ONTARIO SUPERIOR COURT OF JUSTICE

CITATION: R. v. Martineau, 2015 ONSC 2599
NEWMARKET COURT FILE NO.: 12-00002982
DATE: 20150420

BETWEEN:

Her Majesty the Queen

– and –

James Martineau, Defendant

COUNSEL:

Peter Westgate and Gemma Sang, for the Crown (Voluntariness Applicant)
Corbin Cawkell and Aliki Yorgiadis, for the Defence (Charter Applicant)

HEARD: March 30, 31 and April 1, 2, 2015

RULING ON ADMISSIBILITY OF STATEMENTS

RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

gILMORE J.:

Introduction

[1] Mr. Martineau is charged with the first-degree murder of Ivan Davison.

[2] Mr. Martineau resided in Brampton with Mr. Davidson and his mother, Wendy Martineau, in an apartment. Mr. Davison was their roommate. It is alleged that Mr. Martineau killed Mr. Davison between December 23rd and December 24th, 2011. The Crown alleges that the murder was planned and deliberate and included torture, stabbing, burning, blunt force trauma and dismemberment. After murdering Mr. Davison, the Crown alleges that Mr. Martineau stored his body in a recycling bin and then with help of his friend, Rian McLean, dumped the body in a ditch.

[3] Mr. Martineau was arrested at Union Station on December 30, 2011 as he disembarked from a train coming from Montreal. He was transported to 4 District of York Regional Police. The entire arrest and transport to 4 District is recorded on audio. Upon reaching the police station, Mr. Martineau was placed in an interview room and his statement was videotaped.

[4] The Crown seeks to admit both the audio and the videotaped statement as part of their case. They apply to do so on the grounds that the audio and videotaped statements of Mr. Martineau were voluntary based on the well-known principles set out in R. v. Oickle, [2000] S.C.C. 38.

[5] The defence objects to the recordings and statements being admitted into evidence based upon violations of s.10(b) and s.7 of the Charter for the following reasons:

(a) It is unclear whether Mr. Martineau knew he was being audiotaped.

(b) The first thing Mr. Martineau says to police is “I have nothing to say.”

(c) Although told he was being charged with murder, it was not until he was before the booking sergeant that he knew what type of murder.

(d) The caution given to Mr. Martineau at the beginning of the videotape was deficient, both with respect to content and timing.

(e) Police continued to press and question Mr. Martineau despite repeated assertions of his right to remain silent and requests to be taken to his cell.

(f) Mr. Martineau was sleep deprived and expressed that this affected him to the point where he was having auditory hallucinations.

(g) The interview went on for 5.5 hours and only when Mr. Martineau threatened to “smash something” did the interview end and he was taken to his cell.

THE STATEMENTS

[6] Mr. Martineau was arrested on December 30, 2011 at Union Station in Toronto. The Crown called Detective William Courtice, Constable James Ward and Constable Jean-Luc Perreault to give evidence about the arrest and the statements.

[7] According to Detective Courtice, approximately 20 plainclothes officers from Toronto, Peel Region and York Regional Police gathered at Union Station to be briefed by VIA security, senior officers and to receive a photograph of Mr. Martineau.

[8] Constable Perrault testified that he had seen the train manifest and knew that there were approximately 350 people on the train. He had noted that Mr. Martineau’s sister and her fiancé were listed on the manifest, so he was fairly certain that Mr. Martineau would be on the train. Constable Perrault had arrested Mr. Martineau three times in the past and had many other encounters with him while on duty in Brampton. He was certain he would be able to recognize Mr. Martineau. Constable Perrault knew that Mr. Martineau could be violent, sometimes carried weapons and had run from police in the past. However, once caught he became subdued.

[9] The train arrived at 4:23 p.m. Constables Ward and Perreault had been waiting at the end of the platform. Constable Perreault recognized Mr. Martineau almost immediately and began running towards him. Constable Ward grabbed Mr. Martineau’s right arm and then handcuffed him. He advised Mr. Martineau that he was under arrest for murder. He could not hear if Mr. Martineau responded as it was too noisy on the platform. Disembarking passengers were pushing through and the scene was somewhat chaotic. At this point, Constable Perrault was on top of Mr. Martineau and warning him not to fight. He told Mr. Martineau he was charged with second degree murder.

[10] Constable Perrault testified that as he was standing Mr. Martineau up, an officer on his right read Mr. Martineau his rights and Mr. Martineau appeared to understand them. Constable Ward testified that he heard the same thing. However, neither officer knew which officer had read Mr. Martineau his rights and this was not captured on the audiotape as Detective Courtice was not yet present with the recording device.

[11] Mr. Martineau was then searched. At this point, Detective Courtice approached Mr. Martineau with the recording device in his hand. He advised Mr. Martineau that he was under arrest for murder that the arrest was being taped. Detective Courtice’s evidence was that as he was saying this, he had the recording device in his hand and in front of his face and the audio recorder would have been clearly visible to Mr. Martineau. Detective Courtice asked Mr. Martineau if he understood he was being arrested for murder. Mr. Martineau responded “Yeah. I have nothing to say.”

[12] Detective Courtice then gave the recording device to Constable Ward. Detective Courtice and Constables Ward and Perreault then escorted Mr. Martineau out of Union Station to a waiting police car. The recording device remained on throughout. During this time, Constable Perrault asked Mr. Martineau if he intended to use the same criminal defence lawyer he had used in the past, one Mr. McCullough. The officers waited while Mr. Martineau had a cigarette. Mr. Martineau asked the officers how they knew he was on the train. There was no clear response from Constable Perrault to this question, but what is clear is that no conversation of consequence took place while Mr. Martineau was being escorted out of the station. There was certainly no conversation relating to the offence or the allegations.

