ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-027
DATE: 20150720
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
CHARLES FERNANDES
Respondent
Sharon McCartan, for the Crown
Kenneth Jim, for the Respondent
HEARD: July 6, 2015
HEALEY J.
Nature of Application
[1] The Crown seeks to introduce a statement made by the accused, Charles Fernandes, to a police officer on August 8, 2014.
[2] This case presents unusual facts. The statement was given in circumstances where the accused was not under arrest or detained at the time. He came to the police station voluntarily, with the stated purpose of telling the police he had committed a crime, he was told that he was free to go at any time, and he acknowledged that he understood that fact. The accused nonetheless confessed to arson in relation to his mother’s house, the fire having occurred over two years earlier.
[3] The defence contests the voluntariness of the statement, seeking its exclusion on the basis that the accused’s personal circumstances were such that his free will was overborne at the time that he spoke to the authorities.
[4] The defence concedes that there were no Charter violations, the accused having been cautioned and urged to exercise his right to counsel, and ultimately exercising that right before being interrogated about his involvement in the house fire.
The Facts
[5] On May 13, 2012 a fire took place at 545 Oxbow Park Road in Wasaga Beach. The property was owned by the accused’s mother. The accused was not found after the fire and was reported as missing. He was located on May 14, 2012, and was interviewed by the officer in charge of the fire investigation on May 16, 2012. At that time he gave an exculpatory statement.
[6] In October, 2012 the Fire Marshall’s Office released its official findings, which were:
(a) In terms of ignition source, three possibilities were considered, including electrical failure, intentional application of flame to combustible material or ignitable liquid, and careless use of smoker’s material; and
(b) In conclusion, the fire investigator was unable to isolate the area of origin or the ignition sequence for the fire. The fire was classified as undetermined.
The investigation was closed thereafter, and the insurance company paid out under the policy.
[7] On August 8, 2014, the accused unexpectedly attended the Huronia West Detachment of the Ontario Provincial Police. The officer who ultimately interviewed the accused, Constable Sowyrda, had been assigned the task by his duty sergeant, who had advised him in advance that there was a male at the station’s front desk who wanted to confess to a crime.
[8] The accused came to the station alone on that date. He was twenty-five years old. The last time that he had had any contact with the police in relation to the fire was on May 16, 2012, and there is no evidence that on that prior date he had received any promise, inducement, or threat so as to extract a confession.
[9] The interview with Constable Sowyrda began at 7:55 a.m. and lasted until 9:13 a.m., with interruptions for Constable Sowyrda to make inquiries about the fire and for him to contact duty counsel on behalf of the accused. At the conclusion of the interview with Constable Sowyrda the accused was charged with arson, processed, and taken into the cells. He remains in custody.
[10] Had it been the case that the accused indicated to Constable Sowyrda that he was confessing solely to unburden a guilty mind, or to accept responsibility or demonstrate remorse, Mr. Jim submitted that this application would not have been opposed. However, the audiotape of that interview reveals that the accused identified his primary motivation repeatedly, which was that he wanted to be put in jail. He expressed various reasons for this desire, which were:
(a) He could not live “outside”;
(b) He did not belong “outside” and wanted to find a place where he belonged;
(c) No one liked him “outside”;
(d) He wanted to be dry at night and to have food;
(e) He had had unstable housing since the fire, and had been “bouncin’ back and forth here and there” and was tired of it, and he had spent the previous few nights outside sleeping in a park;
(f) He had had places to live but did not like any of them, one of them being described by him as a “like a nursing home”;
(g) He had done the crime and needed to serve the time, and jail was where he should be;
(h) He was getting frustrated and agitated and could not stay “outside”;
(i) He had injuries, including brain and nerve damage;
(j) He had been in jail previously and it was “pretty cool, so I guess I will try this”;
(k) He knew that a person is supposed to be honest and no one believes him so he thought he would just “come clean”;
(l) He was out of options;
(m) He was setting a bad example getting away with his conduct.
[11] The accused’s goal was clearly articulated by him within the first minutes of his conversation with Constable Sowyrda. After entering the interview room the exchange began with:
PCS: Have a seat for me, man. I’m Constable Sowyrda with the
O.P.P. I understand you just came to our front door?
CF: Yeah.
