ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 07-48
DATE: 2015/07/29
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Sebastien Bouchard
Defendant
Jason Pilon and Elaine Evans, Counsel for the Crown
Lorne Goldstein and Michael Purcell, Counsel for the Defendant
HEARD: May 11 to May 15, 2015; May 19, 2015 and June 30, 2015
ADMISSIBILITY ruling
Leroy, J.
[1] Bob Nicholson’s corpse was discovered by the side of the road on December 5, 2005. Foul play was evident. They interviewed Mr. Bouchard on December 9, 2005 and January 26/27, 2006. Both interviews were recorded.
[2] Mr. Bouchard is charged with second-degree murder. The issues at trial will be whether he had the intention to murder and if so whether the defence of provocation is applicable. The voir dire was held to determine whether these statements are admissible at trial. If Mr. Bouchard testifies, his credibility will be central.
[3] There are two issues. The first relates to the voluntariness of the statements. The second is evidentiary and relates to whether various portions of the statement content are properly admissible.
[4] The prosecution posits that these statements are voluntary and the probative value of the content exceeds prejudicial effect. The Prosecution plan is to enter the first interview into the trial record for its content. The plan for the second interview is limited to use in the context of cross-examination.
[5] Defence concedes that the first statement was given voluntarily. Mr. Bouchard was not detained. Their submission is that its probative value is nominal and the prospect for significant prejudicial effect of the content is such that it should be excluded on that balancing.
[6] Defence contests the voluntariness of the second statement citing unfair inducements and oppression that breached Mr. Bouchard’s right to not talk with State authorities.
[7] For practical purposes, Mr. Bouchard’s assertion that his right to silence under s. 7 of the Charter merges with the review in respect to the Prosecution application to prove voluntariness in accordance with the common law confessions rule. There are no allegations that would engage review of undercover detained statements, statutorily compelled statements or the discovery of derivative evidence. In the context of an interrogation of a detainee by an obvious person in authority, a finding of voluntariness will be determinative of the s. 7 issue since voluntariness, as it is understood today, requires that the court scrutinize whether the detainee was denied his or her right to silence. In such circumstances, the confessions rule effectively subsumes the constitutional right to silence because the two tests are functionally equivalent - R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405.
[8] The first portion of these reasons will review the circumstances surrounding the making of the two statements from the R. v. Oikle, 2000 SCC 38, [2000] S.C.J. No. 38 perspective. The second portion weighs the probative value and prejudicial effect inherent in the statement contents and the proposed use.
Legal Context
[9] The common law right to silence exists at all times against the State whether or not the person asserting it is within its power or control. An accused’s right to silence applies any time he or she interacts with a person in authority, whether detained or not – R. v. Turcotte, [2005] 2. S.C.R. 519.
[10] Voluntariness is shorthand for a complex of values. It seeks to balance both societal and individual interests and particularly to guard against unreliable confessions which can lead to a miscarriage of justice. The animating objective of the confessions rule is to respect the twin goals of protecting the rights of accused persons without unduly limiting society’s need to investigate and solve crime. Statements by an accused to persons in authority are admissible only when the accused has made a meaningful choice to speak.
[11] The Prosecution must establish beyond reasonable doubt that, in all the circumstances, Mr. Bouchard’s will to remain silent was not overborne by inducements, oppressive circumstances, the lack of an operating mind or a combination of such things. The function of the rules in Oikle is to protect the principle of free choice to speak from cases where the choice is not integral in the sense of being intact or truly voluntary. In most cases; however, the police will have to somehow convince the suspect that it is in his/her best interests to confess.
[12] Concern for the repute and integrity of the judicial process is always hovering over this tension.
[13] Police persistence in continuing to question in the face of repeated statements by the accused that he wishes to remain silent may raise questions about whether the ultimate decision to speak was, as a factual matter, the product of a free will. These determinations are highly fact-specific and the review considers all circumstances in assessing whether continued questioning has gone so far as to overbear rather than inform the accused’s ability to choose whether to speak. The number of times the right to remain silent is asserted is one of those factors, but is not determinative.
[14] In R. v. Otis (2000), 2000 11367 (QC CA), 151 C.C.C. (3d) 416, the accused’s ability to make a free choice about whether to provide a statement was overborne by interrogator persistent questioning.