[13] When they reached the waiting police vehicle, Mr. Martineau was placed in the back seat with Detective Courtice. Detective Froud drove. At this point Constables Ward and Perrault withdrew and had no further contact with Mr. Martineau. Detective Courtice sat in the back seat with Mr. Martineau as it was an unmarked car without a cage and for driver safety reasons Detective Courtice was required to sit with Mr. Martineau. Constable Ward gave Detective Courtice the recording device which he placed in plain view on top of his notebook on his lap and told Mr. Martineau that the recorder was still going.

[14] The police vehicle remained stationary while Detective Courtice readied himself to read Mr. Martineau his rights to counsel and the primary and secondary caution. Mr. Martineau had been arrested before and knew what was coming. So before Detective Courtice began reading, Mr. Martineau asked him to write down his lawyer’s name and phone number. He said to Detective Courtice, “Tell him if he can’t handle a homicide case to put me on the best who can.” Detective Courtice responded, “All right.” Mr. Martineau then said, “Am I bein’ charged with just homicide or is it homicide, mutilation after the fact, dismemberment, all that other stuff? What is it? ...I need to know my charge.” Detective Courtice responded that he was being charged with the murder of Ivan Davison and then proceeded to read him his rights to counsel. Mr. Martineau responded that he wished to call his lawyer right away. Detective Courtice assured him that arrangements would be made for Mr. Martineau to do so once they were at the station. Detective Courtice then read both cautions to Mr. Martineau. The rights to counsel and caution were read from the pre-printed portions of the detective’s notebook and reflected the standard and required wording.

[15] Detective Froud then left Union Station and began to drive Mr. Martineau and Detective Courtice towards the police station in Woodbridge where Mr. Martineau was to be booked. During the course of the car trip, Mr. Martineau was asked if he was on any medication to which he replied he had taken the balance of his Percocets (50) on Monday. At this point, Mr. Martineau asked if he could ask an “off the record” question. Detective Courtice replied that Mr. Martineau continued to be recorded so that there could not really be any “off the record” discussion. Having been told he was being recorded, Mr. Martineau proceeded to ask Detective Courtice whether his mother was being held by Peel Police or York Regional Police. Detective Courtice explained that Wendy Martineau was being held by York Regional Police.

[16] At that point, Detective Courtice decided to call Mr. Martineau’s lawyer. There was no answer so he called back and left a message. Some further conversation took place between Mr. Martineau and Detective Courtice which consisted of neutral subjects such as when Mr. Martineau had last eaten, that he would be able to have a cigarette once back at the station and that Mr. Martineau thought he might have pneumonia. They arrived at 4 District at 5:28 p.m.

[17] Upon arrival at the station, Mr. Martineau was given the opportunity to have a cigarette in the parking bay and was advised by Detective Courtice that once inside the station, he would be recorded on both audio and video. Mr. Martineau was then paraded in front of the booking officer who told him he was under arrest and asked if he understood his rights to counsel. Mr. Martineau replied that he did. Mr. Martineau was then searched and told by Detective Courtice that when he was speaking to his lawyer he should tell him that he had been arrested for second degree murder.

[18] When the search of Mr. Martineau is finished, Detective Courtice reminded him again that everything that was said and done at the station was recorded on audio and videotape. Mr. Martineau replied, “okay.” Mr. Martineau was then taken to use the washroom and to a private room to speak to duty counsel, as his own lawyer was not available.

[19] Mr. Martineau was then placed in the interview room and he and Detective Courtice shared a McDonald’s meal together. They engage in casual conversation while eating. Once they finish eating, Detective Courtice gave Mr. Martineau the secondary caution as follows, “If you have spoken to any police officer, or to anyone with authority, or if any such person spoke to you in connection with this case, I want it clearly understood that I don’t want it to influence you making a statement. Do you understand that?” Mr. Martineau replied, “Yeah.”

[20] During the course of the videotaped interview, Mr. Martineau made a number of confessions and also stated many times that he did not wish to speak to the police.

[21] With respect to confessions or indirect confessions – they were numerous. Some of the more significant ones are noted as follows:

(a) “My sister Barbara is scared shitless that I was gonna come to Woodbridge and kill her, too.” (p.22).

(b) “Doesn’t matter why I did it, the courts’ll find out. You’ll find out at that time, too. If the answer means so much to you.” (p.29).

(c) Detective Courtice, “You took it [Ivan Davison’s life].” Mr. Martineau, “But I had my reasons.” (p.32).

(d) “…I know my mother and my best friend have been charged as accessories or counterparts of whatever, for something that I did by myself.” (p.33).

(e) Detective Courtice, “She [Wendy Martineau] got rid of it [the finger].” Mr. Martineau, “She wasn’t supposed to find it….If I had known she’d take the finger with her I wouldn’t have let her take it.” (p.33).

(f) “I couldn’t just leave him [Ivan Davison] sitting there on the ground…wrapped up in a bed sheet…I wouldn’t have made it a week if I had’ve done that.” (p.36).

(g) “I think he [Rian McLean] thought he was going to get killed himself.”

(h) “I know what I did. You know what I did. You just don’t know why.” (p.51).

(i) “It’ll be there that I’ve taken another man’s life. It’ll always be there. I will always get sideways glances from people I’ve known. They’ll always be like, He’s a murderer. He killed somebody. Won’t tell anybody why.” (p.53-54).

(j) “I had my doubts as to his making it to the morning. And that’s why I went back three hours later. And he was still breathing and talking… But when I went back in the morning, it was like touching cold metal.” (p.60).

(k) “The stores downstairs from my house were open when I left with his corpse in the [inaudible].” (p.61).