PCS: Yeah? Um, this…just so you know while you’re in this building everything’s audio and video recorded. Okay. Um, why’d you come to the police station today?
CF: I…I can’t live outside because I have all kinds of injuries inside of me and I got like brain damage and I got nerve damage and I got all kinds of shit wrong with me.
PCS: Yeah. Okay.
CF: So--. Yeah, I can’t live outside.
PCS: Sure. And what’s your name?
CF: It’s not an option. Charles Fernandes.
PCS: Okay.
CF: Yeah.
PCS: And how old are you Charles?
CF: So I…I need to go to jail. And, yeah. I’m not leaving until I have a place to stay.
PCS: Okay. And why do you need to go to jail?
CF: ‘Cuz there’s nowhere else to stay.
PCS: Okay. People that go to jail are people that have committed crimes, like--.
CF: Well I have committed a crime and I got away with it, so I’ll just admit to it and I’ll be on my way.
[12] During the interview, the accused declined Constable Sowyrda’s offer that he speak with duty counsel a total of nine times before agreeing to speak to a lawyer, after the officer had called such counsel on his behalf. Further, Constable Sowyrda told the accused on at least three occasions that he was free to leave the interview room and the station. The officer also told the accused on ten occasions that arson was a serious offence, and that he could be charged with that offence. He even reviewed the Criminal Code section with the accused, indicating that the maximum penalty was a period of incarceration of fourteen years. He emphasized that period of years to the accused on at least three occasions.
[13] In relation to the offence with which he was ultimately charged, the accused indicated to Constable Sowyrda that he “shoulda just admitted to it in the first place.” When asked about whether he had spoken to police at the time of the fire, he said:
Yeah…I just took off after I did it and went out to the bush and--. Uh, yeah, I was just gone for three days so they shoulda known I did it, but they didn’t figure it out for some reason and I came up with this idea I’ll just lie and get away with it, but--. And it actually worked. I wasn’t planning on gettin’ away with it, I was just…my mom just pissed me off…
[14] When eventually asked for the details of the offence, the accused indicated that he doused the entire house with gasoline, pouring it everywhere including the first and second floors of the house. Notably, those statements do not particularly coincide with the Fire Marshall’s findings. However, the accused did identify his use of the gas tank from his motorcycle, which was found inside the house after the fire.
[15] There is ample evidence that the accused, at the time of the interview with Constable Sowyrda, may have been labouring under a mental health disorder or illness. In response to questions asked, or spontaneously, he made several statements raising concern for his state of mind, in addition to the comments at the beginning of the interview previously set out. These comments are as follows:
(a) When being questioned about what time of year the fire occurred the accused stated:
I don’t really keep track of anything, man, I’ve been so stressed out lately with injuries and people trying to say I am crazy and--. There’s been so much bullshit that I can’t even keep track of anything, I’m just…I just need a break, I need to go to jail, that’s where I should be anyways.
(b) When asked about his physical injuries he indicated that one side of his body was stiff from “brain damage or something”. He stated:
…it’s from brain damage or something. And this side got my, uh, my neighbour actually…one of my neighbours apparently poisoned me ‘cuz I got really sick one night and I puked so hard that it…like stretched stuff,…nerves or something. So this side of my body got stretched apart and--. So both sides of my stomach are like kinda different, this side’s more stretched.
(c) When asked about the brain damage, the accused indicated to the officer that he was guessing that one side had brain damage because “I’ve been hit on this side of the head a bunch of times”, and stated that “like the signal that goes to that side is like different or something”.
(d) When asked by the officer whether he was in counselling, he responded “no those people like to stress me out, so I try to stay away from them”.
(e) When the officer delved into his financial circumstances, the accused indicated that he was in receipt of Ontario Works. He then indicated that “they tried to put me in this, uh, like I don’t know if it’s like a nursing home or something”…..and I was there for like four days and I just started to get pissed off, so I’m like, yeah, I can’t stay here.”
(f) When the officer indicated to the accused that it was not a normal occurrence for someone to walk in off the street and just volunteer to go to jail, the accused responded “yeah, it’s just ‘cuz I am injured, man. And I can’t find a place to stay…and I can’t keep runnin’ around like this I’m too injured. My whole body’s like just injured, man.”
