CITATION: R. v. Mendonca, 2015 ONSC 274
COURT FILE NO.: 13-50000124-0000
DATE: 20150114
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BRIAN MENDONCA
Jill Cameron and David Tice, for the Crown
Susan Pennypacker and Matt Fisico, for Mr. Mendonca
HEARD: January 5 and 6, 2015
M. Forestell J.
RULING ON THE VOLUNTARINESS OF THE
STATEMENT OF THE ACCUSED
I Overview
[1] Brian Mendonca is charged with the first degree murder of Khadeem Antoine.
[2] The allegation against Mr. Mendonca is that he stabbed Mr. Antoine in the early morning hours of March 23, 2012. At the time, Mr. Mendonca was 18 years-old and Mr. Antoine was 19 years-old.
[3] Just after 10:30 p.m. on March 23, 2012, Mr. Mendonca was placed under arrest for the murder. He was transported from his home in Mississauga to 22 Division in Toronto. He was held in a room at 22 Division from about 11:00 p.m. on March 23, 2012 until about 3:13 a.m. on March 24, 2012. At that time, homicide detectives spoke to Mr. Mendonca. Mr. Mendonca asked to speak to counsel and he asked for warmer clothing. A call to counsel was facilitated and clothing was provided.
[4] At about 4:07 a.m., the detectives conducted an interview of Mr. Mendonca that was audio and video recorded.
[5] The Crown seeks a ruling that the statement made by Mr. Mendonca was made voluntarily. A voir dire was conducted before me on January 5 and 6, 2015.
[6] Counsel for Mr. Mendonca submits that I should not be satisfied beyond a reasonable doubt of the voluntariness of the statement. Alternatively, counsel for Mr. Mendonca submits that if the statement is ruled to be voluntary, the statement should be edited to remove portions that are prejudicial and have minimal probative value.
[7] On January 9, 2015 I provided counsel with my decision that the statement was voluntary and admissible and indicated that reasons would follow. These are those reasons. I reserved ruling on editing to permit counsel to discuss whether there was any common ground on editing. On January 12, 2015 counsel advised that they had agreed on editing. Therefore it is not necessary for me to rule on editing
II Summary of the Evidence
[8] Mr. Mendonca was 18 years-old when he was arrested and charged with the murder in this case. This was his first arrest as an adult. However, he had been arrested and charged as a youth on seven occasions that resulted in findings of guilt.
[9] Prior to Mr. Mendonca’s arrest on this charge, Detective Hiltz, a Peel Regional police officer contacted Mr. Mendonca by telephone and gave a fictitious name. He said that the police would want to speak to Mr. Mendonca. He later contacted Mr. Mendonca and properly identified himself. He made arrangements to meet Mr. Mendonca at his home. He then arrested Mr. Mendonca and advised him of his right to counsel. Mr. Mendonca told Detective Hiltz that he wished to contact his lawyer and that he had her number on a piece of paper in his possession. Detective Hiltz told Mr. Mendonca that he would advise Toronto police of the request for counsel and of the number. Detective Hiltz explained that he did not know anything about the investigation and did not want to speak to Mr. Mendonca about the charge.
[10] Detective Hiltz and another officer transported Mr. Mendonca to 22 Division. Mr. Mendonca attempted to initiate a discussion of the charges and said that he was “okay to talk about it”. Detective Hiltz told Mr. Mendonca that he could talk to Toronto police about it.
[11] Detective Hiltz paraded Mr. Mendonca before the booking sergeant at 22 Division at about 11:00 p.m. Detective Hiltz told the sergeant that Mr. Mendonca had the telephone number of his lawyer.
[12] Mr. Mendonca was strip searched from 11:08 to 11:15 p.m. and he was then placed in a locked room.
[13] The homicide detective in charge of the case, Detective Sergeant Peter Trimble, first had contact with Mr. Mendonca at 3:13 a.m. on March 24, 2012. Det. Sgt. Trimble testified that he was involved in other aspects of the investigation in the hours between the arrest of Mr. Mendonca and his initial contact with him at 3:13 a.m. He testified that he wished to have as much information as possible before interviewing Mr. Mendonca. He did not facilitate contact with Mr. Mendonca’s lawyer before 3:13 a.m. because he was concerned about securing the knife used in the stabbing and did not want to allow Mr. Mendonca to make a call until the police had done everything possible to attempt to find the weapon.