(l) “I think anybody who takes it upon themselves to come and touch somebody while they’re sleeping deserves whatever they get.” (p.63).

(m) “I didn’t jump, I stepped on him [Ivan Davison]. And then he said he thought he was having a heart attack, so I just kicked him and told him to shut the fuck up.” (p.77).

(n) “Mom doesn’t deserve to be in prison for something I did.” (p.85).

(o) “I took everything with me. The body and the bin. Then I put the body somewhere, grabbed the car, put the body in the car.” (p.89).

(p) “I scattered everything I was wearing when I killed him [Ivan Davison] in Peel garbage cans all over Peel.” (p.91).

(q) “But I’ve also got (ph) 15 to 20 year sentence that I’m gonna be looking at if I give you guys all the answers you want….I’m tryin’ to still accept the fact that I’m a murderer.” (p.5, Tab 3).

[22] With respect to Mr. Martineau confirming his right to remain silent, the following is of note in his statements:

(a) “Yeah. I have nothing to say.” (p.2, audiotaped statement).

(b) “I don’t know how much talking we’ll be doing.” (p.5, videotaped statement).

(c) “You’re not gonna hear nothing more from me from this point on. I’ve spoken to duty counsel…I’m just going to lay my head here, or in my cell, and I’m gonna go to bed until I go to court.” (p.9)

(d) “I don’t need to talk about anything.” (p.11).

(e) “And other than that, I’d like to be placed back in my holding cell.” (p.13).

(f) “Then don’t mind if I fall asleep to your story…I was told by duty counsel that I have the right to remain silent and that’s what I’m gonna do… And she said even though it is a right, I should just shut up. Period. I shouldn’t even talk to anybody here. (p.14).

(g) “My family and friends can come visit me in the pen and ask me why themselves. I don’t need to tell you. And I’m not gonna tell you….Yup my opportunity is when I’m sitting in the court room defending myself, not this little room here where you’re trying to gather more evidence. (p.20).

(h) “So unless my attorney’s present, this can – conversation’s over for me.” (p.22)

(i) “You’re here charging me with second degree murder and you need answers and I’m not gonna give them to you.” (p.24).

(j) “So stop asking me why. Please. Or I’ll make it know to my lawyer even though I’ve decided to remain silent, you’ve continued to ask me questions. (p.25).

(k) “I have the right to remain silent. I choose to exercise that right.” (p.26).

(l) “I’m not telling you shit.” (p.28).

(m) “The only thing that matters to me right now is remaining silent.” (p.29).

(n) Detective Courtice, “Why would you cut a man’s finger off? What did he do?” Mr. Martineau, “I’ll tell that to a doctor or a psychiatrist or a judge, but won’t be telling that to you.” (p.42).

(o) “I told you that already, so stop fucking asking me. Choosing to exercise my right to remain silent. So stop asking me questions.”(p.44).

(p) “I’d like to go back to my cell. I got a lot to think about. I can’t do that in here. The room’s – the walls are just too big.” (p.78-79).

(q) “I asked you to put me back in my cell so I can think. You came back with Gatorade.” (p.80).

(r) “Can I go back to my cell please?” (p.85).

(s) “Get me the fuck out of this room before I smash something….I’m tired of you asking me questions. I ask you to leave me alone. I have the right to remain silent and you’re still asking me questions.” (p.93).

(t) “If in ten hours you want to wake me up and ask me some more questions, then so be it - that’s the future…” (p.94)

[23] At times, Mr. Martineau made statements or was physically demonstrative about his state of mind during the videotaped statement. For example, at the beginning of the interview, he asked if he could lie on the floor claiming he was exhausted. At other times during the interview, he covered his face with his t-shirt and curled up into a fetal position as if he intended to rest or sleep. About two hours into the interview, Mr. Martineau told Detective Courtice that he had slept “maybe forty-five minutes” in the last week and that he needed to lay down because he was starting to have “auditory hallucinations.” Shortly after this, however, he said to Detective Courtice, “If you bring me a dart, we might be able to talk a little more.” (p.55). At two hours and thirty-seven minutes into the interview, Mr. Martineau said, “I’m not functioning very well – on very many hours sleep…so I’m not really functioning well.” (p.72). And then at about three hours and twenty-six minutes into the interview, “That’s all I want. I just want to lay down…I just – I’m hearing shit.” (p.94). Shortly after this, he is taken to his cell. The videotaped statement lasted approximately three and a half hours.

THE POSITION OF THE CROWN

[24] The Crown submits that both statements were given voluntarily, with Mr. Martineau being fully aware of his right to counsel and his right to remain silent.

[25] With respect to the audio statement, the Crown points out that immediately upon the audio recording being started, Detective Courtice tells Mr. Martineau he is charged with murder and asks him if he understands. Mr. Martineau says that he does understand but that he has nothing to say. The Crown submits that Mr. Martineau acknowledged having received his rights and exercised them by indicating he had nothing to say. Further, it cannot escape comment that Mr. Martineau has been arrested a number of times before. While this does not absolve or alleviate the police of their obligations under s.10(a) and (b) of the Charter it is clear that Mr. Martineau is aware of the arrest and rights giving process and was certainly not new to it.

[26] The defence is seeking to exclude the utterances made by Mr. Martineau on the audiotape when he interrupts Detective Courtice before he has received his rights and asks, “Am I bein’ charged with just homicide or is it homicide, mutilation after the fact, dismemberment, all that other stuff? What is it? ...I need to know my charge.” The Crown submits that this was a spontaneous utterance and relevant to motive, intent, animus and the identity of the killer. The Crown acknowledges that the defence will argue that Mr. Martineau could have obtained information about dismemberment or mutilation from the community at large or circulating rumours. The Crown submits that even if this is the case, it goes to the weight of that evidence and not its admissibility.