(g) When the officer spoke to him about the potential of a fourteen-year custodial sentence, the accused indicated that he was aware that fourteen years was a long time, but responded “can’t be out in public, man, I’m…I’m getting pissed off. I’m fucking getting really pissed off ‘cuz I can’t live outside…I can’t be walking around pissed off”.
(h) When the officer indicated that he was free to leave the station, the accused responded “there’s no…there’s no spot for me out there, there’s nothing. I don’t belong there”.
(i) When the officer asked whether he needed some sort of social assistance, the accused answered “I’ve been trying, I don’t get anything, nobody likes me. Nobody wants me out there”.
(j) When the officer indicated that he did not want the accused to be under some sort of duress and to think that going to jail was the solution, the accused answered “well it…it is my only option, I don’t see any other options. I can’t…there’s nothing else. I’m not…I can’t live outside, man. I got too many injuries inside me”.
(k) When asked by the officer whether his injuries had been diagnosed by his doctor, he responded “no, doctors don’t believe anything I say, they like to say oh, he’s crazy, he’s imagining everything. And it’s actually kinda threatening when they say that…”.
(l) When asked by the officer where he had been staying the last few days, he responded “just kinda walkin’ around and just I don’t know where to go, so--. And I seem to be getting pissed off and agitated so I…and I don’t like this feeling, so--”.
(m) When the officer inquired whether he needed to see a doctor, and how he felt physically, the accused responded “there’s nothing a doctor can do, I just need to concentrate”.
[16] Approximately half an hour into the interview, the accused was left by himself in order to consider Constable Sowyrda’s suggestion that he speak with a lawyer. While alone, the accused spoke out loud and said:
(inaudible), they didn’t fuckin’ care. I really don’t care, man. Oh… Fuck…Just gonna find my spot on the planet earth, where do I belong…is the question. ‘Cuz it’s not here, it’s not there, it’s not here, it’s not there. It’s nowhere. Maybe it’s in here. Worth a try.
[17] Despite having spoken with duty counsel and being told by Constable Sowyrda repeatedly of the potential jeopardy that he was in, and that the potential period of incarceration was fourteen years, the interview ended with the accused still eager to be placed in jail. He requested reassurance that, despite going to court for his first appearance, he would still be going to jail that day. Even when formally told that he was under arrest and that he would be taken to the cells to be processed, the accused’s demeanor did not change and he willingly accompanied the officer out of the interview room.
The Issue
[18] The issue raised by this application is whether the accused’s statement was voluntary within the meaning of the confessions rule. The rather unusual question to be decided is, absent any of the traditional grounds stemming from conduct or words from a person in authority that would render a statement involuntary, whether the voluntariness of the statement is nonetheless vitiated because it was induced by the accused’s oppressive personal circumstances, or, alternatively, because it was not the product of an operating mind.
The Law
[19] Under the common law confessions rule, the Crown bears the burden of proving that the statement given by the accused was voluntary, beyond a reasonable doubt: R. v. Oickle, 2000 SCC 38, 2000 S.C.C. 38, [2000] 2 S.C.R. 3 at para. 30; R. v. Singh, 2007 SCC 48, 2007 S.C.C. 48, [2007] 3 S.C.R. 405 at para. 25. The mere presence of a doubt as to the exercise of the detainee’s free will in making the statement will suffice to ground a remedy: Singh, at para. 38. Further, an accused’s statement to a person in authority is presumptively inadmissible unless demonstrated to be voluntary; R. v. Pearce, 2014 MBCA 70, at para. 49.
[20] The voluntariness requirement attempts to protect against unreliable confessions. The interplay between the confessions rule and the phenomenon of false confessions was reviewed in both Oickle and Pearce. In Pearce, Mainella J. writing for the Court stated that judicial concern about false confessions is a long-standing rationale of the confessions rule (para. 59). In Oickle, Iacobucci J. writing for the majority stated that the common law confessions rule is well suited to protect against false confessions. While the rule’s overriding concern is with voluntariness, this concept overlaps with reliability, since an involuntary confession will often (although not always) be unreliable (Oickle at para. 47).
