ONTARIO
SUPERIOR COURT OF JUSTICE
FILE NO.: CR-12-2607
DATE: 20150821
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
B. McGuire and D. D’Iorio, counsel for the Respondent
- and -
SHAWN CARGIOLI, FAMIEN MORRISSON and KENDAL KAMAL
L. Burke, Counsel for S. Cargioli
C. Hicks and S. Smith, Counsel for the Applicant F. Morrisson
L. V. Tucci, counsel for K. Kamal
HEARD: May 26-27, 2015
RULING – CROWN APPLICATION TO ADMIT THE STATEMENT OF FAMIEN MORRISSON
SPROAT J.
INTRODUCTION
[1] The Crown applied for a ruling that a May 25, 2011 statement by Famien Morrisson to the Peel Regional Police (PRP), made following his arrest for first degree murder, was voluntary and so admissible at trial.
[2] Counsel agreed that a DVD of the statement could be marked on consent without the necessity of calling Det. Colley who conducted the interview. It was further agreed that the defence would not advance any argument that the failure to call Det. Colley raised or contributed to there being a reasonable doubt. As Mr. McGuire put it, it was agreed that what you see on the video is what you get. It was also agreed that there was no need for the Crown to call other officers who simply transported or otherwise dealt with Mr. Morrisson prior to the interview.
[3] In addition, two volumes of text messages sent or received by Mr. Morrisson were marked as an exhibit. Also marked on consent was a November 17, 2014 transcript in which Mr. Morrisson’s former counsel agreed that there was no need for a voir dire with respect to Mr. Morrisson’s statement. Effectively his former counsel conceded voluntariness.
[4] Mr. Morrisson did not testify on the voir dire.
OVERVIEW
[5] The interview began at 11:27 a.m. and ended at 5:21 p.m. There were six significant breaks totalling approximately two and a half hours.
[6] Certain facts were obvious and not in dispute:
a) Mr. Morrisson was cautioned and advised of his right to counsel,
b) Mr. Morrisson spoke to counsel of his choice being Mr. Valentine,
c) Mr. Morrisson was provided with food, water and opportunities to use the washroom,
d) Mr. Morrisson did not complain of fatigue or any other difficulty,
e) Mr. Morrisson did not at any time during the interview indicate that he did not want to answer questions or that he wanted the questioning to stop,
f) Det. Colley did not resort to the technique of misleading Mr. Morrisson as to the evidence the PRP had. Instead he advised Mr. Morrisson accurately as to cell phone, text message and DNA evidence that the PRP had in hand.
[7] The transcript of the interview is 202 pages. The following provides an overview of the progression of the interview:
a) pages 30-31 – Mr. Morrisson has been in jail three to four times, most recently for approximately four and a half months for assault.
b) page 36 - he was not in Mississauga on January 24, 2011. He had only been to Mississauga two times before to play high school soccer.
c) page 97 – Det. Colley states that in addition to having his text messages the police can also tell the location of his phone.
d) page 131 – Det. Colley tells Mr. Morrisson that his DNA was found on a toque left at the scene.
e) page 147 – Mr. Morrisson still maintains that he was not in Mississauga.
f) pages 150-54 - Mr. Morrisson admits that he was in Mississauga and had an altercation with the deceased in which the deceased stabbed him in the arm. After being stabbed he returned to the car and did not see anyone stab the deceased.
[8] The Crown conceded that in the latter part of this statement, beginning at p.181, Det. Colley induced Mr. Morrisson to tell him about the gun by stating he was “not gonna get in trouble for it”. As such this portion of the statement is not admissible.
GENERAL PRINCIPLES
[9] The general principles are well known. In a pre-trial motion in this case, prior to the declaration of a mistrial, Andre J. provided a helpful summary as follows:
The following legal principles are applicable to a determination of the sole issue in this voir dire.
The Crown bears the burden of proving that Mr. Kamal’s statement to Constable Lambert was voluntary. R v. Oickle, [2000] S.C.C. 38, Supreme Court of Canada.
The voluntariness of Mr. Kamal’s statement to Constable Lambert must be established beyond a reasonable doubt for the statement to be held to be admissible. Oickle, supra, at para. 68.
A voluntary statement must be shown to have been obtained in the absence of fear, prejudice or hope for advantage held out by a person in authority. R v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151 at paras. 22-26.
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 promise. Oickle, supra, at para. 57.
To meet the test of voluntariness Mr. Kamal’s statement must be found to be the product of an operating mind in which he possessed the ability to decide whether or not to communicate with the person he believed to be a person in authority and his comprehension of the consequences of doing so. Whittle v. The Queen, [1994], 2 S.C.C. 914 at page 936.