[27] It is clear that Mr. Martineau knew he was being audiotaped during his arrest and during his transport to the station. Detective Courtice’s uncontradicted evidence was that the audio recorder was held up for Mr. Martineau to see when he was arrested and was in plain view on Detective Courtice’s notebook while he was sitting beside Mr. Martineau on the way to District 4 station. Further, when Mr. Martineau asks Detective Courtice if he can say something “off the record” while they are on the way to the police station, Detective Courtice points out that nothing Mr. Martineau says is “off the record” because everything is being recorded.

[28] The Crown is aware of the defence argument that the audiotape of the arrest and transport to the station is meant to protect only the police from allegations of improper behaviour. The Crown submits that that is only one function of such recording and that it has a more global purpose of recording everything that is said and done to protect all parties involved. The development of recent case law goes so far as to allow an adverse inference to be drawn where arrests and statements are not taped when the ability to audio and/or videotape all interactions with an accused (especially for serious matters such as murder charges) is easily arranged.

[29] With respect to the videotaped statement, the Crown submits that the secondary caution given to Mr. Martineau was appropriate and adequate. Mr. Martineau was given his primary and secondary caution in the police car at 4:43 p.m. He clearly understood as he indicated he did not intend to say anything to police. He was given a secondary caution once at the station because he had been in contact with other officers. Mr. Martineau is fully aware of what is going on as he tells the police that he knows they are “trying to gather more evidence” (p.20) and says shortly after this “I refuse to answer your question” (p.20).

[30] The Crown argues that there must be a balance between the right to silence and the state’s duty to investigate. In this case, Mr. Martineau willingly spoke to police. His will was never overborne by police because he is the one who often asks questions or initiates conversation. When he asks to go back to his cell near the end of the interview, it is because he says he wants to think, not because he says he wants to remain silent. The Crown refers to R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48, for the proposition that the number of times an accused confirms that he or she wishes to remain silent is not determinative of a section 7 breach. In this case, Mr. Martineau chose which questions he wanted to answer and which ones he did not. In doing so, he freely exercised his will and was not overborne by police. Detective Courtice also acknowledged Mr. Martineau’s right to silence several times during the videotaped interview.

[31] Further, at no time did police conduct interfere with Mr. Martineau’s choice whether to speak to police. He was hungry when he got to the station and was fed a meal. He was taken to the bathroom and given an opportunity to speak to his lawyer in private. He complained of being tired but then (at p.54/55) he negotiates with Detective Courtice and says he will continue to talk if he is given the opportunity to have a cigarette. After that he appears alert and talkative.

[32] There are several times on the videotape where there are silences of between 30 seconds and 3 minutes. On these occasions, it is Mr. Martineau who restarts the conversation. The Crown submits that this is further confirmation of Mr. Martineau choosing when he wants to speak and when he does not.

[33] With respect to the issue of voluntariness, the Crown submits that voluntariness has been proven beyond a reasonable doubt in consideration of the well-known test in R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38. It is clear from the videotape there is no evidence of threats, promises or inducements – either implied or direct.

[34] With respect to oppressive circumstances, the police were courteous to Mr. Martineau. He was not deprived of food or water and the temperature of the interview room was neither too warm nor too cold. While it is true that Detective Courtice’s actions in some way were meant to gain Mr. Martineau’s trust, such behaviour does not mean that the statements from Mr. Martineau are not voluntary.

[35] With regard to Mr. Martineau’s state of mind, there was some dispute over whether he was asleep at certain periods when Detective Courtice was out of the room. The Crown submitted that Mr. Martineau was never asleep. He was yawning and sometimes lying on the floor but even when his eyes are closed he appears to rouse at times, and then becomes responsive when Detective Courtice re-enters the room. The Crown also adverts to Mr. Martineau’s change in behaviour when he says he will continue to talk if he is given a cigarette. After that he becomes alert. He also engages Detective Courtice in certain personal conversations about his childhood sexual abuse, jelly beans and the Detective’s wedding ring; all of which are indicative of Mr. Martineau having an operating mind.

[36] In summary, there is no evidence of threats, promises or inducements. The statements were freely given without police trickery and without the existence of any oppressive circumstances. Mr. Martineau had an operating mind at the relevant time and was functioning at or above the required cognitive capacity required by the case law. Therefore, voluntariness has been proven beyond a reasonable doubt and both the audio and videotaped statements should be admitted into evidence as part of the Crown’s case.

THE POSITION OF THE DEFENCE

[37] The defence takes the position that the total interview (including the audiotaped portion) lasted over five and a half hours. Mr. Martineau begins the interview by telling police he has nothing to say and ends it by saying he will smash something if he is not taken to his cell. It is incorrect for the Crown to argue that Mr. Martineau is an experienced criminal and therefore familiar with arrest procedures and investigative techniques. The defence submits there is little or no evidence to suggest that Mr. Martineau has ever given a statement in the past or been subjected to a similar interrogation.

[38] The defence argues that Mr. Martineau asking for a cigarette near the end of the interview in exchange for answering more questions is not indicative of his talking freely, but demonstrates that he had simply given up trying to exercise his right to silence. What he really wanted to do was to sleep as he told Detective Courtice several times; but the questioning persisted. It can be nothing other than oppressive circumstances when Mr. Martineau has to threaten to smash things before the interview is ended.

[39] The defence submits that the secondary caution given to Mr. Martineau at the beginning of the interview was inadequate. He had been given both cautions an hour and a half before. Given that the police were now clearly intending to attempt to obtain a confession from Mr. Martineau, he should have been given the full warning in both the primary and secondary cautions.