[21] Whether the statement is ultimately false or unreliable is a matter for the trier of fact once the statement is found to be admissible: Pearce, para. 63 citing R. v. Gautier, 1975 193 (SCC), [1977] 1 S.C.R. 441 at 448-9; Erven v. The Queen, 1978 19 (SCC), [1979] 1 S.C.R. 926 at 931; Park v. The Queen, 1981 56 (SCC), [1981] 2 S.C.R. 64 at 77; and R. v. LaPointe and Sicotte (1983), 1983 3558 (ON CA), 1 O.A.C. 1 at para. 39, aff’d 1987 69 (SCC), [1987] 1 S.C.R. 1253.
[22] However, the confessions rule is not the sole means of safeguarding against convictions based upon false confessions. This is explained in Pearce at paras. 60-62:
[60] However, by definition, it must be acknowledged that not all claims of false confession can be properly adjudicated by application of the confessions rule which focusses on the issue of voluntariness and is limited to statements made to persons in authority. The confessions rule can only exclude “putatively unreliable statements, not actually unreliable statements” (Hodgson at para. 19). As the Supreme Court of Canada explained in Oickle (at paras. 38-41) and Hodgson at paras. 26, 30), there are examples of false confessions that may not be excluded from being admitted into evidence by the confessions rule, for example: false confessions without external pressure because of an ulterior purpose (notoriety, to relieve guilt, illness or a disorder, or to protect another); false confessions to escape the pressure of police interrogation; false confessions because of being temporarily persuaded of guilt by a skilful interrogator; and false confessions because of inhuman or degrading treatment by a person not in authority.
[61] While not argued in this case, I think it is important to note that the confessions rule is not the only judicial safeguard against false confessions (R. v. Wells (S.W.), 2003 BCCA 242 at paras. 59-64, 181 B.C.A.C. 271). At common law a judge has discretion to exclude relevant and otherwise admissible evidence in two situations (R. v. Buhay, 2003 SCC 30 at para. 40, [2003] 1 S.C.R. 631). First, applying a cost-benefit analysis, a judge may exclude such evidence if its prejudicial effect exceeds its probative value (R. v. Seaboyer; R. v. Gayme, 1991 76 (SCC), [1991] 2 S.C.R. 577 at 610-11, and Mohan at pp. 20-21). In such cases the integrity of the jury’s reasoning is preserved by preventing their misuse or overuse of evidence of questionable value. Second, a judge may also exclude evidence if its admission would result in an unfair trial to an accused because of concerns about the process by which the evidence was obtained in the absence of a breach of the Charter (R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562 at paras. 23-24; R. v. Buric (1996), 1996 1525 (ON CA), 28 O.R. (3d) 737 at 749-50 (C.A.), aff’d, 1997 380 (SCC), [1997] 1 S.C.R. 535; and R. v. Osmar, 2007 ONCA 50 at para. 48, 84 O.R. (3d) 321, leave to appeal to S.C.C. ref’d, [2007] S.C.C.A. No. 157 (QL)).
[62] In a rare case where there is clear, cogent and compelling evidence that an otherwise admissible confession is false, a judge may be satisfied that it is necessary to use their common-law discretion to exclude the confession. Such an exercise of judicial discretion is not a backdoor way to usurp the role of the jury to determine the truth of a confession. Rather, such an exercise of judicial discretion is directed to preventing the unfairness of exposing an accused to the possibility of conviction on evidence upon which it would be unreasonable to rest a verdict (see R. v. Humaid (2006), 2006 12287 (ON CA), 81 O.R. (3d) 456 at para. 57, leave to appeal to S.C.C. ref’d, [2006] S.C.C.A. No. 232 (QL); and R. v. Hay, 2013 SCC 61 at para. 41, [2013] 3 S.C.R. 694).
[23] In Singh and Oickle, the Supreme Court of Canada set out an analysis of four circumstances that vitiate voluntariness;
a) Threats or promises;
b) Oppression;
c) Lack of operating mind; or
d) Police trickery that would shock the community: Oickle, para. 66; Singh, paras. 35 and 38.
[24] In this case the defence agrees that the Oickle test will dictate the determination of the admissibility of the inculpatory statement, however, Mr. Jim submits that only three of the four factors are operative – the issues of inducement, oppression and lack of an operating mind.
[25] In Oickle, the Court repeatedly emphasized the need to apply the confessions rule contextually, looking at all the circumstances surrounding the making of the confession (paras. 47, 51, 54, 68 and 71).
[26] I will deal first with the issue of whether the accused had an operating mind, having decided that, at the time of the confession, the accused did have the required operating mind so as not to render the confession involuntary on this ground.