[15] By way of comparison, the facts in Otis are distinguishable from those in R. v. Roy (2003), 2003 4272 (ON CA), 15 C.R. (6th) 282 where the court concluded that notwithstanding the accused’s numerous refusals to answer certain questions, he had never actually exercised his right to remain silent. As noted by Justice Watt, “At least some [suspects] speak because they consider it to their advantage to do so. But everything doesn’t always work out according to plan. Sometimes you win. Sometimes you lose. A suspect, who miscalculates his or her ability to persuade, or the gullibility of his or her audience, has made a conscious and informed choice to speak, albeit not a wise one.”
[16] That is consistent with the observation in Oikle to the point that an accused person’s hope that a statement will be beneficial, even if such hope is promoted by the person in authority, does not vitiate its voluntariness.
Statement December 9, 2005
[17] The voluntariness of this statement is not contested. Regardless, the burden to prove voluntariness beyond reasonable doubt rests with the Prosecution and requires review of the circumstances. Detective Graham (herein Graham), with another officer, visited the Bouchard home and asked Mr. Bouchard if he would go with them to the station to make a statement. The open exit was explicitly stated and acknowledged. Graham offered the opportunity to speak to counsel and that was facilitated. Graham asked background questions covering a wide range of topics unrelated to the murder investigation. Mr. Bouchard was unable to speak with his counsel of choice; however, he spoke with another lawyer in the office. Mr. Bouchard reported that he received strong advice to not say anything until his lawyer became available.
[18] After Mr. Bouchard talked with counsel, he asserted the right to silence twenty or more times. For the most part, Graham carried on his agenda. For example, Graham responded at line 1201: “Okay, no problem, that’s what he asked you, he give you advice, no problem. Okay, can you tell me what happened on Sunday?”
[19] Graham acknowledged the nature of the legal advice reported by Mr. Bouchard. At line 1240: “Ya I know that, and the advice he is giving you. That is what he is there to do is to give advice. I am asking you.”
[20] At line 1294: “But the reality is – is that – but after you speak to a lawyer – is it going to be any different? Ya, really try and look at me – you speak to whoever you want to speak to – I’m not going to stop you from doing that Seb.” …That would be grossly unfair to you, grossly unfair to me and it would be grossly unfair to Bob and this investigation… I don’t – why don’t understand it – is having given you everything the opportunity – all I’m asking for is to explain in your own words what happened that day – but what I am getting from you is a sense that you may not give that information until you – if you speak to a lawyer…You know what happened - does the lawyer know what happened? Does the lawyer know what happened that night?”
[21] Graham advanced the theme that innocent suspects talk and guilty ones exercise the right to silence at pages 23, 25 and 31. Graham suggested (line 1323) that if something happened then he should speak to his lawyer. At lines 1460 and 1805, he reiterated the premise that if he had nothing to do with the death he had nothing to worry about, but if he did kill him he should say nothing.
[22] Mr. Bouchard talked about matters relevant to matters of interest to him, he lied about Mr. Nicholson’s condition when they separated – not dead, walking, denied wrongdoing and asserted and exercised the right to not break silence on inculpatory matters at will.
[23] Operating mind and oppressive treatment are not issues.
[24] Graham’s portions of the interview at times entered the arena of commentary, soliloquy and opinion about Mr. Bouchard’s poor character and disparagement of the right to silence and the potential consequences once this matter got to a jury. Police will venture into dangerous ground to persuade the suspect to talk. The issue becomes poignant when the suspect, in response, refrains from silence and self-incriminates.
[25] That did not occur here. Mr. Bouchard’s choice whether to remain silent was not overborne. He dialogued when it suited his purposes. He did not when he perceived the threshold of self-incrimination. Mr. Bouchard determined to terminate the interview. His last words before leaving the interview room were – line 2014 – “Eh you guys… do…do what you guys have to – I’m going home.”
January 26, 2006
[26] The interview on January 26, 2006 followed arrest. He was under State detention. The interval between interviews was seven weeks and the investigation had progressed so that it pointed to Mr. Bouchard. The confessions rule is intended to guard against the potential abuse by the State of its superior powers over the detained accused.
[27] All information, rights and cautions were provided. Mr. Bouchard spoke with legal counsel prior to the interview. The interrogation consumed a little over five hours. Mr. Bouchard asserted the right to silence approximately seventy-seven times.
[28] Detective Halliday (herein Halliday) was the “good cop” to Graham’s “bad cop”. He referenced the first interview and pointedly separated his approach from that of Graham. His interview style was gentle and persistent.
[29] He implemented a number of techniques designed to persuade Mr. Bouchard to change his mind about demurring in respect to patently inculpatory areas of enquiry. Some techniques used alone or in combination have been criticized in the jurisprudence and held to unfairly overbear the suspect’s choice to speak or not. Context is everything.