[14] Det. Sgt. Trimble audio recorded his initial contact with Mr. Mendonca. The recording indicates that Det. Sgt. Trimble and Detective Gomes entered the room where Mr. Mendonca was being held and advised Mr. Mendonca of the charge and of his right to counsel. Mr. Mendonca requested a call to his lawyer and he complained that he was cold. Det. Sgt. Trimble and Det. Gomes left the room and Det. Sgt. Trimble phoned Mr. Mendonca’s lawyer. He put the call through to the CIB office where Mr. Mendonca was able to speak privately with his lawyer. The call was short – about 5 minutes in length. Arrangements were also made to find more clothing for Mr. Mendonca.
[15] After Mr. Mendonca spoke to counsel and was provided with additional clothing, Det. Sgt. Trimble and Det. Gomes commenced an interview of Mr. Mendonca at 4:07 a.m. The interview lasted for about two hours.
[16] At the outset of the interview, Det. Sgt. Trimble again advised Mr. Mendonca of the charge against him and of his right to remain silent. He administered the secondary caution and asked Mr. Mendonca if he understood. He confirmed that Mr. Mendonca had spoken to his lawyer. After these initial steps, Det. Sgt. Trimble asked Mr. Mendonca questions about the deceased and his relationship with the deceased. Mr. Mendonca answered those questions. After the first four questions were asked and answered, Det. Sgt .Trimble said, “Okay. And you’ve spoken to your lawyer right?” Mr. Mendonca replied, “Yeah.” And Det. Sgt. Trimble said, “and she gave you some instructions”? Mr. Mendonca replied, “Yeah.” The interview continued and Mr. Mendonca answered eight further questions about when he last saw the deceased and the arrangements he had made to meet the deceased the night of the murder.
[17] The following exchange then occurred:
Q: Okay, what were the circumstances? How were you supposed to meet him, like were you texting, calling, how – how is anything set up? Like, where were you supposed to meet?
A: My lawyer told me not to make no statements or nothing. So I wish I could help you guys or be of any help cause I know I’m innocent right now, but my lawyer said not to make no statements or tell you guys nothing until court or whatever, that’s what my lawyer is telling me. She’s like, ‘it’s a serious case, anything could be used against you’, that’s what she’s saying.
Q: Alright Brian, and that’s good advice. Uhm, however, if what you’re telling me is though, as an officer I have a duty to investigate things. If you’re telling me that you’re innocent and you have information that could lead me to believe that you’re innocent…
A: Yeah.
Q: Uhm, that’s probably pretty important for me to know. You understand?
A: Yeah I understand.
Q: Alright. Do you remember the last verbal conversation you had with Khadeem?
A: Yeah Khadeem, last thing I said to Khadeem, we’re on the phone right. We’re supposed to meet, like he told me to come to the park. Like which park? You know the park that we smoke down before. Alright so I went in there then like I seen, first I was walking, this is what happened, and I’ll let you guys know what happen still. Even though my lawyer tell me not to make no statement, I’ll let you guys know. So I was planning to meet Khadeem from earlier on right, ’cause what happened was he was supposed to meet me from early cause we were supposed to get together and chill, you know…
[emphasis added]
[Mr. Mendonca then speaks for three and half pages of transcript explaining his interaction by text messaging with the deceased and explaining that he went to the park, but did not see the deceased. He explains that he saw two figures in hoodies and ran from the park.]
[18] As the interview proceeds, Mr. Mendonca is confronted with evidence, including text messages and the 911 call of the deceased in which the deceased names his “friend”, “Brian”, as his assailant. Mr. Mendonca maintains throughout the interview that he did not stab the deceased and that he did not see the deceased the night of the stabbing.
[19] At one point in the interview Det. Sgt. Trimble says, “Alright Brian this might be one of the last times that you will ever get to tell me the truth…Okay. So, if there’s a beef between you and Khadeem, which I think there is, which we’re gonna talk about your text messages in a second… Now might be a good time for you to tell me that…”. Mr. Mendonca says, “No man.” Det. Sgt Trimble then says, “And if you did feel like you were getting set up might be a good time to tell me that too.” Mr. Mendonca responds by saying “yeah. Well I know I didn’t stab him.”
