R. v. Flanagan, 2015 ONSC 2513
CITATION: R. v. Flanagan, 2015 ONSC 2513
COURT FILE NO.: CR-14-88
DATE: 2015/04/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RYAN FLANAGAN
Counsel:
Elaine Evans and Isabel Blanchard, Counsel for the Crown
Kimberly Hyslop, Counsel for the Accused
HEARD: March 23, 24 and 26, 2015
REASONS ON MOTION
LEROY, J.
Introduction
[1] Mr. Flanagan is charged with attempt murder. He seeks an order excluding the “statement” made to police on May 10, 2014.
[2] The issues on the voir dire concerning the admissibility of the statement to police are:
- Whether it was made voluntarily in accordance with the common law;
- Whether the failure to record or accurately record the gist of the audio portion of the statement infringe Mr. Flanagan’s section 7 and 11(d) Charter rights;
- Whether allowing the Crown to use the statement for any purpose infringes Mr. Flanagan’s s. 7 and 11(d) Charter rights;
- Whether the statement should be excluded pursuant to section 24(1) of the Charter as the appropriate remedy for the Charter breaches.
- Whether the audio recording deficiencies in the audio recording are such that it should be excluded from evidence under the aegis of the prejudicial effect/probative value analysis.
[3] The onus of proof on the first issue is beyond reasonable doubt borne by the Crown. The accused bears the onus on the Charter issues to proof on a balance of probability.
[4] Mr. Flanagan did not testify on the voir dire.
[5] The statement was video recorded. The audio was not. The interview room recording equipment had been replaced recently before the interview and during installation the information technologist reversed the audio input between interview rooms. The result was that when the recording equipment for the room used was activated, auditory input derived from the contiguous interview room. When dialogue between Mr. Flanagan and Detective Joseph animated, trace recording can be heard in playback.
[6] Detective Joseph relied on the recording equipment to record the substance of the statement and his notes were generated as interrogation aid without regard to accurate or reliable recording of substance.
Voluntariness
[7] The communication between Mr. Flanagan and Detective Joseph was made voluntarily.
[8] A confession is an oral or written communication or statement by an accused to a person in authority, proffered by the Prosecution as part of the prosecution case to establish any fact in issue necessary to prove the accused’s guilt. The confession rule applies equally to inculpatory and exculpatory statements. The principle rationale to the confession rule is reliability. Is it reliable and trustworthy? There is also concern for fairness in the investigative process.
[9] Whether a statement made by an accused to a person in authority is voluntary requires an examination and evaluation of all the circumstances surrounding the making of the statement. The approach is contextual to protect the rights of the accused without unduly limiting society’s need to investigate and solve crime.
[10] The burden of proof rests with the Crown to the standard of beyond reasonable doubt. Statements are presumed involuntary. A dearth of evidence of circumstances results in exclusion. Relevant factors include, and are not limited to, evidence of threats, promises, oppression, assessment of an operating mind and police trickery. Issues of police trickery involve stand-alone review. The other considerations are variants in the same matrix.
[11] The operating mind evaluation requires only that the accused knew what he was saying and its potential for use to his detriment.
[12] Of the relevant factors that can vitiate voluntariness of a confession, there are no indications of threats or promises, quid pro quo, oppression, deficits to an operating mind or police deception or trickery. His rights were communicated to him and he was cautioned. He asked to speak to a lawyer before the interview and did for one minute.
[13] Detective Joseph recalled that Mr. Flanagan asserted his right to remain silent.
Effect of inaccurate or incomplete audio recording on voluntariness
[14] The state of the law is that the accuracy and completeness of the record of a voluntary statement is an issue of weight that is determined at trial. However, the accuracy and completeness of the record of the circumstances surrounding the making of the statement can relate to proof of voluntariness on the voir dire – R. v. Learning, [2010] ONSC 3816, Code J. para. 62; R. v. Moore-McFarlane (2001), 2001 ONCA 6363, 160 C.C.C. (3d) 493 at para. 67 (Ont. C.A.), Charron J.A.
[15] Mr. Justice Code wrote further that this is not an easy distinction to apply, especially where no evidence is called by the defence on the voir dire as it may be unclear whether the defence is raising issues of voluntariness or accuracy.
[16] Here, as was the Court in the Learning, I am satisfied Mr. Flanagan was treated appropriately and respectfully from the first contact to arrest and transportation, cell block processing through to the interview. The officers assiduously honoured Mr. Flanagan’s Charter rights on detention and arrest. By way of contrast, there were issues of voluntariness in Moore-McFarlane and R. v. Li, [1997] O.J. No. 4237 raised by the evidence on the voir dires.
