R. v. CHRISTIAN VASILE CHIS, 2015 ONSC 481
COURT FILE NO.: CR-12-10103
DATE: 20150122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHRISTIAN VASILE CHIS
Defendant
Mr. M. Dionne and Ms. M. Montemurro, for the Crown
Mr. E. Royle, for the Defendant
HEARD: December 8, 9, 10, 12, 15, 2014
Ruling on admissibility of statement
RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
FUERST J.
Introduction
[1] After the murder of Peter Gavin came to light in August 2011, York Regional Police officers gathered information that implicated one of his neighbours, Christian Chis. On the afternoon of December 12, 2012, they arrested Mr. Chis as he met with an ex-girlfriend in an area known as Rogers Reservoir.
[2] Later that afternoon and evening, Mr. Chis was interviewed for several hours by a Homicide Unit officer. The interview was videotaped.
[3] Crown counsel seeks the admission of the videotaped statement. The defence opposes, arguing that the statement was not voluntary. The defence also seeks exclusion on the ground that the police violated Mr. Chis’s s. 10(b) Charter rights. In the event that the statement is otherwise admissible, the defence asks me to exercise my residual discretion to exclude it on the basis that its probative value is outweighed by its prejudicial effect.
Summary of the Evidence
[4] Shortly after 12:30 p.m. on December 12, 2012, York Regional Police Emergency Response officers Stephen McKenzie and Chris Perry located Mr. Chis and his ex-girlfriend on a path in the area of Rogers Reservoir. Officer McKenzie told Mr. Chis that he was under arrest for murder, and took him to Homicide Unit officers William Courtice and Bhupinder Athwal who were waiting nearby.
[5] Detective Constable Athwal and Detective Courtice escorted Mr. Chis to the officers’ car. The officers audio recorded the entirety of their dealings with Mr. Chis. En route to the car, Detective Courtice told Mr. Chis that he was under arrest for murder. Mr. Chis said that he understood.
[6] Mr. Chis was put in the back of the car. Detective Courtice told him that he had been arrested for the murder of Peter Gavin, read him his rights to counsel, and asked if he understood. Mr. Chis said that he did. Detective Courtice asked if he wanted to call a lawyer “now”. Mr. Chis said that he did. Detective Courtice began to caution Mr. Chis. When the officer paused part way through the caution, Mr. Chis said that if the police had any questions, if he found it okay to answer, he would answer. He said that his cousin had informed him to keep his mouth shut anytime there were police around, and that he was going to do so. He said that the charge was “bullshit”. At the conclusion of the caution, he confirmed that he understood.
[7] Detective Courtice gave him the secondary caution. Mr. Chis said that he understood. Detective Courtice asked if he had a lawyer of choice. Mr. Chis said that he did not. Detective Courtice told him that someone would make a call to a lawyer at the 1-800 number when they got to the station. Mr. Chis asked about his ex-girlfriend, and spoke about his car and the location of his car keys.
[8] The officers took Mr. Chis to 5 District station in Markham. They arrived at 1:23 p.m. Once they entered the booking hall, their dealings with Mr. Chis were both audio and video recorded.
[9] Mr. Chis was paraded before Staff Sergeant Alice Tsang. She read him his rights to counsel from a poster, including the information about a 1-800 number. Mr. Chis said that he understood and that he wanted to call the 1-800 number.
[10] Mr. Chis was put in an interview room. Detective Courtice placed a call to duty counsel at 1:47 p.m.
[11] At 2:05 p.m. duty counsel called back. Detective Courtice told her that Mr. Chis was arrested for first degree murder and would be held for a show cause hearing. Detective Constable Athwal brought Mr. Chis to the cell area. There Mr. Chis spoke in private to duty counsel, from about 2:12 p.m. to 2:31 p.m.
[12] At 2:45 p.m. Mr. Chis asked Detective Constable Athwal for the Yellow Pages, to look for phone numbers for lawyers. He said that he was informed to do his best to look through the Yellow Pages “to contact some lawyers prior to my first court date, so I can secure a lawyer prior to me actually showing in front of the judge.” Detective Constable Athwal said that another officer would speak to him momentarily. Detective Constable Athwal then told Detective Courtice of Mr. Chis’s request.
