ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. J.F., 2015 ONSC 2889
COURT FILE NO.: CR-14-280
DATE: 20150504
BETWEEN:
Her Majesty the Queen
Peter Leger, for the Crown
- and -
J.F.
Alan Risen, for the Defendant
Defendant
HEARD: April 30 and May 1, 2015
REASONS FOR DECISION – ADMISSIBILITY OF STATEMENT
Conlan J.
I. Introduction
[1] Mr. J.F. is charged with one count of sexual assault. The Indictment, as amended, reads as follows:
Her Majesty the Queen presents that J.F., between the 17th day of December 2011 and the 18th day of December 2011, at the Town of Blue Mountains, Central West Region, did commit a sexual assault on C.S., contrary to section 271 of the Criminal Code of Canada.
[2] The accused has elected to be tried by a jury. Jury selection is scheduled to take place in Owen Sound on May 11, 2015.
[3] On April 30 and May 1, 2015, a blended voir dire was held to determine the admissibility of a statement given by J.F. to Detective Constable Coulter of the Ontario Provincial Police (“Coulter”) on August 31, 2012.
[4] The Defence takes issue with the voluntariness of that statement.
[5] Further, the Defence has brought an Application which alleges that J.F.’s Charter section 10(b) right to counsel and/or section 8 right to be free from unreasonable search or seizure (in this case, regarding a buccal swab for DNA analysis) was/were violated, and thus, the statement ought to be excluded from the evidence at trial under subsection 24(2) of the Charter.
[6] Both sides have filed written materials and Books of Authorities. The Affidavit sworn by the accused and filed in the Application Record was adopted by him as part of his evidence at the hearing and marked Exhibit 3.
[7] J.F. was the only witness who gave viva voce evidence on the voir dire. Coulter’s evidence from the Preliminary Inquiry was filed as Exhibit 1 at the hearing, on consent, without the officer attending.
[8] The evidentiary portion of the voir dire and the Crown’s closing submissions were completed in less than one full day (April 30). The Defence delivered its closing submissions at Court on May 1, 2015. The Court reserved its decision.
II. The Facts
[9] J.F., who lives with his parents and works in Whitby, was visiting the Blue Mountains area in Grey County for an office Christmas party. He met up with the complainant, whom he knew previously and was very good friends with. They became intoxicated, to some degree, by alcohol and marihuana. It is alleged that something sexual happened between the two of them.
[10] After conducting some investigation, Coulter (then using her former surname) telephoned J.F. She told him that she was investigating the sexual assault. She asked him to attend the police detachment to speak with her about it. She did not tell him that he would be arrested. He attended the following day and gave the statement under review.
[11] The accused did not obtain any legal advice before attending at the police station. He did not tell his parents what was happening.
[12] The audio-video statement was played in Court in its entirety. It was marked Exhibit 2. It is not more than one hour in length, including a long pause during which J.F. wrote a letter to the complainant. The transcript was marked Exhibit 2A (it is 43 pages long).
[13] During the course of the interview, the accused wrote out an apology note and gave a buccal swab for DNA analysis. The note (Exhibit 4) and the written consent form for the DNA sample (Exhibit 5) were both entered as evidence at the hearing.
[14] In a nutshell, during the course of the interview, J.F. stated that he does not remember much of what happened but that he has had some flashbacks and thinks that he might have had sex with the complainant while she was sleeping (and, presumably, without her consent).
[15] J.F. is a young man in his mid-twenties and with no criminal history. He lives with his parents. He graduated high school and has some college education. He works at Mercedes Benz as an automotive technician. He had never been arrested for any criminal offence before arriving at the police station on August 31, 2012.
III. The Burdens and Standards of Proof
[16] The Crown has the burden of proving that J.F.’s statement to the police was a voluntary one. That must be proven beyond a reasonable doubt.
[17] The Defence has the burden of proving a Charter violation, whether under section 10(b), section 8, or both. And the Defence has the burden of establishing that, if there was a violation, the statement ought to be excluded from the evidence at trial. Those items must be proven by the Defence on a balance of probabilities.
IV. Analysis
The Positions of the Crown and the Defence
[18] In summary, the Crown’s position is that (i) the accused’s statement was given voluntarily; (ii) there was no breach of J.F.’s right to counsel because the information component was satisfied and understood, and implementation duties on the part of the police never even arose because the accused never asserted his right to contact a lawyer; and (iii) there was no violation of section 8 because the seizure of the buccal swab was consensual.
[19] The Crown did not address subsection 24(2) of the Charter.