[20] At a later point in the interview Det. Sgt. Trimble suggests to Mr. Mendonca that if someone claims self-defence in court and does not tell the police, they lack credibility. Mr. Mendonca continues to deny any involvement in the stabbing.
III Analysis
[21] The defence position is that the combination of the pre-interview delay, the delay in contacting counsel, the discomfort of the accused, the youth and lack of sophistication of the accused and the suggestion that, if innocent, he should not remain silent created an atmosphere of oppression and that the resulting statement has not been proven to be voluntary.
[22] The statement of an accused person is not admissible unless it is shown by the prosecution to be voluntary. The confessions rule has evolved from the threats/promises approach and now includes other categories. A statement may be found to be involuntary as a result of threats or promises, oppression, the absence of an operating mind or police trickery. A combination of these influences may render a statement involuntary.[^1]
[23] The analysis of voluntariness is contextual. As set out in R. v. Oickle and more recently reiterated in R. v. Spencer,[^2] “Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.”
[24] Not every inducement, nor every ‘veiled threat’ will render a statement involuntary. In Oickle, the Court considered the implicit threat or inducement in the suggestion by police that ‘it would be better’ to make a statement. The context of such a suggestion must be considered and in particular, it must be determined whether the suggestion induced the accused to speak. The mere fact of an inducement, even if accepted by the subject and acted upon, does not rob a resulting statement of voluntariness. The statement does not have to be “volunteered to be voluntary”. As Iacobucci J. noted in Oickle, at para. 57:
Courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only where the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne ... The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.
[25] Mr. Mendonca spent four hours in custody after arriving at the station and before speaking to his lawyer. I find that he was in some discomfort because he was cold. However, he was able to speak to his lawyer before speaking to the police. He was given warmer clothes as soon as he complained that he was cold. I do not find that the delay or the minor discomfort of feeling cold resulted in an atmosphere of oppression. The delay was minimal and the complaint minor. There is no evidence that the conditions had any effect on Mr. Mendonca.
[26] Near the beginning of the interview, Det. Sgt. Trimble said, “If you’re telling me you’re innocent and you have information that could lead me to believe that you’re innocent…that’s probably important for me to know.” Shortly after Det. Sgt. Trimble said this, Mr. Mendonca said that he would tell the police what happened even though his lawyer had told him not to make a statement.
[27] I do not find that the comment made by Det. Sgt. Trimble, that “it would be important for [him] to know”, either alone or in combination with the pre-interview conditions raises a reasonable doubt about the voluntariness of the statement. There was no quid pro quo offered by the police. Mr. Mendonca clearly understood his right to remain silent. He understood that he had been given advice by his lawyer. He chose to speak to the police.
[28] Det. Sgt. Trimble suggested later in the interview that it was one of Mr. Mendonca’s last opportunities to tell Det. Sgt. Trimble the truth and that it would be a good time to offer any explanation. I do not find that these were inducements. There was no quid pro quo offered.
[29] Counsel for Mr. Mendonca has submitted that Mr. Mendonca was young and unsophisticated and that this is apparent from his manner of speech and choice of words. Mr. Mendonca does not appear in the interview to have any difficulty understanding his right to counsel or his right to remain silent. He appears to fully understand the questions that were put to him. I need not assess Mr. Mendonca’s level of sophistication. What is clear is that Mr. Mendonca had an operating mind, understood his rights and chose to make a statement.
[30] Having considered the circumstances of Mr. Mendonca’s detention, his age, his apparent understanding of the charge and his rights and the content of the interview, I am satisfied beyond a reasonable doubt that the statement of Mr. Mendonca was voluntary.
IV Conclusion
[31] The statement is voluntary and admissible.
M. Forestell J.
Released: January 13, 2015
CITATION: R. v. Mendonca, 2015 ONSC 274
COURT FILE NO.: 13-50000124-0000
DATE: 20150114
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BRIAN MENDONCA
RULING ON THE VOLUNTARINESS OF THE
STATEMENT OF THE ACCUSED
M. Forestell J.
Released: January 14, 2015
[^1]: R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38
[^2]: 2007 SCC 11, [2007] S.C.J. No. 11 at para. 11