[13] Detective Courtice went into the interview room with a lawyers’ phone book. He said he understood that Mr. Chis had made a request “with regards to the Yellow Pages”. Mr. Chis clarified that it was a “directory for lawyers” that he wanted. Detective Courtice asked him, “What’s that in regards to?” Mr. Chis replied, “[T]o acquire a lawyer for my first court date. That’s what the lady on the phone said.” Detective Courtice said that was not a problem, there was a lawyer’s phone book there. He added, “[Y]ou’ve spoken to counsel already…you want to seek out a lawyer for your court date?” Mr. Chis replied affirmatively. Detective Courtice told him that was not a problem, and the book could be left in the room.
[14] The officer asked if Mr. Chis intended to call the lawyer “today”. Mr. Chis said that was what he had been advised. Detective Courtice pointed out that because Mr. Chis did not have his own lawyer, Legal Aid had been contacted. The officer confirmed that what Mr. Chis wanted was to have counsel in place for his first appearance. He asked if Mr. Chis intended to call the lawyer “tonight”, and said they were not going to wait all night for him to find a lawyer and then have to place a call to the lawyer. Mr. Chis said that he did not intend to say anything to the police. Detective Courtice told Mr. Chis that they were going to speak to him regardless. If Mr. Chis just wanted to find the name of a lawyer that was great, he could go through the lawyer’s phone book. But if he intended to contact that lawyer before speaking to the police, Detective Courtice wanted him to say so “now”, as the officer would wait until Mr. Chis picked out a lawyer and place a call to that lawyer. Mr. Chis replied, “No, that’s fine. I’ll just look through it.”
[15] Detective Courtice said that Mr. Chis could browse through the book while he ate his meal. He asked if Mr. Chis expected to call the lawyer before an officer came into the room to speak to him. If so, he wanted to facilitate it now. Mr. Chis said, “Not necessarily. No.” Detective Courtice asked him, “So you’re satisfied at this point with having spoken to duty counsel?” Mr. Chis said “Yes.”
[16] Detective Courtice testified that he asked Mr. Chis why he wanted the phone book, because he wanted to know if Mr. Chis was satisfied with his phone call with duty counsel. If Mr. Chis was not satisfied with the advice he received from duty counsel, Detective Courtice would have allowed him to contact another lawyer if he wished to do so. The police would wait until he identified a lawyer and place the call to the lawyer, before interviewing Mr. Chis. Detective Courtice wanted to ensure that by the time Mr. Chis went to Detective McCloskey to be interviewed, he had exercised his rights to counsel and was satisfied with the advice received, so that the questioning was not interrupted by phone calls. If Mr. Chis was satisfied with the advice received, Detective Courtice would not permit him to make another call unless his jeopardy changed. Mr. Chis said that he wanted to speak to a lawyer for his first court appearance. Detective Courtice believed that Mr. Chis was satisfied with the advice from duty counsel. As a result, he was not going to wait before turning Mr. Chis over to Detective McCloskey for questioning.
[17] After Mr. Chis was given food and a beverage, at 3:46 p.m. Detective Kevin McCloskey came into the interview room. Mr. Chis indicated that he wanted to have a cigarette, but the officer told him the station was a non-smoking facility. Detective McCloskey said that Detective Courtice had given Mr. Chis his rights to counsel, a caution and a secondary caution. Mr. Chis asked what he meant by a caution. Detective McCloskey said, “[L]etting you know that you’re being arrested, being charged with murder, and anything you say in relation to that may be given - uh, can be used in evidence against you.” He said the secondary caution “would have been, uh, because you’ve had exposure to police already, being the tactical unit, right, uh, he has to give that to you because now he’s another officer introduced to you”.
[18] Detective McCloskey then confirmed that Mr. Chis had spoken to duty counsel. He had Mr. Chis confirm that he was satisfied with the advice he had been given, and that he was looking at the lawyers’ phone book for lawyers for the next day and onward. Mr. Chis said, “But that’s not to say that I’m going to say anything in regards to what you have questions for.” The officer said that was fine. He again had Mr. Chis confirm that he was using the book for counsel for the future. He told Mr. Chis that if he had spoken to any police officer or anyone with authority in connection with the case, “I want it clearly understood that I do not want it to influence you in making any statement.” Mr. Chis said that he understood.
[19] In cross-examination, Detective McCloskey said that while a detainee has a right to silence, he nonetheless will continue to ask questions after the detainee asserts it, because he has an obligation to investigate crime. It is then the detainee’s choice to answer the questions or not. When Mr. Chis asked about the caution, Detective McCloskey did not mention that Mr. Chis had a right not to say anything, because he knew Detective Courtice had already given the formal caution. He was just summarizing.