[20] The position of the Defence is that, through “subtle compulsion” (inducements, express and/or implied), J.F. said what he said to Coulter out of fear of prejudice and/or hope of advantage, and thus, the statement was not a voluntary one (or at least the Court ought to have a reasonable doubt on that issue). Consequently, it ought to be excluded from the evidence at trial. As the gatekeeper, I ought to exercise my discretion in not allowing the statement to be put before the trier of fact, in this case the jury.
[21] Regarding the DNA sample, the Defence does not allege a stand-alone section 8 Charter violation but rather invites the Court to see the matter as inter-connected with the voluntariness argument. In law, J.F. did not voluntarily provide the sample to Coulter, and thus, it ought to be excluded.
[22] With regard to the apology letter, the Defence advances two bases for excluding it from the evidence at trial: as a result of a violation of J.F.’s right to counsel under section 10(b) of the Charter, and/or as part of the involuntary statement.
[23] The totality of the circumstances must be considered. The statement, the apology letter and the DNA sample cannot be looked at in isolation of one another.
[24] Like the Crown, the Defence did not address subsection 24(2) of the Charter.
The Law on Voluntariness
[25] Rather than reinvent the wheel, I reproduce here paragraphs 38 through 51 of my recent decision in R. v. O’Leary, 2015 ONSC 1346.
To decide whether a statement by an accused to a person in authority is voluntary, a judge must examine and evaluate all of the circumstances surrounding the making of the statement. The approach is contextual. Watt’s Manual of Criminal Evidence (2014), section 37.04 on page 625.
The rationale for the confessions rule is that involuntary confessions are more likely to be unreliable. The rule protects the rights of the accused while not unduly limiting society’s need to investigate and solve crime. Watt’s, supra.
The framework for the confessions rule was set out at paragraph 33 of the decision of the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38, citing an earlier decision authored by Justice Martin of the Court of Appeal for Ontario.
In defining the confessions rule, it is important to keep in mind its twin goals of protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes. Martin J.A. accurately delineated this tension in R. v. Precourt (1976), 1976 692 (ON CA), 18 O.R. (2d) 714 (C.A.), at p. 721:
Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminal investigation. . . . On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible. . . .
All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of either of these objectives.
In determining voluntariness, there is no exhaustive list of factors that a judge ought to consider. But relevant considerations include evidence of (i) threats, (ii) promises and/or inducements, (iii) oppression, (iv) the operating mind requirement and (v) police trickery. Watt’s, supra, at pages 625-626.
Not every threat, promise or inducement will render a confession involuntary. In each case, a contextual approach is required.
Generally speaking, offers of lenient treatment or a reduced charge in return for a confession are likely to warrant exclusion of the statement. And inducements that are within the control of the person in authority are more likely to lead to a finding of involuntariness than those that are not within the control of the police officer. Watt’s, supra, at page 626.
The Supreme Court of Canada summarized the law on threats, promises and inducements as follows, at paragraphs 57 and 71 of its decision in Oickle, supra.
In summary, 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 when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212, particularly apt:
Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.
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.
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).
Regarding the notion of moral or spiritual inducements in particular, the Supreme Court of Canada, at paragraph 56 in Oickle, supra, stated as follows.
A final threat or promise relevant to this appeal is the use of moral or spiritual inducements. These inducements will generally not produce an involuntary confession, for the very simple reason that the inducement offered is not in the control of the police officers. If a police officer says “If you don’t confess, you’ll spend the rest of your life in jail. Tell me what happened and I can get you a lighter sentence”, then clearly there is a strong, and improper, inducement for the suspect to confess. The officer is offering a quid pro quo, and it raises the possibility that the suspect is confessing not because of any internal desire to confess, but merely in order to gain the benefit offered by the interrogator. By contrast, with most spiritual inducements the interrogator has no control over the suggested benefit. If a police officer convinces a suspect that he will feel better if he confesses, the officer has not offered anything. I therefore agree with Kaufman, supra, who summarized the jurisprudence as follows at p. 186:
We may therefore conclude that, as a general rule, confessions which result from spiritual exhortations or appeals to conscience and morality, are admissible in evidence, whether urged by a person in authority or by someone else. [Emphasis in original.]
With regard to oppressive circumstances, again, there is no exhaustive list of factors that a judge should consider. Relevant items include (i) depriving the accused of food, drink, sleep, medication or medical attention, clothing and/or shelter, (ii) denying the accused access to counsel, (iii) overly aggressive or intimidating questioning over a long time and (iv) the use of nonexistent evidence. Watt’s, supra, at page 626.