[27] Oickle confirmed the test for an operating mind set down in R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914, which is that the operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment” (p. 936).
[28] In this case I am satisfied that the accused understood what Constable Sowyrda was saying to him, and that the accused was appropriately responsive to those questions overall. He understood that he came to a police station, that he was speaking to a police officer, and understood that there were potentially adverse consequences of speaking to the police, confirming his understanding that his statements could be used in evidence. He understood that he could go to jail; that was his stated goal throughout the interview. Despite his strange utterances regarding his injuries and preoccupation with incarceration, he had the level of cognitive ability outlined in Oickle. He appeared to understand and appreciate the caution in respect of his statement and right to silence, and even understood that he had the right to decline or exercise his right to counsel, even if he believed that speaking to a lawyer was irrelevant.
[29] Turning now to the issues of inducements and oppression, I wish to clearly state that there was nothing in the officer’s conduct that can be criticized, in my view. The officer appeared to make great efforts to ensure that the accused did not feel pressured or coerced into making a statement, all the while fulfilling his duty to gather any relevant facts that may assist in resolving what had been transformed into a potential crime once the accused began his confession.
[30] As discussed in Oickle at para. 63, the principle of voluntariness expressed in R. v. Horvath, 1979 16 (SCC), [1979] 2 S.C.R. 376, at p. 408, renders statements inadmissible if they are “not voluntary in the ordinary English sense of the word because they were induced by circumstances such as existed in the present case”. At para. 64 of Oickle, again referencing Horvath, the court stated:
Similarly, in concluding that the confessions rule cannot be limited to the negative inquiry of whether there were any explicit threats or promises, Beetz J. offered the following explanation of the rule, at pp. 424-25:
Furthermore, the principle which inspires the rule remains a positive one; it is the principle of voluntariness. The principle always governs and must justify an extension of the rule to situations where involuntariness has been caused otherwise than by promises, threats, hope or fear, if it is felt that other causes are as coercive as promises or threats, hope or fear and serious enough to bring the principle into play.
As these passages make clear, the operating mind doctrine is just one application of the general rule that involuntary confessions are inadmissible.
[31] The most important consideration 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: Oickle, para. 57. Once a quid pro quo is in play, it may raise a doubt as to whether the individual is confessing in order to gain the benefit offered by the police.
[32] As counterintuitive as it may be, Constable Sowyrda presented a quid pro quo to the accused by confirming that his confession could lead to jail. There is no doubt that the accused knew this and that was why he came to the station; the police held the key to him getting into jail, quite literally. Not only did the officer say that only people who commit crimes go to jail, but he confirmed the potential jail sentence for arson several times. The police had something to offer the accused, which was to assist him to achieve his stated objective of being jailed. The accused was clearly aware that this could only be accomplished if he confessed to having committed a crime, a concept confirmed by Constable Sowyrda when he said “people that go to jail are people that have committed crimes…”. Given the nature of the multiple reasons stated by the accused for needing to be placed in jail, in addition to potentially having committed an offence, this fact situation raises a serious doubt as to whether this confession was made voluntarily, free from the influence of the promise or hope of being put in jail.
[33] As discussed at para. 42 of Oickle, the court must be alive to the circumstances of the individual suspect, and here it would be unjust to ignore the oppressive circumstances under which the accused was labouring, even if only in his own mind, at the time he attended the station. Regardless of whether there was an objective basis for his desperation, the accused expressed in varying ways that he belonged nowhere else and that remaining on the outside was no longer an option. Jail was the only option in his mind, as he expressed during the interview. At para. 42 of Oickle, Iacobucci stated:
From this discussion, several themes emerge. One is the need to be sensitive to the particularities of the individual suspect. For example, White, supra, at p. 120, notes the following:
False confessions are particularly likely when the police interrogate particular types of suspects, including suspects who are especially vulnerable as a result of their background, special characteristics, or situation, suspects who have compliant personalities, and, in rare instances, suspects whose personalities make them prone to accept and believe police suggestions made during the course of the interrogation.
And indeed, this is consistent with the reasons of Rand J. in Fitton, at p. 962:
The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or of conversation, all call for delicacy in appreciation of the part they have played behind the admission, and to enable a Court to decide whether what was said was freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them.