[17] In Learning, the issue was resolved in favour of voluntariness and the utterances excluded as remedy for a combination of Charter breaches and questionable reliability of Sgt. Schoch’s notes.
[18] I am satisfied the real issue raised by the defence on the voir dire concerns the accuracy and completeness of the audio record and Detective Joseph’s notes. To the extent that the audio recording and interview notes can be considered a statement for confession rule consideration, I am satisfied the Crown proved the voluntariness of the statement at common law. The unreliability of the audio record and officer notes are central to the prejudicial effect and probative value assessment to follow.
Charter s. 7, 11(d): Prejudicial Effect/Probative Value
[19] This is not a lost evidence or defective disclosure case. It is a compromised investigation. The audio recording never was, save for brief fragments when voices were raised. Detective Joseph did not record notes of the interview to document content of the statement. He jotted points he hoped to raise within the interview and to “buy time”. His notes were made for investigative advantage without concern for potential use as reliable record of a statement. He could not correlate his notations to different points in the video. His observation of the video was as empty of interpretation as it was to the courtroom observers. No one was tasked to audit the interview and take notes. There is no documentary record of what they talked about over the 25 minutes involved.
[20] There are no indications of bad faith. Detective Joseph followed the same protocol he always did. He activated the system as he always did, observed the recording indicator and began the interview. The deficit lay in technician error and neglect to properly test the installation. It is not a case where the police had access and deliberately chose to eschew electronic recording. Detective Joseph relied on the recording equipment to record what was said. The defective quality of Detective Joseph’s notes of the interview necessarily impacts on the reliability of his testimonial assertions and is an important factor to consider whether to rely on his version of the gist of the voluntary discussion.
[21] The absence of verbatim notes of a statement by an accused to a police officer does not render the police officer’s testimony of what the accused said inadmissible. Generally, all relevant evidence is admissible. Detective Joseph made the briefest of notes important to his purposes. There was no attempt to develop a complete rendition, one that might inform context. The officer does not claim reliability or accuracy of his notes.
[22] An exhibit is as integral to the evidentiary record as oral testimony. When a recorded confession is ruled voluntary, the entirety of the record content is potentially admissible at trial. The exhibit can be a two-edged sword bringing positives and negatives to the prosecution case. Substantially incomprehensible taped exhibits raise admissibility issues. Threshold reliability demands more than random discernible fragments. A conclusion about the gist of their conversation from the audio snippets involves too much guess work. To get reliable gist of fragments requires context; otherwise, the exercise runs unreasonable danger of unsafe conclusion based on a defective record.
[23] The probative value of the audio snippets is nominal and significantly overwhelmed by the prospect of prejudicial effect to trial fairness. Any time anyone overhears voice fragments the prospect for forming the wrong impression is more likely than not.
[24] The case at bar is distinguishable from the circumstances in R. v. Forslund, [2007] B.C.J. No. 755 per Justice Romilly and R. v. Menezes (2001), 2001 ONSC 28426, 48 C.R. (5th) 163, per Justice Hill. There, the dialogues between the State agent and the accused were not recorded or reduced to writing. The witnesses were allowed to testify to the gist of the accused’s statement. The fact of testimonial reporting of the conversation based on memory goes to weight as it does with any witness. In the case at bar, it is the gist itself that is inherently uncertain from the discernible sound bites. Detective Joseph candidly acknowledged he is unable to reliably correlate discussion topic with the video.
[25] In summary, I am not convinced the deficiencies in the recording audio and officer notes constitutes breach of the accused’s rights under ss. 7 and 11(d). The “lost evidence” jurisprudence derives from different Stinchcombe constitutional premises and transparency concerns. Charter considerations are not raised in the jurisprudence in relation to the effects of inaccurate or incomplete recordings. Deficits in the investigative process are common and bring consequences that are sometimes fatal to proof beyond reasonable doubt.
Conclusion
[26] The result is that the audio component of the video, such as it is, is inadmissible.
[27] The silent video component is real evidence and is admissible.
[28] Detective Joseph may testify in respect to the gist of the interview with Mr. Flanagan. The accuracy and reliability of his evidence as to gist of the conversation is a question of fact.
Justice Rick Leroy
Released: April 17, 2015
CITATION: R. v. Flanagan, 2015 ONSC 2513
COURT FILE NO.: CR-14-88
DATE: 2015/04/17
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Ryan Flanagan
REASONS ON MOTION
Justice Rick Leroy
Released: April 17, 2015