In Oickle, supra, at paragraphs 60 and 61, the Supreme Court of Canada had this to say about oppression and its connection to the issue of voluntariness.
Under these circumstances, it is no surprise that the Court of Appeal concluded the statement was involuntary. Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions. Such a confession is not voluntary. For similar examples of oppressive circumstances, see R. v. Owen (1983), 1983 3604 (NS CA), 4 C.C.C. (3d) 538 (N.S.S.C., App. Div.); R. v. Serack, 1973 1664 (BC SC), [1974] 2 W.W.R. 377 (B.C.S.C.). Without trying to indicate all the factors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time.
A final possible source of oppressive conditions is the police use of non-existent evidence. As the discussion of false confessions, supra, revealed, this ploy is very dangerous: see Ofshe & Leo (1997a), supra, at pp. 1040-41; Ofshe & Leo (1997), supra, at p. 202. The use of false evidence is often crucial in convincing the suspect that protestations of innocence, even if true, are futile. I do not mean to suggest in any way that, standing alone, confronting the suspect with inadmissible or even fabricated evidence is necessarily grounds for excluding a statement. However, when combined with other factors, it is certainly a relevant consideration in determining on a voir dire whether a confession was voluntary.
On the issue of the requirement that the maker of the statement have an operating mind, the threshold is not a high one. What is required is simply a limited degree of cognitive ability. The accused must be able to understand what he is saying. He must be able to comprehend, generally, the evidence that may be used against him. He must speak to the police officer by choice – an exercise of his own free will. Watt’s, supra, at page 626.
The police trickery criterion is concerned primarily with maintaining the integrity of the criminal justice system. Even where police trickery does not undermine voluntariness, the confession may still be excluded where the conduct of the police is so appalling that it shocks the community. Oickle, supra.
Of course, one must remember that an interrogation is, by its very nature, susceptible to some friction between the police officer and the suspect. Not very many accused persons walk in to an interview room and exclaim “you got me; I did it”. We do not expect police officers to behave as they would at the family dining table. Police officers are entitled to, and I think that most informed members of the public expect them to, employ legitimate tactics to ease the suspect in to talking. As Justice Lamer stated in R. v. Rothman, 1981 23 (SCC), [1981] 1 S.C.R. 640, at page 697, “[t]he investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queenberry’s rules”.
There is a line, however. It is not a bright one easily defined except to say that the police cannot engage in trickery or conduct that (i) overcomes the will of the accused such that the statement is extracted by compulsion, or (ii) is so egregious that the confession must be excluded on public policy grounds, to maintain the integrity of our criminal justice system, quite apart from whether the conduct of the police rendered the statement involuntary.
The Charter Rights of the Accused – the Legal Principles
[26] Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure”.
[27] Section 10(b) of the Charter provides that “[e]veryone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right”.
[28] There are two parts to the section 10(b) Charter right: the information component and the implementation component. The former, in plain language, means the obligation on the part of the police to tell the accused what he has the right to know. The latter refers to the requirement that the police facilitate the accused exercising his right to counsel.
[29] The right to counsel is not easily waived. The standard required for an effective waiver is high. The Crown has the burden of establishing unequivocal waiver. The waiver must be free and voluntary. And it must be informed – one cannot waive something without knowing what is being given up. R. v. Prosper (1994) 1994 65 (SCC), 92 C.C.C. (3d) 353 (S.C.C.).
Short Conclusion
[30] We provide reasons largely for the unsuccessful party. Here, that is J.F.
[31] The following are my determinations on each of the submissions put forward by Mr. Risen in his lengthy and thorough closing argument.
[32] I want to say at the outset that Mr. Risen’s submissions gave me something to think about. Before hearing them, I was inclined to rule from the Bench at Court on May 1, 2015, with reasons to follow. The fact that I reserved is a testament to the thoroughness and competence of the Defence arguments.
[33] The cases referred to in this section of the Reasons are those specifically referred to me by Mr. Risen in his closing submissions, although I want to make clear that I read and considered all of the decisions filed by both sides.
[34] First, the Defence argues that, before the accused even arrived at the police station, Coulter intended to keep him from obtaining legal advice. As there were no victim safety concerns and no risk of flight by the accused (things acknowledged by Coulter in her evidence marked Exhibit 1), the only reasonable inference to draw from the fact that she did not tell J.F. on the telephone that he would be arrested when he arrived at the police station is that it was a ploy to keep him from contacting a lawyer.
[35] I disagree. The other reasonable inference, even more reasonable in my view, is that Coulter did not tell the accused about his impending arrest because, in law, she was not required to do so (a point fairly conceded by Mr. Risen in his submissions).