[40] According to the defence, the interview should have ended about one hour after it started, when Mr. Martineau made it clear that he was refusing to answer questions. Going beyond that was simply manipulation on the part of Detective Courtice. Further, it resulted in oppressive circumstances as can be seen by Mr. Martineau talking in non-sequiturs, curling up in a fetal position on his chair and asking to be allowed to sleep while in handcuffs for much of the interview.

[41] It is clear that Mr. Martineau is dozing off or in and out of consciousness for parts of the interviews and, at times, when Detective Courtice was out of the room. But the questioning continued until Mr. Martineau had to make threats before being taken to his cell. Further, it is disingenuous for Detective Courtice to suggest that he only wanted to give Mr. Martineau the chance to tell his side of the story. Clearly, everything pointed to trying to get a confession from Mr. Martineau with directions coming from senior officers in charge of the investigation.

[42] With respect to the utterance made about dismemberment during the audio portion of the statement, this is not an utterance but relates to the jeopardy in which the accused finds himself. At that point, Mr. Martineau knew his mother had been arrested and charged with being an accessory after the fact and he knew that there were rumours in the community about mutilation. At this point, Mr. Martineau had not spoken to a lawyer although clearly he wanted to. The defence relies on R. v. Plaha, 2004 ONCA 21043, 189 O.A.C. 376, for the proposition that any statement obtained from a detained person prior to them speaking to a lawyer is inadmissible. Further, Mr. Martineau was entitled to understand exactly what he was charged with and this enquiry should therefore not be used against him.

[43] The defence referred to a ruling in the case of R. v. Srun et al., 2013 ONSC 5958, in which the conduct of a certain detective with York Regional Police in an investigation was criticized by the court as “serious” and “Charter-infringing.” Fuerst, J. went on to say that “the court needs to dissociate itself from it [the conduct] to avoid a negative impact on the justice system”[^1]. The defence submitted that York Regional Police continues to conduct investigations which have been criticized by the courts in the past, even in the face of Mr. Martineau asserting his right to silence 29 times. Defence counsel submitted it was unrealistic for Detective Courtice to state he was unaware of such criticism by the courts.

[44] In summary, Mr. Martineau did not have an operating mind when he gave the videotaped statement which was given in the context of oppressive circumstances and persistent questioning in the face of his numerous clear and unambiguous requests to remain silent. The videotaped statement should be excluded on the grounds that it was involuntary and in breach of Mr. Martineau’s section 7 right to remain silent.

[45] The impugned statement in the audiotaped statement should be excluded as Mr. Martineau was not given an opportunity to speak to counsel before making it and the utterance therefore offends section 10(b). Further, it was an utterance which was made solely to clarify his own jeopardy which he is entitled to know pursuant to section 10(a). The defence has met its burden on the Charter application.

THE ISSUES AND THE LAW

ISSUE NO. 1 – Was The Audio Recording Obtained in Violation of Sections 10(a) and (b)?

[46] The Crown is seeking to have a particular utterance from the Mr. Martineau admitted into evidence as part of its case. That utterance is the one at page 30 of the audio transcript which has been set out above but for clarity’s sake it will be repeated here:

Am I bein’ charged with just homicide or is it homicide, mutilation after the fact, dismemberment, and all that other stuff? What is it?

[47] It is clear in this case that Mr. Martineau wanted to speak to a lawyer. He may not have been a sophisticated accused but he was an experienced one to the point where he knew his defence counsel’s phone number by heart. He gave the number to Detective Courtice once he was placed in the police vehicle and made it clear he wanted to speak to him. He knew Detective Courtice was about to read him his rights to counsel and he intervened, clearly knowing what was coming, to make his position clear. He wanted to talk to a lawyer, he knew which one he wanted to talk to and he wanted to talk to him right away.

[48] The case law is clear that once an accused person is detained, he or she must be given a reasonable opportunity to exercise their right to counsel. Failure to do so may result in the exclusion of incriminating evidence. This important principle has been reiterated recently in the case of R v. Taylor, 2014 SCC 50, where blood sample evidence was excluded because the accused was not given an opportunity to speak to his lawyer before giving the samples.

[49] While Detective Courtice did try to contact Mr. Martineau’s lawyer when in the police vehicle, he was unable to do more than leave a message. Mr. Martineau was afforded a full opportunity to speak with duty counsel once he reached the police station, but not before. Therefore, anything said by Mr. Martineau in the police cruiser was without the benefit of legal advice.

[50] With respect to Mr. Martineau’s 10(a) Charter rights, it is important to set out a brief history of what he understood his charges to be at the time he made the subject utterance. Upon arrest on the train platform, he was told by Constable Ward that he was under arrest for murder and by Constable Perrault (while he was on top of him) that he was charged with second degree murder. Constable Ward and Perrault say they heard another officer giving Mr. Martineau his rights to counsel, but they do not know who it was nor did they have a specific note of it. Detective Courtice approached within 30 seconds, recorder in hand and told him he was charged with murder. Once in the police cruiser with Detective Courtice, and again while being recorded, but after receiving his rights to counsel and both cautions, he is told he is charged with murder.

[51] At that time, Mr. Martineau was aware that his mother Wendy Martineau had been charged as an accessory after the fact. He also knew there was significant media attention surrounding Mr. Davison’s death as well as rumours of “foul play.”

[52] The Crown argues that Mr. Martineau was well aware of his rights to counsel because he gave his lawyer’s number to Detective Courtice almost immediately after being placed in the police vehicle. That combined with the likelihood that he was given his rights to counsel while on train platform by an unknown officer are sufficient to have prevented any Charter breach from having occurred. However, even if his rights to counsel had not been given, the Crown argues that it was a spontaneous utterance given by Mr. Martineau when he was well aware he was being recorded.