[20] Detective McCloskey then began an interview of Mr. Chis. Detective McCloskey agreed, in cross-examination, that he was going to interview Mr. Chis whether Mr. Chis wanted to say anything or not, and that he was hoping to get responses. He agreed that Mr. Chis was in custody and could not just leave the room or stop him from asking questions. He described the interview as a very engaged conversation on both sides, a discussion back and forth.
[21] The interview lasted until 12:16 a.m., with occasional breaks. Because it was video recorded, there is no dispute about what was said during the interview. Crown and defence counsel agree that nothing of relevance was said or done during the breaks, not all of which were recorded on video.
[22] In cross-examination, Detective McCloskey testified that he was involved in the investigation and knew the circumstances of the case before he began the interview. He had familiarized himself with the circumstances of Mr. Chis and his family, including the illness of Mr. Chis’s father. He had obtained a photograph of the family.
[23] Detective McCloskey started by telling Mr. Chis that the police needed to learn about him so that they could advise the Crowns and the courts “about who you are”. Mr. Chis answered a number of questions about his personal circumstances, including his family. He said that his father was in a nursing home as the result of a heart attack, and that he visited him daily and sometimes brought him home. He said that he had dedication to his family. When Mr. Chis asked if the officer was going to get to the point or continue circling around, Detective McCloskey said that he needed to find out things about Mr. Chis because Mr. Chis would present himself in court and “the court wants to know, like, so, who you are”. Mr. Chis asked about having a cigarette. The officer said that the building was a non-smoking facility, that maybe the Staff Sergeant would allow Mr. Chis to have a smoke later, but it could not be promised.
[24] In cross-examination, Detective McCloskey testified that this phase of the interview was in part rapport-building to get Mr. Chis to start talking, even about non-consequential things, and in part to get information for court in the event of a bail application.
[25] At 4:17 p.m. the officer began to show Mr. Chis a series of photographs and to ask him questions about the individuals in them. Mr. Chis identified a photograph of the deceased as his neighbour. He said that he saw him driving by a few times a year. He did not believe that he had ever been to the deceased’s property. Detective McCloskey began to talk about the police looking at phone and computer records, and identifying that certain people knew certain other people. Mr. Chis interjected and said that this was a very serious charge and he did not feel comfortable speaking to the police without a lawyer present. The officer told him that having a lawyer present was not an option, that it was not his right. Mr. Chis said, “Well then I’m just gonna notify you just now that you can carry on, say whatever you’d like, but I’m not gonna reply to anything, and I don’t mean to be disrespectful in any – in any way, it’s just this is getting serious now.” The officer said that he believed Mr. Chis committed the murder, “and that’s what we need to talk about”. He told Mr. Chis that he could not have a lawyer present, that his right was to speak to a lawyer to be advised of his rights which he had done and with which he was satisfied, but that having a lawyer present was not one of the rights afforded him.
[26] The officer then carried on with the interview. He told Mr. Chis that he was in the room to speak to Mr. Chis and show him why he was there. He said that the police had gathered a volume of information. He presented a photograph of Mr. Chis and his parents taken before his father’s heart attack, and a photograph of his father taken after he became ill. He next showed Mr. Chis a search warrant for his family home, and told him it allowed the police to spend six months searching the property for evidence of the murder. He said that the warrant and the photograph of Mr. Chis’s father were very much related, that the police would take over the property, and that that would displace his mother and mean that his father did not have a place to come back to. He said that he knew Mr. Chis had committed the murder and there was no doubt in his mind, that judges did not sign off on warrants to search properties for six months when they did not have a belief shared by the police, and that Mr. Chis was displacing his parents. He referred to Robert Pickton and the police digging “the entire place up” and finding “bodies all over the property”. He said that the search of the Chis property could be very similar. He told Mr. Chis that the family’s intended sale of the property was on hold for six months or more if it took longer, that there were “huge burdens” coming down on the family as a result of the charge against him, and that it was “something you need to consider while we’re in here”.
