullins’ answers to the questions at booking were not conscriptive, nor did they infringe his right to remain silent. He was keen to talk about his medical conditions and his medications in order to advance his arguments for early release from the police station. It does not, in my view, offend trial fairness to use those statements against him at trial.

Alternative Grounds for Admitting the Evidence

[43] In light of my conclusions above, it is not necessary to consider s. 24(2) of the Charter. However, if I had found a Charter violation in respect of the statements made by Mr. Mullins to police, I would nevertheless have found the statements to be admissible on the test established in R. v. Grant.[^9]

[44] This is not a case in which the seriousness of the state conduct warrants exclusion of the evidence. The police acted throughout in good faith. The questions asked at booking were aimed solely at determining any health and safety risks for Mr. Mullins. Likewise, all subsequent discussions with Mr. Mullins on this issue were solely for his well-being. When Mr. Mullins disclosed his health issues and medications, the police did everything possible to assist him in getting treatment if required and to obtain his medications for him. This had absolutely nothing to do with any investigative steps in the proceeding.

[45] Given Mr. Mullins’ desire to use his health status to obtain his release, the impact on him of the disclosure is not significant. Having said that, I do realize that conscriptive evidence and any violation of the privilege against self-incrimination are, generally speaking, more serious in terms of their impact on the accused than is the case for physical evidence. However, the circumstances of the disclosure in this case are not the norm. The information is personal and sensitive, but the disclosure was freely and deliberately made. Further, if Mr. Mullins had not freely disclosed his medications, the police would have been able to obtain the same information through a search warrant or an application to obtain access to his health records. Given the toxicology results and the nature of the charge, these would have been logical investigative steps regardless of any voluntary disclosure by Mr. Mullins.

[46] Finally, I have considered whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. The evidence is reliable and probative of an important aspect of the Crown’s case – Mr. Mullins’ ready access to the drugs found in the complainant’s system. That said, exclusion of the evidence would not result in the dismissal of the charge given the strength of the Crown’s case and the nature of the defence put forward by Mr. Mullins. This is a serious crime – rendering a vulnerable teenager unconscious by the administration of a drug and then brutally raping her. Proving such cases is often extremely difficult because of the lack of forensic evidence and the inability of the complainant to remember what happened to her. There is a strong public interest in ensuring that such cases are tried on their merits. In my opinion, the administration of justice would be undermined by excluding such evidence in all of the circumstances, and is not adversely affected by its admission.

[47] Accordingly, if there had been some breach of Mr. Mullins’ rights in respect of this medical information, I would nevertheless have admitted the evidence.

[48] I find the Crown has met its onus of proving that the statements made by Mr. Mullins were voluntary. Although conceded by the defence, I have considered whether there was any breach of s. 10(b) and find there was not. Further, I find that the admission of this evidence does not undermine Mr. Mullins’ fair trial rights. Accordingly, the statements are admissible.

MOLLOY J.

Released: March 10, 2015

CITATION: R. v. Mullins, 2015 ONSC 1552

COURT FILE NO.: CR-14-30000382-00

DATE: 20150310

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MICHAEL MULLINS

Defendant

REASONS FOR DECISION

(Voluntariness of Statement)

Molloy J.

Released: March 10, 2015

[^1]: This friend’s name was Wade Clow. He lived as a boarder in Mr. Mullins’ house, and also did work with Mr. Mullins on occasion.

[^2]: Although nothing turns on this point, Dilantin is not in fact a beta-blocker.

[^3]: R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38 at paras. 47, 57, and 67-71; R. v. Spencer, [2007] 1 S.C.R. 500, 2007 SCC 11 at paras. 11-15

[^4]: R. v. Oickle, supra, at paras, 69 and 71

[^5]: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405; 2007 SCC 48 at para. 35

[^6]: R. v. Singh, at paras. 38-40

[^7]: R. v. Dupe, 2010 ONSC 6594

[^8]: R. v. Learning, 2010 ONSC 3816, per Code J.; R. v. R. v. Sinclair, 2003 BCSC 2040, aff’d BCCA 127: aff’d 2010 SCC 35; R. v. Smith (2007), 2007 24098 (ON SC), 163 C.R.R. (2d) 41 Ont. S.C.J. per Trafford J.; R. v. Hector, 2014 ONSC 2037, per MacDonnell J.

[^9]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353