[36] Second, the Defence argues that it was improper, at the start of the interview, for Coulter to have told J.F. that he was under arrest but not charged at that point during the interview.
[37] I disagree. I see nothing improper about that. It was true. I agree with the Defence that it is somewhat unusual to draw a distinction between the two out loud to the accused at the commencement of an interrogation, however, the fact that it is unusual does not make it wrong.
[38] And I disagree that the only clear implication that would be left with any reasonable person in the shoes of J.F. is that he would not be charged if he made the admissions that he did, which are indeed inculpatory to some degree (absent some explanation or some evidence about false memories, evidence anticipated to be called by the Defence at trial through a proposed expert witness). It makes no sense to me that someone who thought that he could avoid being charged by speaking would choose to say things that implicate him rather than tend to exonerate him.
[39] The officer was simply stating a fact to J.F., albeit perhaps an unnecessary fact to relay in the circumstances. He was under arrest. He was not charged at that point. He was charged sometime after the interview.
[40] I attribute no nefarious motives to Coulter.
[41] Third, Mr. Risen submits that the language used by Coulter throughout the interview implied that the accused could do things the easy way, such as waiving his right to counsel, writing the letter of apology and consenting to the DNA sample, or the hard way. The Defence focusses on, for example, the fact that Coulter outlined the steps that she would have to take to facilitate J.F.’s right to counsel if he asserted that right.
[42] I do not read the language that way. I think that the officer was simply confirming that she was obliged (required, mandatorily) to put J.F. in contact with a lawyer if he asked for that to be done. She was merely bringing home to the accused that she would not ignore his request to contact a lawyer if he made that request.
[43] Fourth, the Defence argues that Coulter held out leniency to J.F. and implied that the case may be diverted if he spoke to her about what happened with the complainant.
[44] I disagree. There is nothing wrong with a police officer appealing to the conscience of the accused, provided that the officer does not offer, expressly or by implication, something in exchange. I see nothing in the interview that suggests that Coulter did so.
[45] Fifth, Mr. Risen submits that Coulter tried to dissuade J.F. from contacting a lawyer at the police station by making it seem so hard for that to be arranged and by interrupting J.F.
[46] I disagree. I have already addressed the first point – Coulter was simply outlining, correctly, the steps that she would take to contact a lawyer for the accused if he chose to speak to one. On the latter, it is true that the officer interrupted J.F. at the bottom of page 6 of the transcript of the interview, however, the interruption was harmless. First, it was for a valid purpose – to reiterate to J.F. the availability of the duty counsel service. Second, less than two pages later, at the top of page 8 of the transcript, Coulter obtained from the accused a clear and unequivocal “no” to whether he wanted to contact a lawyer.
[47] Sixth, the Defence argues that Coulter implied to J.F. that, by talking, he would help everyone move on, including himself.
[48] I agree that Coulter implied that J.F. could help resolve the matter. But that is not objectionable. Nothing was offered in return. Specifically, that has no connection, in my view, to the business of the accused being arrested but not charged.
[49] Seventh, Mr. Risen submits that there are reliability concerns with the statement. I agree that there could be, however, the weight to be attached to the statement; whether it amounts to a confession; to what degree it is inculpatory; to what degree it can be explained by false memories; to what degree it can be explained by expert evidence generally; those are all issues for the jury to decide.
[50] The Defence took me to the discussion of the problem of false confessions, beginning at paragraph 34 of the decision of the Supreme Court of Canada in R. v. Oickle¸ 2000 SCC 38, [2000] S.C.J. No. 38. I agree that I have an important gatekeeper function to exclude evidence that is irrelevant, and evidence that is too prejudicial, and evidence that is inadmissible for some other reason. But, in the absence of any evidence on the voir dire about false memories, except for a bald assertion by J.F. that he was having some “flashbacks”, I am unable on this record to conclude that the statement is unreliable and, in the context of a voluntariness analysis, must be excluded at this stage.