[27] Mr. Chis said that there was nothing to find. Detective McCloskey said that if that was the case, the police needed to know where, that they were looking for evidence of the murder. When Mr. Chis replied that the police were “barking up the wrong tree”, the officer said that he knew he was not, that “we’re gonna continue to talk about it”, he was a hundred per cent confident, and that while they were in the room “we’re gonna talk, I’m going to ask you a lot of questions”. He said he already knew the answer to a lot of the questions, but he wanted to see where Mr. Chis was in terms of his truthfulness. He said he knew that Mr. Chis killed the deceased but he was there to find out why, that Mr. Chis’s father would want to know why, and that he owed it to his father to explain what happened. When Mr. Chis responded that he did not commit a crime, the officer said that Mr. Chis committed murder, that he was going to explain how he knew that, “and then it’s up to you to explain why”. Mr. Chis continued to deny that he committed the murder, and said that the officer was wasting his own time and the life and reputation of Mr. Chis’s family.
[28] In cross-examination, Detective McCloskey denied that he linked the execution of the search warrant to Mr. Chis’s cooperation in answering questions. He wanted Mr. Chis to understand that if there were things on the property, the police would find them and it would be problematic for him. His reference to execution of the search warrant and the impact on the family was not an inducement to Mr. Chis to speak. The police needed the remains of Mr. Gavin, and so the execution of the search warrant would not stop because Mr. Chis answered questions.
[29] At 4:56 p.m. Detective McCloskey began to show Mr. Chis a series of photographs of individuals. After Mr. Chis failed to identify the initial images, Detective McCloskey suggested he was lying, told him “you’re in here to explain how it is we’re here, why we’re here today”, and said, “The truth is that you’ve committed this murder”. Mr. Chis then began to identify the individuals, ultimately as a friend named Deva and people he knew through Deva.
[30] As Detective McCloskey continued to display photographs, he told Mr. Chis that the photographs showed the individuals with prepaid credit cards purchased using the deceased’s debit card, or using the deceased’s debit card to withdraw money from his bank account. Mr. Chis answered questions about his knowledge of the individuals, essentially describing those other than Deva as casual acquaintances. He said that he did not want to talk about a personal issue between himself and Deva.
[31] Detective McCloskey presented photographs of Mr. Chis using the deceased’s debit card at a Newmarket bank, and questioned him about that. Mr. Chis said that he got the card from one of the other individuals, who told him how much money to withdraw and when to do it, for which Mr. Chis got a percentage of the cash. Mr. Chis said that he was guilty of fraud, but that he did not kill anyone. He asked to have a cigarette and told the officer “I’m working with you”. Detective McCloskey agreed that he was, and then purportedly got permission from the Staff Sergeant to take Mr. Chis to the sallyport for a cigarette.
[32] The interview resumed at 6:15 p.m. The officer showed more photographs of Mr. Chis using the deceased’s debit card to withdraw money. Mr. Chis continued to assert that one of the other named individuals told him what to do, and that he did not know it was the deceased’s debit card. He answered questions posed by the officer. Detective McCloskey repeatedly challenged Mr. Chis, telling him that what he said did not make sense, that it made more sense that he got the card from the deceased and gave it to the others to use, that the police talked to the others and they said they got the card from Mr. Chis, and that he knew Mr. Chis was lying. Mr. Chis denied all of this. More than once, Detective McCloskey said that Mr. Chis murdered the deceased, and insisted that he knew it was what happened. Each time, Mr. Chis denied the accusation.
[33] As the interview continued, Detective McCloskey told Mr. Chis that the other individuals said Mr. Chis told them he got the debit card from a dead man, and that Deva told the police Mr. Chis said he beat and tortured a man until he got the PIN. There were times when the officer raised his voice at Mr. Chis. Mr. Chis continued to deny committing the murder. Detective McCloskey said that Mr. Chis liked to answer questions with questions, and that was what guilty people did. He said that Deva told the police that Mr. Chis said he had hurt people before. The officer said that friends told the police that Mr. Chis was a gambler. Mr. Chis denied these accusations as well.
[34] Around 7:25 p.m. Detective McCloskey said, “[E]verybody around you says that you have in the past hurt people, that you have been violent, and that you’ve killed a man to get these cards…You have told them this.” Mr. Chis denied ever hurting or killing anyone. The officer said, “There’s no doubt in our mind what you’ve done.” The officer then spoke about forensic evidence, and said that Mr. Chis’s ex-girlfriend told the police he took her to the deceased’s barn and told her that he killed the deceased. He again accused Mr. Chis of the murder, and again raised his voice at Mr. Chis. He said that Mr. Chis had affected his father’s life by his actions. Mr. Chis continued to deny murdering the deceased.