Ward, supra, and Horvath, supra, similarly recognized the particular circumstances of the suspects that rendered them unable to confess voluntarily: in Ward, the accused’s state of shock, and in Horvath, the psychological fragility that precipitated his hypnosis and “complete emotional disintegration” (p. 400).
[34] This is one of those cases where oppressive conditions and inducement have operated together to produce an involuntary confession. Although it is usually the case that the focus is on police conduct when examining threats, promises or oppressive circumstances, this case illustrates how, even with unimpeachable police conduct, a confession may be found to be involuntary when all of the circumstances are examined.
[35] Although defence counsel has provided cases in which statements were excluded on the basis that they were given in oppressive circumstances because of the denial of basic human needs, I distinguish this case from those in order to emphasize that even in a case such as this, where the police are blameless in either creating or failing to meet those needs, an accused may be labouring under circumstances of oppression sufficient to create a reasonable doubt that have nothing to do with the police.
[36] This case is, however, similar to another presented by Mr. Jim, being R. v. Partridge, 2007 NUCJ 13. In Partridge the trial judge recognized that the confessor may be tempted to provide inculpatory information if there is some perceived advantage in doing so. The trial judge found that Mr. Partridge was aware of his surroundings, sober, and had an opportunity to receive meaningful legal advice from counsel. Even after having been told to remain silent by such counsel, after persistent police interrogating techniques, Partridge eventually succumbed and gave an inculpatory statement. The police knew that Partridge had a mental illness and had not taken his medication for days, and also did not have medication on him prior to the interrogation. After the statement was given, Partridge was taken the hospital to receive medication. At the voir dire, Partridge testified that he gave the statement out of fear that the police officer would get forceful. There was no objective basis for this fear. While this fear was not created or induced by the police, the trial judge found that it was relevant to the accused and his state of mind.
[37] In Partridge, Kilpatrick J. wrote:
In this case, Mr. Partridge was moved by an irrational fear to speak to the authorities. The fear was directly related to the fact that the accused was being interrogated with respect to his involvement with an alleged offence. Mr. Partridge believed that force would be used against him by the police if he did not speak. This fear may have been induced by his illness. However, the impact of the fear upon the accused’s decision to speak was no less dramatic than if the authorities had in fact directly threatened him. The result was the same. The accused was moved to co-operate out of a fear of reprisal if he did not give the authorities what they were seeking.
The long experience of the common law has shown that a prisoner may be tempted to provide information if there is some perceived advantage in doing so. Information desired by the authorities, whether accurate or not, may be given to secure an offered benefit or avoid a threatened consequence. The common law has learned over many years and many cases, that a statement made under these circumstances is inherently unreliable and more likely to be false than true. Reliability cannot be assured.
If the concern underlying the voluntariness requirement is reliability, then the irrational fear held by the accused could well affect the reliability of a statement given to avoid an anticipated consequence. If the voluntariness requirement is intended to guard against the false confession, it should not matter whether the fear underlying the confession was induced by the authorities or caused by some subjective paranoia internal to the accused. The danger to be averted remains the same regardless of what motivated the speaker to speak. The motivation to provide a false confession remains equally cogent in both situations.
[38] Mr. Jim makes the comparison between this case and the situation of Mr. Partridge, in that Mr. Fernandes was motivated by his personal circumstances. The motivation for giving the statement is a relevant factor that should be taken into account to assess whether the accused was influenced to make a statement. I agree with the trial judge in Partridge that the danger to be averted is the same, even if the pressures operating on Mr. Fernandes were not created by the person in authority, or even if they were a product of the accused’s imagination.
[39] I agree with Mr. Jim that here the accused perceived an advantage to confessing in order to gain protection, shelter, food and acceptance, motivated by what he believed to be his physical injuries, including brain damage, and his lack of acceptance on the “outside”, which went as far as him saying that he would be dead if he remained outside. There is no question that he perceived an advantage to confessing, even if not one that would motivate a reasonable person. Accordingly, it cannot be said that it is beyond a reasonable doubt that the statement was truly voluntary.
[40] Further, like Kilpatrick J. in Partridge, even if the question of admissibility was determined differently, as the eventual trier of fact I would be unable to attach much weight to the statement given its content.
[41] For the foregoing reasons the Crown’s application is dismissed.
HEALEY J.
Released: July 20, 2015