[51] Mr. Risen took me to the passage at paragraph 65 in Oickle, supra, which in turn refers to a prior decision of the Supreme Court of Canada. That paragraph reads as follows:
- A final consideration in determining whether a confession is voluntary or not is the police use of trickery to obtain a confession. Unlike the previous three headings, this doctrine is a distinct inquiry. While it is still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system. Lamer J.’s concurrence in Rothman, supra, introduced this inquiry. In that case, the Court admitted a suspect’s statement to an undercover police officer who had been placed in a cell with the accused. In concurring reasons, Lamer J. emphasized that reliability was not the only concern of the confessions rule; otherwise the rule would not be concerned with whether the inducement was given by a person in authority. He summarized the correct approach at p. 691:
[A] statement before being left to the trier of fact for consideration of its probative value should be the object of a voir dire in order to determine, not whether the statement is or is not reliable, but whether the authorities have done or said anything that could have induced the accused to make a statement which was or might be untrue. It is of the utmost importance to keep in mind that the inquiry is not concerned with reliability but with the authorities’ conduct as regards reliability.
[52] I fail to see the relevance of that passage to the facts before me. Here, the Defence is arguing that J.F. was truthful with Coulter but that he did not confess. Thus, nothing said or done by the officer could have caused J.F. to say something that was or might be untrue.
[53] Eighth, the Defence took me to paragraph 35 of the decision of the Nova Scotia Supreme Court in R. v. W.J.T., [2002] N.S.J. No. 209. That paragraph reads as follows:
- The message was effectively, if subtly, communicated to Mr. W.J.T. that he could expect a benefit in terms of the charges he might face if he talked to police. He had to realize that if he chose not to talk he would be charged; that if he did talk, he might not be charged. The Crown has failed to prove beyond a reasonable doubt that his statement was voluntary.
[54] The problem for the Defence is that what the officer said to the suspect in W.J.T., supra is very different than anything that Coulter said to J.F. What the officer in the case referred to said is outlined at paragraph 15 of the decision:
- Then on page 32, Sergeant Flynn picks up the “standard line” theme and explains to Mr. W.J.T. that that leaves police with just one side of the story. He strongly implies but avoids saying directly that with only one side of the story, police have little choice but to lay charges. On page 32, Flynn illustrates the police difficulty by referencing the complainant F.’s allegations.
“DJF: Okay. And all we’re gonna do is, address what he’s saying, you know, alongside, and in the face of what you’re saying but bear in mind that on particular thing with F. you’ve shut us down. Okay. Figure, don’t take much to figure it out. Okay but we’re, where we are, where we want to be on this, you know that’s all we can, you know that’s all we can say is what we have to do, and, and, you know F., F. has said what’s what and, so be it.
WJT: So be it.”
[55] Although I would likely not have seen that comment as offensive as the Justice did in the case referred to, I could see a potential argument that the said comment by the police officer in that case amounted to an implied notion that the accused may not be charged if he spoke and challenged what the complainant had already told the police. That is not at all what Coulter said to J.F., whether expressly or by implication.
[56] Ninth, Mr. Risen submits that Coulter ought to have offered to J.F. a telephone book or some directory of private lawyers, both of which were available at the police detachment (as testified to by Coulter).
[57] I disagree. The information component of section 10(b) of the Charter was complied with. J.F. clearly said “no” to whether he wanted to contact a lawyer. He understood and meant “any” lawyer. There was no requirement that Coulter go further and start to facilitate a right that had never been asserted.
[58] Tenth, the Defence submits that Coulter failed to make it clear to J.F. that he could contact his own lawyer, another lawyer, or duty counsel.
[59] The interview must be looked at as a whole. As Mr. Risen correctly pointed out numerous times in his submissions, context is everything. The totality of the circumstances must govern. We do not decide cases based on snippets of evidence carved out in isolation.
[60] I have adopted the approach advocated by Mr. Risen. Although it is true that Coulter, at one point in the interview, offered only duty counsel when the accused stated that he did not have his own lawyer, it is also clear that the information component read out to J.F. and the penultimate question put to him at the top of page 8 of the transcript clearly widen the scope to A lawyer. That meant ANY lawyer, whether his own, another private lawyer or duty counsel.
[61] Tenth and finally, despite making me think a great deal about these issues, Mr. Risen has failed to persuade me that the apology letter and the DNA sample were anything but consensual. They were done/given with the accused’s informed, clear, unequivocal and voluntary consent. And, notwithstanding the arguments advanced by the Defence, I conclude that the Crown has met its burden in proving that the statement given by J.F. to Coulter was a voluntary one.
The Evidence and Findings on the Key Issues to be Decided
(i) Was J.F.’s Statement to Coulter a Voluntary One?
[62] It is not enough to exclude a confession that the accused testifies that something the police officer said or did induced him to make the statement. There has to be a semblance of reasonableness to that assertion. Otherwise, statements would be routinely excluded on the sole basis of the subjective belief of the accused, regardless of whether that belief makes any sense.