[35] Detective McCloskey referred to the search warrant and said, “I explained to you what’s happening in your home right now and what’s going to continue to happen at your home and the entire property that your home sits on, for as long as it takes…You’ve displaced your parents”. Mr. Chis replied, “Don’t you dare go there.” Detective McCloskey said, “You’ve displaced your parents. You’re responsible for them not having a home to live in right now. It’s not going to be a very merry Christmas at the Chis house this year…When you’re going to displace your parents from your home because of your actions, the least you can do to start to repair things is to explain why this happened.” Mr. Chis again denied committing the murder. The officer replied, “Say that all day. The evidence says you did.”
[36] Mr. Chis asked to see the video recorded witness interviews, because he did not believe that the other individuals had said the things Detective McCloskey asserted. The officer left the room to get the videos teed up. Just before he left, he told Mr. Chis that the media would go to the house and video everything the police were doing for as long as it took. He said the media would track down Mr. Chis’s mother and father, and his parents would be asking him, “What the hell did you bring on us?”
[37] During the break, Mr. Chis complained that he had a nasty headache and needed Tylenol if he could not smoke. He said, “I’m trying to work with you here.” The officer said there was no Tylenol, and took him for a cigarette instead, just before 8:20 p.m.
[38] Starting at 8:43 p.m., Detective McCloskey played excerpts of the video interviews of the ex-girlfriend, and Deva. After watching the videos, Mr. Chis said that the other men shown in the photographs knew about it from the beginning, and that there was an additional person involved for whom the others worked. He began to ask what the police were prepared to offer him. The officer said that he could not have that conversation with Mr. Chis. Mr. Chis raised concern for his family’s safety. The officer said that he needed to know what the concern was. Mr. Chis said that the men in the photographs knew that the deceased was murdered before they ran the fraud with him, and that there was “one individual other than myself that was present.” He asked the officer, “What do you guys need from me to stop the search and not ruin their lives”, referring to his parents. The officer said that they needed to know where the deceased was.
[39] Mr. Chis said that there was one individual present at the killing other than himself, that the deceased’s leg was struck, that the deceased limped into the shed, that someone ran into the house and brought out the deceased’s wallet, that the deceased freely gave up his PIN, that he was then hit numerous times on the head, that “they” left the body there and came back later and poured hydrogen peroxide on it, and that the other person cut up the body and disposed of it in numerous locations. At that point Mr. Chis asked to have a cigarette, and the officer took him to smoke at 10:35 p.m.
[40] On their return to the interview room, Mr. Chis said that he would give names and everything they did, but he needed something in return. He wanted something better than murder. Detective McCloskey repeatedly said that he could not make a deal. Mr. Chis said that the other men in the photographs knew about the murder before it happened, but he could not say who participated in the murder until he got something in return. When the officer said that he could not do that, Mr. Chis said that he needed to recant what he had said, it was a lie. He then said that there were two people present, but denied that he was one of them. He said that he knew what was done to the deceased and who was there, but he was not going to say more until he got something in return.
[41] Crown counsel concedes that nothing probative was said thereafter, although the conversation continued until 12:16 a.m. The Crown does not seek to introduce the portion of the statement that is reflected in the transcript from page 280 to the conclusion of the interview.
[42] Detective Christopher Reid, the primary officer on the case, testified that around 10:00 p.m. he was in the monitor room watching the interview of Mr. Chis when a call came in that a lawyer was on the phone. He took the call, which was from a lawyer named Edward Sappiano. Mr. Sappiano testified that he had been contacted by members of Mr. Chis’s family and retained to advise him.
[43] While Detective Reid and Mr. Sappiano differed as to precisely what was said during the phone call, they agreed that Mr. Sappiano said that he had been hired by Mr. Chis’s family and wanted to speak to him. Detective Reid said that Mr. Chis had already spoken to duty counsel. He would not allow Mr. Sappiano to speak to Mr. Chis. Mr. Sappiano urged Detective Reid to speak to a Crown counsel. Detective Reid put him on hold, and did so. When the officer came back on the line, his position was unchanged. He told Mr. Sappiano that he would give Mr. Chis his phone number. At the conclusion of the accused’s interview, Detective Reid gave the phone number to Detective McCloskey and asked him to give it to Mr. Chis.