[53] Mr. Martineau may well have been given his rights to counsel while on the platform, but all of the officers were consistent in their testimony that the train platform environment was chaotic and noisy to the point where even the crowd of officers standing together had difficulty hearing one another. Quite naturally, Detective Courtice wanted to give Mr. Martineau his rights to counsel in the privacy and quiet of the police cruiser, both to ensure he could be heard and to ensure the rights were understood. Therefore, even if the rights to counsel were given on the train platform, I do not find that they were given in a way that could be properly understood or realistically acted upon. The proper rights to counsel and cautions were given in the police cruiser and therefore anything Mr. Martineau said prior to this should be excluded according to the existing case law. I find that the defence has met its onus with respect to proving on a balance of probabilities that there was a breach of Mr. Martineau’s 10(b) Charter rights.

[54] If I am incorrect with respect to the 10(b) breach, I note the following with respect to 10(a). By the time Mr. Martineau had been placed into the police vehicle, he had been given two different versions of what the actual charge was. This, combined with his knowledge of his mother’s charge, the media coverage and community rumours, it is this court’s view that it would be entirely natural for Mr. Martineau to want to understand exactly what he was charged with and the scope of his jeopardy.

[55] As a result, I respectfully disagree with the Crown that the subject statement should be treated as a spontaneous utterance. Clarity as to exactly what one is charged with when it is murder cannot be underestimated. Therefore, I find that even if Mr. Martineau’s utterances were made after being informed of his right to counsel, if that occurred on the train platform, they were made in the context of him requesting that he be fully informed of his charges and aligned directly to his 10(a) right to same. The 10(a) and (b) Charter rights are naturally linked as one cannot determine whether to exercise the right to counsel without fully understanding one’s jeopardy. Given all the circumstances I find that the defence has met its onus with respect to the 10(a) and 10(b) application.

[56] Once a Charter breach has occurred, the court must consider whether to exclude the evidence under section 24(2) of the Charter. In doing so, the court must assess and balance the effect of admitting the evidence on the public’s confidence in the justice system, having regard to “the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of an accused, and the societal interest in an adjudication on the merits.” (see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.) at para. 85). While there can be no doubt about society’s interest in ensuring that there is an adjudication of serious cases on their merits, there is also a societal interest in ensuring that justice system remains above reproach in its treatment of those charged with serious offences[^2].

[57] It is trite to say that in this case the 10(b) breach was not the result of a wilful disregard for Mr. Martineau’s rights. In this case, the focus must be on whether this incriminating evidence should form part of the Crown’s case at trial when it is really related to a request for clarification about his jeopardy. I find that this case can be adjudicated on its merits without this statement and that society would be concerned about the treatment of an accused whose enquiries about such a serious charge as this could be used against him or her. In order to ensure that our justice system remains above reproach with respect to accused persons charged with serious offences such as Mr. Martineau, the subject statement at page 30 of the audiotaped transcript must be excluded.

ISSUE NO. 2 – Voluntariness and Section 7

[58] The interplay between voluntariness and section 7 has been well-described in R. v. Singh[^3] as follows:

It follows that, where a statement has survived a thorough inquiry into voluntariness, the accused’s Charter application alleging that the statement was obtained in violation of the pre-trial right to silence under s.7 cannot succeed. Conversely, if circumstances are such that the accused can show on a balance of probabilities that the statement was obtained in violation of his or her constitutional right to remain silent, the Crown will be unable to prove voluntariness beyond a reasonable doubt.

[59] As correctly pointed out in the Singh, the test under section 7 and the confessions rule are “functionally equivalent.”

[60] As a starting point under the confessions rule, any statement made by an accused person cannot be admitted into evidence unless it is proven to be voluntary. The accused concedes that his statements were made to a person in authority, namely Detective Courtice.

[61] The Crown must prove that the statement was voluntary beyond a reasonable doubt. In order to do so, the principles set out in R. v. Oickle, [2000] S.C.C. 38, must be examined in the context of the evidence in this case and with a view to protecting an accused’s rights while balancing those of society’s interest in investigating crimes.

[62] The test in Oickle requires the court to examine the following:

(a) Any threats or promises made to the accused;

(b) Any creation of an oppressive atmosphere or oppressive circumstances;

(c) Whether the accused had the requisite “operating mind”; and,

(d) Any police trickery[^4].

[63] With respect to section 7, and as pointed out in Singh at paragraph 28, the right to remain silent cannot be interpreted to mean that a person has the right not to be spoken to by authorities. The investigation of any crime naturally means that questions will be put to an accused person who is usually the person who has the most information about the alleged crime. The issue then becomes whether, if the accused answers those questions, he or she has answered them voluntarily or in the context of any of the offending principles set out in Oickle.

[64] A lack of voluntariness is not measured by the amount of times that an accused announces their refusal to answer or participate. I have set out above in this ruling numerous examples of Mr. Martineau’s refusal to engage with Detective Courtice. The defence argues that Mr. Martineau’s requests to remain silent were ignored. This, combined with an insufficient caution at the beginning of the interview, is fatal to the question of voluntariness according to the defence. With respect, I disagree. Detective Courtice acknowledged Mr. Martineau’s right to silence and also confirmed his own duty to investigate. Specific examples of this are as follows:

(a) Mr. Martineau, “I was told by duty counsel that I have the right to remain silent and that’s what I’m gonna do.” Detective Courtice, “You certainly do.” Mr. Martineau, “And she [Duty Counsel] said even though it is a right, I should just shut up. Period. I shouldn’t even talk to anybody here.” Detective Courtice, “No, I – what I can say is, is that is your right, but what’ – what’s important is that you – you say – you say what happened why.” (p.14-15).