[63] For example, an interrogator opens the exchange with "I am a big fan of the Blue Jays". It so happens that the suspect is wearing a Jays jersey. The suspect immediately replies with "I killed my wife".
[64] The accused testifies that he felt swayed to make the confession because of the police officer's comment. He wanted to curry favour with the police officer and tell her what she wanted to hear, as it seemed that the questioner would be friendly and give him a break since they had something in common - their adoration of the blue birds.
[65] Even if that was a genuine belief held by the suspect, is any Judge going to throw out the statement as being involuntary? Not likely.
[66] Here, if I accept the evidence of the accused in direct examination, then I could find that he felt, as a result of several comments made by the officer during the interview, that it would be in his interest to answer her questions. I could find that he was induced to speak. I could find that he would not have answered the questions but for the inducements. I could then conclude that, therefore, the statement was not proven to be a voluntary one.
[67] But the position of J.F. is not any more compelling than the argument of the man wearing the Blue Jays jersey. No reasonable person would have felt the way that the accused alleges he did. No reasonable person would have had his free will over borne by what Coulter said.
[68] So what were these alleged inducements? Here they are, referred to by J.F. in his examination-in-chief, with quotations from the transcript of his interview at the police station.
[69] First, the following is what Coulter said to J.F. from line 15 on page 3 of the transcript to line 10 on page 4:
P.C. COURTNEY MAHAR: Okay. So [J.F.] what I want you to understand is that right at this time I’m placing you under arrest for sexual assault okay? I want you to understand that. I’m going to take a moment and I’m going to formally read you your rights. What I want you to understand is that being under arrest does not mean that you are charged at this point, okay. It just means that you’re under arrest. And I have an obligation to make you aware of what your rights are. And then I want to take some time to explain to you what I know and why I’ve asked you to come here and I can answer some questions as to why you might have as to why you’re being arrested today okay? So I want to address all those things and I have a lot to share with you.
[70] The accused testified in direct examination that he interpreted that comment to mean that he may or may not be actually charged depending on how the interview went. It is implied by the Defence that J.F. consequently spoke to the officer in an effort to try to avoid being charged.
[71] Second, what follows is a comment by Coulter to J.F. from line 1 to line 17 on page 6 of the transcript:
P.C. COURTNEY MAHAR: And I just want you to understand, I’m going to caution you that you don’t have to speak to me today okay? You don’t have to say anything to me. I’ve asked you to come here because I want to speak to you and – and I want to get your side of the events. I know that there’s two sides to every story but because I am arresting you for this offence I do have grounds to arrest you I have to inform you that you have the right to speak with a lawyer and if you want to exercise that right I have to facilitate that.
[72] Again, the accused testified that he took that to mean that if he talked to Coulter she may not charge him.
[73] Third, the following is what Coulter said to the accused from line 20 on page 8 of the transcript to line 17 on page 9:
P.C. COURTNEY MAHAR: I, I appreciate that and just so you know a little bit about my background okay, I’ve been a constable here for ten years and I’ve been investigating major crime in this detachment for the last three and half to four okay so that means my primary workload is sexual assault, robbery, fraud, and homicides and suicides, okay. So this is, this is all I deal with and quite often a sexual assault is very, very delicate offence to investigate because it involves two people in a very lot of times intimate nature and whatever else and I’ve spoken to [C.S.] and I’ve gotten her account of the events. And you know, I do as I said I do have the grounds to arrest you which is why I have arrested you, but you’re the other involved party and you may have something that you want to share with me and I just want you to understand that I’m here to listen.
[74] Again, J.F. testified that he interpreted that to mean that he should talk to the officer and give her what she wants because of the potential charge hanging over his head.
[75] Fourth, what follows is a comment by Coulter to J.F. from line 29 on page 13 of the transcript to line 16 on page 14.
P.C. COURTNEY MAHAR: Okay I’m here to resolve this for everybody. I’m here to um give you an opportunity to say what – what you need to say and you know maybe that will help us come to a resolution okay because remorse means a lot, it does and obviously we have to be concerned paramountly [sic] with [C.S.]’s wellbeing and her safety and her you know her emotional health and whatnot when we do this but it would be helpful for me and probably for [C.S.] too if you could fill in some of the blanks and you know like I said her memory is – is….
[76] J.F. testified that he thought that meant that they could resolve the matter without him being charged if he talked to the officer. And if he showed remorse, he may not be charged. If he filled in the blanks to appease the complainant, he may not be charged.