[44] In his testimony on the voir dire, Detective Reid said that he did not allow Mr. Sappiano to speak to Mr. Chis because the interview was at a crucial spot and he did not want to stop it; Mr. Chis’s jeopardy had not changed; Mr. Sappiano was not Mr. Chis’s lawyer; and he understood that Mr. Chis had been satisfied with his call with duty counsel and had not asked to speak to a lawyer again.
The Positions of the Parties
[45] On behalf of the defence, Mr. Royle submits that the Crown has not proven voluntariness beyond a reasonable doubt. At the outset of the interview, Detective McCloskey offered a clear inducement when he spoke about the displacement of Mr. Chis’s family, especially his ill father, because of the execution of the search warrant, and linked cessation of the search to Mr. Chis’s cooperation with the police. This inducement was repeated throughout the interview. When it became clear that his responses had not satisfied Detective McCloskey and that something more was required, Mr. Chis explicitly asked what the police needed from him to stop the search. This query was followed by the truly incriminating portion of the statement. Mr. Royle submits that the cumulative impact of the inducement along with the length of the interview, the method of persistent questioning, Mr. Chis’s assertions that he did not wish to speak to the police, and the failure of Detective McCloskey to tell Mr. Chis that he did not have to say anything, render the statement involuntary. Mr. Royle concedes that Mr. Chis told some lies, but argues that does not make the statement any more or less voluntary.
[46] Mr. Royle also submits that the police violated Mr. Chis’s s. 10(b) Charter rights. Detective Courtice should not have put any time restriction on Mr. Chis’s opportunity to contact counsel again. There was no urgency to interviewing him. When Mr. Chis raised with Detective McCloskey his wish to have counsel present, he was indicating that he wanted to speak to counsel again. It was reasonable for him to want to do so when the questioning continued notwithstanding his assertion of his right to silence. Additionally, the police should have let Mr. Chis speak to Mr. Sappiano when the latter called. He had been retained by the family as counsel for Mr. Chis. Mr. Royle contends that the breaches of s. 10(b) were not technical or trivial, and that on application of the Grant factors, exclusion of the statement is the only remedy under s. 24(2).
[47] Mr. Royle contends that even if the statement is otherwise admissible, its probative value is outweighed by prejudicial effect. The latter portion of the statement contains numerous comments by Mr. Chis about his desire to make a “deal”. Throughout the statement the officer repeatedly asserted his personal belief in Mr. Chis’s guilt. None of this has probative value, but could be relied on improperly by a jury as evidence of guilt. A limiting instruction would be inadequate. The statement cannot easily be edited. It should be excluded.
[48] On behalf of the Crown, Mr. Dionne submits that the Crown has proven the statement voluntary beyond a reasonable doubt. Mr. Chis was given the primary and secondary cautions, which he said he understood. He was given the opportunity to and did speak to duty counsel. He told both Detectives Courtice and McCloskey that he was not going to say anything. He knew from the outset of the interview that he need not answer questions. While Detective McCloskey’s assertion about the search warrant could constitute an inducement, Mr. Chis was not affected by it. He was in full control of what he told the police, and made his own decisions about whether to talk. That is illustrated by his demeanour. He challenged Detective McCloskey about the search. He lied initially about his dealings with the other men. Once he saw the video excerpts and knew that others had informed on him, he decided to speak about the murder. When he accepted that there was no deal to be made, he stopped giving information.
[49] With respect to s. 10(b), Mr. Dionne submits that Detective Courtice did not say that Mr. Chis could not speak to another lawyer. He just wanted to make sure that it was for the purpose of exercising the s. 10(b) rights. There is no right to have a lawyer present during questioning. The jurisprudence does not support the argument that continued questioning of a detainee who asserts his right to silence warrants a further consultation with counsel. Mr. Chis made the choice to speak to duty counsel, and he expressed to Detective Courtice that he was satisfied with the advice he received from duty counsel. Mr. Sappiano was not counsel of Mr. Chis’s choice. The police did not breach s. 10(b) when they refused to allow Mr. Sappiano, who had called in to the station, to speak to Mr. Chis. The defence did not establish a breach of s. 10(b) on a balance of probabilities.
[50] Mr. Dionne submits that in the latter portion of the statement, Mr. Chis discussed his presence at and involvement in the murder. This has significant probative value. His comments about making a “deal” go to the issue of the identity of the perpetrator and show that he viewed himself as culpable. Any concern about prejudice arising from the officer’s assertion of his personal belief can be addressed by a limiting instruction or editing of the statement.