[30] He tried rapport building through the interview, he tried appeal to conscience – deceased’s dying mother; he tried reducing the moral blameworthiness baseline – suggesting the death could have been an accident, or something that got out of hand, or that he may have reacted in response to unwanted sexual molestation, or that the deceased deserved a beating for molesting children; Halliday’s stature is significantly larger than that of Mr. Bouchard and he encroached into Mr. Bouchard’s personal space; he presented police evidence – DNA, the boots, the statement from Doug Mintzer; he re-directed their conversation to safe topics when lines of enquiry exhausted efficacy – the concert, Bob’s alcohol consumption, Mr. Bouchard’s relationships with women, he suggested that Mr. Bouchard’s mother was lying and trying to protect him from the investigation; Halliday disparaged Mr. Bouchard’s exercise of the right to silence as insensitive uncaring – page 33, and declared surprise and disappointment that Bouchard would not do the right thing by telling his side of the narrative; as the interrogation wore on, he brought in other police officers who tried to reinforce Mr. Bouchard’s sense of jeopardy and the futility of silence.
[31] They discussed the merit of silence and legal advice: “But you know what, it’s you that’s sitting here, not the lawyer and you can’t hide behind your lawyer”.
[32] Halliday emphasized that it was in Mr. Bouchard’s best interests to provide a fulsome statement page 68 – “…I want your side. I want to be able to tell people your side. I want to be able to stand up at a bail hearing and say I’ve talked to you and you told me your side of the story.” Graham advised Mr. Bouchard that he would not testify in court and has only one chance to tell his story.
[33] As in the first interview, Mr. Bouchard was forthcoming when he either considered it to his advantage or did not perceive the jeopardy.
[34] Mr. Bouchard chose to speak. I am unable to discern a point in the interview when Mr. Bouchard’s will to choose to speak or not was overborne. Although his responses along the line that he had nothing to say numbered in the seventies, his fulsome responses to other areas of enquiry were many times that.
[35] There were no significant issues regarding oppression or operating mind. Even though the interview consumed five hours, Mr. Bouchard’s needs were met – cigarette and water and offering of other libations.
[36] Mr. Bouchard closed the interview with the comment: “I haven’t lied to you, I just didn’t tell you nothing”. He wasn’t far wrong. He exercised the right to silence when the questions approached the threshold of self-incrimination. Mr. Bouchard resisted officer importuning.
[37] That disposes of the voluntariness contest. Mr. Bouchard’s right to choose to speak or not was never overborne and there is no suggestion of discrete police trickery of a kind to shock the community.
[38] Mr. Bouchard argued that the second statement should be excluded as involuntary because of Graham’s end-of-interview intimidation on December 9, 2005. Under the rules relating to confessions at common law, the admissibility of a confession which had been preceded by an involuntary confession involves a factual determination, based on factors designed to ascertain the degree of connection between the two statements. These included the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminating evidence subsequent to the first, the presence of the same police officers at both interrogations and other similarities between the two circumstances. A subsequent confession would be involuntary if either the tainting features which disqualified the first confession continued to be present or if the making of the first statement was a substantial factor contributing to the making of the second statement. An explanation of one's rights either by a police officer or counsel may not avail in the face of a strong urge to explain away incriminating matters in a prior statement.
[39] Given my conclusion that both statements were voluntary, that submission fails.
[40] There remains the issue of the prejudicial effect and probative value of the substance of the statements and whether such prejudice as there is can be ameliorated by editing and instruction. The fact that it may be appropriate for the police to attempt by their question to persuade the suspect or accused to change his/her mind about whether to confess as part of the investigation does not mean that the portions of the interrogation in which such questions are asked are admissible.
Balancing probative value and prejudicial effect
[41] Mr. Bouchard voluntarily revealed insight into the context of his relationship with the deceased and acknowledged some of their activities and results of that night and denied others such that portions of the statements bring probative value.
[42] This ruling presumes that the Crown:
i. seeks to adduce the first statement into the evidentiary record;
ii. does not intend to adduce the second statement into the evidentiary record for its content so that its utility lies in cross-examination I expect will be directed at credibility.
[43] If that understanding is incorrect and the intention is to adduce the second statement into the record for the jury, there will have to be amended instructions as to what has to be removed.
[44] There are portions of the first interview recording that are relevant and material.