[77] Fifth, the following is the exchange between Coulter and the accused from line 1 to line 25 on page 17 of the transcript. The context is J.F.’s employment:
J.F.: Yeah, they have me doing everything. If they have to lose me, they’ll, I don’t know how happy they’ll be because I’m such a good worker, like…
P.C. COURTNEY MAHAR: You’re not going to lose your job.
J.F.: No?
P.C. COURTNEY MAHAR: You’re not going to lose your job.
J.F.: Thank you. Thank you.
P.C. COURTNEY MAHAR: I’m not interested in ruining your future, I’m not. And that’s not what this process is about.
J.F.: Yeah.
P.C. COURTNEY MAHAR: It’s about, it’s about repairing the damage as best as we can and helping everybody move forward with some sense of justice.
[78] J.F. testified that he took that exchange to mean that he should talk to help achieve some sense of justice. And he should talk to avoid losing his job.
[79] Sixth, what follows is the exchange between Coulter and J.F. from line 1 to line 10 on page 18 of the transcript.
P.C. COURTNEY MAHAR: You made a mistake.
J.F.: Yeah.
P.C. COURTNEY MAHAR: Well, it would be helpful for me like I said if you can start back with do you remember the drive up here with [C.S.]? And you call her [C.S.] right?
[80] J.F. testified that he interpreted that to mean that he should talk to the officer to help her out and increase his chances of going home and not being charged.
[81] Finally, J.F. testified that he wrote the apology letter and gave the DNA sample because the officer persuaded him to think that it would help repair the damage to the complainant. He wanted to make things easier on the officer to avoid being charged.
[82] I have gone through this exhaustive exercise in part to illustrate just how innocuous the words of the officer were.
[83] Objectively, none of these comments is a quid pro quo. None is reasonably capable of being considered a promise or improper inducement. None could reasonably be seen as something that crushed the free will of the accused or took away his ability to choose whether to speak or not.
[84] Coulter is not responsible for what is going on in the head of the accused. If he chose to take nearly everything she said as a hint that he must talk to avoid being charged or losing his job, that cannot be laid at the feet of the state. Nothing that Coulter did or said would have caused a reasonable person to think that he had no choice but to talk or be charged and fired.
[85] With regard to the former, what the officer told the accused was absolutely correct. He was arrested but not yet charged. How could Coulter be faulted for saying something that was true?
[86] On the latter, the officer had no control over J.F.’s employment. There was no reason for the accused to think otherwise. Besides, any argument that J.F. talked to save his job was eviscerated when J.F. admitted to the Court in his evidence that it was not being charged that he thought might affect his employment but rather being found guilty. Thus, it is nonsensical for the Defence to argue that J.F. was induced to speak to avoid being charged and thereby save his job. The two (being charged and maintaining employment) were not connected.
[87] With regard to the apology letter and the DNA sample, a review of the audio-video statement clearly shows that J.F. wrote the letter and gave the sample without hesitation, without complaint or question and with much eagerness. “I want to” is what he said at line 12 on page 30, regarding the letter. “I’d love to” is what he said at line 26 on page 33, regarding the DNA sample.
[88] Further, even the notion that J.F. subjectively felt induced to speak as a result of these comments by Coulter, or any of them, is a very doubtful proposition. Why? Because the accused acknowledged multiple times in cross-examination that nothing the police officer said caused him to speak. He said many times in cross-examination that he wanted to speak with the officer and chose to do so. At one point, J.F. admitted that it was his choice, and his choice alone, that resulted in him speaking with Coulter.
[89] That evidence destroys any argument by the Defence on voluntariness. And that evidence makes much more sense to me than what J.F. said in direct examination and/or in his Affidavit. I accept what J.F. said in cross-examination. It is much more consistent with the general tenor of the interview which is that J.F. wanted to talk. He wanted to express his remorse for what he might have done - have sex with his best friend while she was asleep. He wanted to make amends.
[90] As for other aspects of voluntariness besides inducements/promises, there is nil evidence that J.F. was threatened in any way; not a hint of oppressive circumstances (the whole interview was extraordinarily polite and friendly); and zero evidence of improper police trickery of any sort.
[91] The statement was given voluntarily. That has been proven beyond a reasonable doubt. The Prosecution has met its burden. Subject to the issues discussed below, the statement is admissible at trial.
(ii) Was there a Breach of J.F.’s Section 8 and/or 10(b) Charter Right(s)?
[92] Standing alone, there could not possibly be any meritorious argument that the seizure of the buccal swab was unreasonable. That evidence could only be liable to exclusion if there were other concerns.
[93] Coulter told J.F., repeatedly and in plain language, that he did not have to provide the sample. It was purely voluntary. In addition, the written consent form (Exhibit 5), in clear and plain language, states the same.