(b) Detective Courtice, “…It’s the police responsibility to speak on behalf of Ivan, okay? I can tell you that – that Ivan’s not here to speak for himself…” (p. 13).

[65] Further, I agree with the court in Singh that requiring authorities to stop questioning an accused immediately upon asserting their right to remain silent would result in a “bright-line rule” which would effectively ignore the state’s interest in the effective investigation of crime[^5]. Therefore, I do not find that the fact that Mr. Martineau asserted his right to remain silent twenty-nine times is automatically determinative of a breach of section 7 or the issue of voluntariness. It is but one factor to be considered in the context of all of the circumstances including police conduct.

[66] Reviewing police conduct in this case reveals the following. The videotaped statement shows that Detective Courtice was courteous and respectful to Mr. Martineau at all times. He provided him with food, drinks, the opportunity to go to the bathroom and speak to his lawyer in private. He did not raise his voice at Mr. Martineau nor did he try to persuade him to talk based on false information, or the promise of reduced or different charges. It cannot be ignored that Detective Courtice was clearly attempting to ingratiate himself with Mr. Martineau so Mr. Martineau would feel comfortable and likely provide information to him as a result. This cannot be considered a police trick or improper police conduct. It is an accepted investigative technique which bore fruit in this particular case. The videotape is clear, and I do not find, that the police made any promises, threats or inducements, either moral, direct or indirect to Mr. Martineau.

[67] I disagree with the defence that this case can be compared to R. v. Srun[^6], R. v. Mylvaganam[^7], or R. v. Mohamad[^8]. In Mylvaganam, the accused, who was charged with murder, was interviewed for seven hours. After three hours and twenty-three minutes, the accused doubled over and said he could not continue. However, the detective in that case continued to question the accused for more than two and a half hours. The portion of the statement after the three hour and twenty-three minute mark was excluded as being involuntary.

[68] In Mohamad, the accused was interviewed for over six hours. The accused had been arrested for murder in relation to a shooting. After about three hours the accused protested he was tired and wanted to be returned to his cell. The interviewing detective told the accused that he was prepared to keep him under interrogation even if it took all night. He then continued to interrogate the accused for another two and a half hours. The statement was admitted at trial but only up until 1:05 a.m. The questioning actually continued until 4:00 a.m.

[69] In Srun, the accused was arrested for first degree murder. He was questioned by police for seven hours. The accused asserted his right to silence over one hundred times during the course of the interview. The statement was excluded because of improper inducements including references made by the investigating officer that the accused had a legal obligation to speak to the police and that he should put his trust in the police rather than his own lawyer.

[70] The defence is quite correct that all three of these cases were homicide investigations by York Regional Police and that the questioning was done by Detective Goetz of the homicide unit. However, the criticisms of Detective Goetz’s investigations by this court cannot be visited on Detective Courtice. Detective Courtice did not continue the interview for hours after Mr. Martineau said he would smash something if he was not taken to his cell. In fact, he was taken to his cell mere minutes after making this demand. Further, Detective Courtice never disparaged the legal advice given to Mr. Martineau nor did he purport to suggest that Mr. Martineau was obliged to talk to him. The request for information was framed as an opportunity for Mr. Martineau to tell his side of the story – an acceptable investigative technique often used by police and not prohibited as trickery or an inducement.

[71] The defence also argues that the secondary caution given to Mr. Martineau at the beginning of the interview was insufficient. According to the defence, a complete primary and secondary caution should have been read to Mr. Martineau at the beginning of the interview so that he could fully appreciate the consequences of talking to Detective Courtice. While it may have been preferable to re-read both cautions, I do not find it to be fatal to the Crown’s application for the following reasons:

(a) I do not find that there is any doubt that Mr. Martineau knew that he was being recorded both on arrest and during the interview.

(b) Mr. Martineau, while not sophisticated in the criminal world, was experienced. He knew what was coming when Detective Courtice was about to read him his rights in the police cruiser. He had been through this before. While this does not reduce the police obligations, it affects Mr. Martineau’s understanding of what was happening. He, in fact, says so at page 10 of the videotaped transcript when he says “I’ve been through this whole ball game before. Not the second-degree murder charge thing, but, if your case is what it is, the let’s just deal with it. Take it to court.”

(c) Once the caution was given, Mr. Martineau was asked if he understood it and he said yes. Within five minutes of hearing the caution and acknowledging he understood, he acted upon it by stating, “I don’t want to talk about anything for the record.” (p.11). Not only was he exercising his right to remain silent, he was acknowledging that his assertion was being recorded.

[72] I therefore find that Mr. Martineau understood that he had the right to remain silent but chose to speak to Detective Courtice of his own free will and notwithstanding the possible implications of speaking to police. In support of this finding, I note the following:

(a) Mr. Martineau initiated conversations on his own. This often occurred after a period of silence.

(b) Mr. Martineau was relaxed enough to initiate conversations with Detective Courtice about personal matters such as being the victim of sexual abuse.

(c) Mr. Martineau, despite protesting that he needed sleep, told Detective Courtice “If you bring me a dart, we might be able to talk a little bit more.” Mr. Martineau is negotiating with police at this point. I find that notwithstanding his body language and protests about sleep, he was well aware of what was going on and what the quid pro quo was for a cigarette.

(d) Mr. Martineau chose which questions he wanted to answer and which ones he did not. This was clearly articulated throughout the interview.

(e) Mr. Martineau fully understood what his counsel had told him about remaining silent but chose to ignore that warning. The best example of this is on page 14 of the videotaped transcript when Mr. Martineau says, “And she [duty counsel] said even though it is a right, I should just shut up. Period. I shouldn’t even talk to anybody here.”