[45] It should be clear; however, that when actus reus is not in issue, but the specific level of intent is, post offence evidence is less likely to have probative value – R. v. Angelis, 2013 ONCA 70. Lies to police during these interviews are after the fact conduct. An accused’s post-offence conduct may be probative of an accused’s culpability, but not of the level of that culpability. This is because the accused’s post-offence conduct is as consistent with an inference that the accused committed manslaughter as it is with an inference that the accused had the intent for murder. Trial judges are obliged to instruct juries that post-offence conduct evidence cannot be used to infer that the accused committed murder rather than manslaughter: see R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, at pp.145-146.
[46] Further, the accused does not waive the right to silence by providing information selectively. An individual is free to provide some, none or all information he or she has – Turcotte, R. v. G.L., 2009 ONCA 501 @ para 39. Some of what he said constitutes assertion. Much of what he said amounts to assertion of the right to silence. Adverse inferences cannot be drawn against Mr. Bouchard for his decision not to say more. Silence is neither inculpatory nor exculpatory.
[47] It is inappropriate to cross-examine on the decision to remain silent or lead evidence that the accused had no answer in the face of suggestive police questioning or accusation unless the accused raises it. An accused’s decision to not answer may not be used to support an inference of guilt. It cannot be made into a weight gain – R. v. Noble, 1997 388 (SCC), [1997] 1 S,C.R. 874. Silence in response to any question relating to the offence is presumptively irrelevant.
[48] Mr. Pilon directed me to the Ontario Court of appeal decision in R. v. W.L. 2015 ONCA 37. In that case, the defence, who has the option, made the issue of post arrest silence an issue at trial. The appeal was brought because the prosecution went too far in the push back. The appeal court confirms that an appropriate limiting instruction can repair the prejudice to a fair trial.
[49] Mr. Bouchard has not made his silence to certain areas of enquiry an issue in the trial.
[50] The premise that a trial by a jury of 12 peers offers the fairest determination of guilt or innocence in concert with the appropriate limiting instructions is a cornerstone of the jury trial – R. v. Corbett, 1988 80 (SCC), [1988] S.C.J. No. 40; R. v. W.L. 2015 ONCA 37.
[51] That said, there has to be a point when the cost outweighs the benefit. When the defence makes silence an issue, the limiting instruction is part of the clutter cost. The point is closer to exclusion when the prosecution posits the otherwise inadmissible evidence bootstrapped, as it were, to statements of circumspect probative value. The potential for prejudice to a fair trial in the form of natural but prohibited inferences, first impression biases, distraction and time consumption is very great and these disadvantages will almost always outweigh prospects for probative value.
[52] Next, a statement is defined as:
i. an oral or written assertion; or
ii. nonverbal conduct of a person, if it is intended by the person as an assertion – R. v. Khelawan, 2006 SCC 57, [2006] 2 S.C.R. 787.
[53] Officer soliloquy, commentary, opinion, accusation, misstatement of the inferences arising from attempts to exercise the right to silence or character disparagement are not statement by the accused/suspect, are irrelevant and prejudicial.
[54] Opinion/commentary evidence is presumptively inadmissible. Exceptionally, opinion evidence is admitted after expert qualification. Graham’s opinions/comments are entirely irrelevant to any issue in the case. It is inappropriate for the Prosecution to adduce evidence of the accused’s bad character unless the accused has introduced evidence of his good character. His opinions/comments regarding Mr. Bouchard’s character or the consequences of silence cannot be admitted into evidence.
[55] Justice Watt suggests that all reasonable remedial steps should be considered before a decision to exclude a document that may be relevant, material and not offend a rule of exclusion.
[56] For the purpose of adducing the first statement into the trial record, I invite counsel to collectively parse the first statement and edit/redact:
i. officer soliloquy/commentary
ii. officer opinion
iii. officer disregard/criticism of the principle of the right to silence and Mr. Bouchard’s exercise of that right – innocent people tell their story and guilty people remain silent and disregard for the exercise
iv. officer disparagement/berating of Mr. Bouchard
v. Officer theory of the case
vi. Mr. Bouchard’s repeated demurs to investigator questions,
so that what is left does not contravene these principles.
[57] If agreement is not possible, please schedule a timely date for argument. The task is to edit out the irrelevant and unnecessarily prejudicial while trying to insure the remaining portions retain their proper meaning in relation to the whole. At some point, if suitable editing is impossible, the statement may be rejected.
Justice Rick Leroy
Released: July 29, 2015
COURT FILE NO.: 07-48
DATE: 2015/07/29
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Sebastien Bouchard
admissibility ruling
Justice Rick Leroy
Released: July 29, 2015