[94] As J.F. said himself during the interview, he would "love to" provide the sample if it would make the complainant feel better.
[95] The same applies to the apology letter (Exhibit 4). J.F. wrote it because he wanted to - he admitted that in cross-examination. He chose to write it.
[96] The section 8 Charter argument must fail. Neither the letter nor the DNA sample was an unreasonable seizure. They were both done with valid consent.
[97] I repeat again, J.F. wanted to cooperate, not because he was forced, coerced or even persuaded to but rather because he is a young man with a conscience who went to the police station to take responsibility. He is a thoughtful, articulate, remorseful and hard-working young man. I could tell those things from watching the interview. And they came across in spades when he testified in Court.
[98] On the right to counsel matter, I am unable to accept the argument that Coulter was required or even expected to tell J.F. of his impending arrest when she spoke to him on the telephone to arrange the meeting at the police detachment.
[99] There is no legal authority for that proposition. And for good reason - it would, by extension, mean that the police must forewarn any suspect of his anticipated arrest before that is effected, just in case he wants to get some legal advice even before the arrest is made and the right to counsel is provided. That would not only be impractical - it is wholly unnecessary as the law is crystal clear that the right to counsel must be provided and, where applicable, facilitated upon arrest or detention.
[100] One could imagine a situation where the police have a wiretap on the suspect. Something is said during the recording which gives the police reasonable and probable grounds to effect an arrest. Are they supposed to then contact the accused and tell him about the impending arrest? Or if they invite him to the police station, are they expected to tell him that he will be arrested when he gets there? I think not. And if not for that accused, why for any suspect, including J.F.? Mr. Risen fairly concedes that there is no such obligation on the part of the police.
[101] Coulter did nothing wrong here. She telephoned the accused. She told him why she wanted to talk to him. He knew full well that she would question him about the sexual activity between him and the complainant. Knowing that, he chose to attend the police station.
[102] It makes no difference that J.F. testified that he would have obtained legal advice beforehand if he had known that he was going to be arrested. First, we do not create legal obligations on the part of the police simply because, if those requirements existed, some accused would take advantage of them. Second, that evidence from the accused is problematic in that it is inconsistent with his clear waiver of his right to contact a lawyer once at the police station. Third and finally, I accept the evidence of the accused in cross-examination that he would have spoken, to some degree, with Coulter even if he had been told, before his arrival, that he was going to be arrested. That means that he would have attended and given a statement, even if to a lesser extent than what he ultimately did, regardless.
[103] Turning to whether the right to counsel was properly given and understood, I find that it was.
[104] Coulter read clearly and at a reasonable pace the full right to counsel from the standard issued police card, including the toll free number.
[105] In unequivocal language, J.F. acknowledged in the interview that he understood his rights.
[106] The only arguable point of confusion is on the issue of whether J.F. mistakenly believed that he had only two options - call his own lawyer (he had none) or duty counsel, rather than the third option of calling ANY private lawyer of his choice.
[107] That potential argument by the Defence disappeared when J.F., in answer to my request for clarification during questioning by the Crown, said that when he answered Coulter's question in the negative about whether he wanted to contact A lawyer, he meant ANY lawyer.
[108] The information component of the right to counsel was complied with by Coulter.
[109] As for implementation, the matter never got to that point. As J.F. admitted on the voir dire, at no point during the interview did he ever assert his right to counsel. He never said that he wanted to contact a lawyer, any lawyer, including duty counsel.
[110] There was no breach of J.F.'s constitutionally protected right to counsel. On balance, the Defence has failed to meet its burden.
[111] Despite Mr. Risen's able submissions and notwithstanding that J.F. has some admirable qualities, I have determined that the Charter Application must be dismissed in its entirety.
[112] As counsel did not address subsection 24(2), and as I do not see the resolution of the legal issues on the Charter voir dire as particularly close calls, I find it unnecessary to comment on subsection 24(2).
V. Conclusion
[113] For all of the foregoing reasons, I find that the Crown has proven beyond a reasonable doubt that the accused’s statement to the police was a voluntary one, and the Defence Charter Application is dismissed. J.F.’s statement to Coulter on August 31, 2012 is admissible at trial.
Conlan J.
Released: May 4, 2015
CITATION: R. v. J.F., 2015 ONSC 2889
COURT FILE NO.: CR-14-280
DATE: 20150504
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
J.F.
Defendant
REASONS FOR DECISION – ADMISSIBILITY OF STATEMENT
Conlan J.
Released: May 4, 2015