Having an operating mind does not imply a higher degree of awareness. The knowledge of what the accused is saying and that he is saying it to police officers who could use it to his detriment. Whittle at para. 36.
In determining whether or not a statement given by an accused to a person in authority was voluntarily given a court must find beyond a reasonable doubt that the will of the accused was not overborne by the interviewing officer such that an atmosphere of oppression resulted. Oickle at paras. 58-62.
THE ISSUES
Introduction
[10] The onus is on the Crown to prove voluntariness beyond a reasonable doubt. I appreciate that the defence is not obliged to prove anything and that my decision must be based upon the totality of the evidence. Keeping these principles in mind, it makes sense to organize these reasons by addressing the issues identified by the defence as calling into question voluntariness.
[11] The defence submits that the Crown has failed to prove voluntariness beyond a reasonable doubt having regard to the following:
a) Det. Colley physically intimidated Mr. Morrisson,
b) Det. Colley told Mr. Morrisson he “needed” to talk,
c) Det. Colley threatened Mr. Morrisson by suggesting that his girlfriend could be in jeopardy for assisting him after the murder and offered the “veiled inducement” that if Mr. Morrisson talked his girlfriend would not be in jeopardy,
d) Det. Colley offered the inducement that if Mr. Morrisson confessed to robbery he would thereby avoid the murder charge.
[12] I now address these issues.
Alleged Physical Intimidation
[13] The defence argued that there was an element of physical intimidation in Det. Colley’s questioning prior to Mr. Morrisson making inculpatory statements.
[14] In the several hours leading up to the inculpatory statements the tenor of the questioning was relatively low-key. There was chit-chat such as about a mutual interest in tattoos; Mr. Morrisson’s family background; their shared knowledge of certain neighborhoods and their musical tastes. Det. Colley made sure that Mr. Morrisson was fed and comfortable.
[15] Mr. Morrisson appears to be at least six feet tall and 200 pounds. He has spent time in jail. He referred to not liking to fight but being prepared to do so as needed. There was nothing on the video that suggested to me in the slightest that he was afraid of Det. Colley or ever anxious that Det. Colley might get physical with him.
[16] Mr. Hicks pointed out correctly that at about 15:15 (p.135) Det. Colley changed position so that he is closer to Mr. Morrisson. Det. Colley often gestured with his hands. Sometimes he pointed or tapped his pen on the table. From approximately 15:28 Mr. Morrisson was sometimes softly crying or wiping his eyes. Further, at 15:33 (p.149) Det. Colley touched Mr. Morrisson three times lightly on his t-shirt. The motion was similar to earlier occasions in which he pointed for emphasis but this time there was a touching. I have gone back and watched this portion of the DVD several times.
[17] As in R v. Pappas 2012 ABCA 221, [2012] A.J. No. 716 the conduct can be characterized as “tapping” the interview subject. In our case, as in Pappas:
42 […] The appellant showed no signs of discomfort with the touching; he made no attempt to push the detective’s hand away, nor did he ask that the touching cease. From an objective standpoint, the touching was not offensive nor intimidating, and the appellant did not give evidence of any subjective feelings to the contrary. The touching could properly be described as conversational touching, which in ordinary human discourse would not be characterized as an assault. Each case will, of course, be fact-specific, and the degree of any touching and the reaction to it will be relevant. Our conclusion should not be construed as a condonation of physical assault as a legitimate means of persuasion.
[18] When Det. Colley moved his chair to be closer to Mr. Morrisson my interpretation is he was trying to get him to focus or “get real”. He summarized and emphasized the text messages that showed Mr. Morrisson was planning to participate in a robbery, the fact his cell phone was pinging off towers near the scene in Mississauga and that a toque with his DNA was at the scene. Det. Colley was trying to persuade Mr. Morrisson to stop lying to him.
[19] I am satisfied that there was no physical intimidation.
Telling Mr. Morrisson He Needs to Talk
[20] The defence also points to a number of occasions on which Det. Colley referred to Mr. Morrisson as needing to talk to him. Examples include:
a) “…if you did not intend for anybody to die than (sic) you need to tell me that”;
b) “…you need to let me understand what happened”;
c) “if you didn’t go down there to kill somebody then you need to tell me that”;
d) “…you need to tell me, you need to trust somebody”.
[21] The police had informed Mr. Morrisson of his right to remain silent and he was cautioned that anything he did say could be used as evidence. Mr. Morrisson also consulted his own legal counsel of choice. As stated in R v. Hebert 1990 118 (SCC), [1990] 2 S.C.R. 151:
[52] The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence. The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces. Read together, ss. 7 and 10(b) confirm the right to silence in s. 7 and shed light on its nature.
[