[73] The defence argues that Mr. Martineau did not have an operating mind at the relevant times. He was sleep deprived, talking in non-sequiturs and his several requests to be returned to his cell were ignored. In an act of desperation, he threatens to smash something unless he is returned to his cell. Detective Courtice continued to question Mr. Martineau despite his many assertions that he wanted to remain silent and that the interview was over.

[74] Respectfully, I disagree with the defence position. The operating mind test requires only a limited mental component. This requires that an accused have sufficient cognitive capacity to understand what he or she is saying and what is said[^9].

[75] I find that Mr. Martineau had the required limited mental component to meet this part of the test. His answers were responsive. I do not find that he spoke in non-sequiturs. In fact, when he spoke of random subjects such as jelly beans, those subjects were often raised by Detective Courtice. Using this example; jelly beans had been found in Mr. Martineau’s personal belongings and Detective Courtice commented on this. This led to a lengthy discourse by Mr. Martineau about why he preferred a certain type of jelly bean and his assessment of certain flavours. This information was not relevant to the investigation but was in fact an opinion of Mr. Martineau on a certain benign subject but rationally held and fully explained.

[76] Another example of Mr. Martineau having the required level of cognitive capacity is the already cited example of Mr. Martineau negotiating a cigarette, essentially in exchange for giving more information to the police. Frankly, I think the analysis of whether Mr. Martineau had an operating mind need go no farther. The mental capacity required to negotiate with police and have them accede to the request (Mr. Martineau knowing all the while that he need give nothing in return, as he was not required to give the police any information at all) was an example of much higher cognitive reasoning than the test requires.

[77] Although already partially covered by the above conclusions, I also do not find that Mr. Martineau was subjected to oppressive circumstances. As already discussed, he was fed, given water and an opportunity to go to the bathroom. While he protested a lack of sleep, he continued to initiate conversation and choose which questions to answer or not answer. I do not agree that his behaviour in threatening to smash something if he was not taken to his cell is indicative of any oppressive circumstances. Mr. Martineau was no doubt frustrated but that does not mean he was oppressed. Detective Courtice recognized that Mr. Martineau had reached his limit and arranged to have him taken to his cell shortly thereafter. Had Detective Courtice continued with the questioning for hours after that time, that may have been problematic, but he did not.

[78] As for police trickery it is clear that there was none. Case law has underlined that police behaviour such as undermining the advice of an accused’s counsel, leading an accused to believe they are required to give the police information or making up preposterous facts to present to an accused to get them to confess will not be tolerated. None of this type of behaviour is present in this case.

[79] In conclusion, I find that the Crown has proven beyond a reasonable doubt that the videotaped statement is voluntary. I further find that the defence has not proven on a balance of probabilities that there was a breach of Mr. Martineau’s section 7 right to silence.

ISSUE NO. 3 – Statement Edits

[80] The audiotaped statement is admissible, other than the excluded portions (as per my decision herein) at page 30, lines 16-20 of the statement.

Videotaped Statement Edits: Edit # 1

[81] With respect to the videotaped statement, the defence seeks to edit out the reference to Rian McLean at page 38, lines 15 to 25 as follows:

Detective Courtice: No, you wouldn’t – I know what you mean. I think he [Rian McLean] thought he was going to get killed himself.

Mr. Martineau: Maybe he would’ve.

Detective Courtice: Would you have killed him?

Mr. Martineau: My best friend? No.

Detective Courtice: No.

Mr. Martineau: But he doesn’t know that. Sometimes fear is the biggest motivator of all.

[82] The Crown’s position is that this exchange is relevant to rebut the Third Party Suspect defence being advanced by Mr. Martineau in that it infers that Mr. Martineau may have threatened Mr. McLean.

[83] The defence position is that this exchange was initiated by Detective Courtice, is not relevant and may lead to propensity thinking.

Ruling on Edit # 1

[84] The defence intends to advance a Third Party Suspect defence. In the circumstances, references to Mr. Martineau’s comments and frame of mind regarding Mr. McLean are relevant unless that defence is withdrawn before trial. I decline to allow the edit requested by the defence.

Videotaped Statement Edits: Edit # 2

[85] The defence seeks to edit out the statement of Mr. Martineau at page 5, lines 23-24 of the audiotaped statement of Mr. Martineau while he on a cigarette break with Detective Courtice. The statement is as follows: “I’m tryin’ to still accept the fact that I’m a murderer.”

[86] The defence argues that this is a legal conclusion and something to be decided by the jury. The Crown argues that this is relevant and that a limiting instruction may be given to the jury to avoid any propensity thinking.

Ruling on Edit # 2

[87] The videotaped statement has been admitted as both voluntary and not in breach of Mr. Martineau’s section 7 rights. The impugned statement will not be excised and a limiting instruction will be given to the jury to ensure against propensity thinking.

[88] The transcript of the audio and videotaped statements are to be edited based on this ruling, as well as the previously agreed upon edits by Crown and defence counsel, and prepared in a form appropriate for jury review.

Justice C.A. Gilmore

Released in Open Court: April 20, 2015

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.

[^1]: Supra at p. 23. [^2]: R. v. Spencer, 2014 SCC 43 at para. 80. [^3]: Supra at para. 8. [^4]: Supra at paras. 47-67. [^5]: Singh at paras. 44 and 45. [^6]: Supra. [^7]: 2014 ONSC 110. [^8]: 2014 ONSC 1348. [^9]: R. v. Whittle, (1994), 1994 SCC 55, 92 C.C.C. (3d) 11, 24 (S.C.C.).