The Legal Framework
(a) Voluntariness
General Principles
[51] In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the Supreme Court of Canada, at paragraph 69, referred to voluntariness as the “touchstone” of the common law confessions rule. A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. The court held that relevant factors include the making of threats, promises or other improper inducements; oppression; lack of an operating mind; and, the use of police trickery that would shock the community.
[52] There are, however, no hard and fast rules as to the circumstances that will vitiate the voluntariness of a confession. The trial judge must be alert to the entirety of the circumstances surrounding the statement, including the “particularities” of the interviewee: see paragraph 42. The analysis must be a contextual one, and all relevant factors must be considered: see paragraphs 47 and 68 to 71.
[53] Subsequently, in R. v. Singh, 2007 SCC 48, the court observed that, in the context of a police interrogation of a person in detention who knows he is speaking to a person in authority, the confessions rule encompasses the right to silence, meaning an accused person’s right to make a meaningful choice whether to speak to the police or not. Voluntariness requires that the court scrutinize whether the accused was denied his right to silence. The common law affords greater protection to the accused because of the burden on the Crown to prove voluntariness beyond a reasonable doubt and automatic exclusion of the statement if the test is not met. The court held that accordingly, there is no point in conducting a distinct Charter s. 7 inquiry.
[54] On the question of voluntariness, the court held that the focus is on the conduct of the police and its effect on the individual’s ability to exercise his free will. The test is an objective one, but the individual characteristics of the subject are relevant considerations in applying the objective test: see paragraph 36.
[55] The court said at paragraph 38 that, “The mere presence of a doubt as to the exercise of the detainee’s free will in making the statement” will render it inadmissible under the common law. Police persistence in questioning an accused in the face of his repeated assertions of the right to silence may deny him a meaningful choice whether to speak or to remain silent: see paragraphs 47 and 53.
[56] The court observed that if the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a violation of the s. 7 right to silence: see paragraph 37.
[57] The court recognized the importance to the investigation of crime of police questioning of persons suspected of committing criminal offences, and pointed out that there is no right not to be spoken to by the police: see paragraph 28. It remains open to police officers to use legitimate means of persuasion to encourage a person to talk to them: see paragraph 47.
Inducements
[58] The court held in Oickle that not all inducements to confess are improper. An inducement becomes improper only when it, standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. The court said, at paragraph 57, that the most important consideration in all cases is to look for a quid pro quo offer by the police. Where the accused is treated properly by the police, it will take a stronger inducement to render the confession involuntary: see paragraph 71.
[59] Subsequently, in R. v. Spencer, 2007 SCC 11, the court clarified that while a quid pro quo offer is an important factor in establishing the existence of a threat or promise, any quid pro quo offer does not automatically render a statement involuntary. It is the strength of the inducement having regard to the particular individual and his circumstances that is to be considered: see paragraph 15.
[60] In Oickle, the court held at paragraph 55 that comments such as, “It would be better if you told the truth” require exclusion of a statement “only where the circumstances reveal an implicit threat or promise.” The use of appeals to conscience and morality will not generally produce an involuntary confession, because the inducement is not in the control of the police.
Oppression
[61] Oppression refers to police conduct and to circumstances created by the police. Oppressive circumstances are not limited to inhumane treatment by the police. An atmosphere of oppression can be created by “excessively aggressive, intimidating questioning for a prolonged period of time”: see Oickle, at paragraph 60.
[62] The use of non-existent evidence to convince the interviewee that protests of innocence, even if false, are futile is another possible source of oppressive conditions.
[63] The court commented in Oickle at paragraph 68, that “oppressive conditions and inducements can operate together to exclude confessions.”
Operating Mind
[64] The requirement that the subject have an operating mind means that he must know what he is saying and that he is saying it to a police officer who can use it to his detriment: Oickle, at paragraph 63.
(b) Right to Counsel
[65] The purpose of the s. 10(b) right to counsel, as expressed by the Supreme Court of Canada in R. v. Sinclair, 2010 SCC 35, at paragraph 26, is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights.” The court said that the emphasis is on assuring that the detainee’s decision to cooperate with the investigation or decline to do so is “free and informed.” The right does not, however, guarantee that the decision is wise, or guard against subjective factors that may influence the decision.
[66] The court pointed out that the s. 10(b) right is not to be confused with the s. 7 right to silence, although s. 10(b) supports the detainee’s s. 7 right to choose whether to cooperate with the police investigation or not, by giving him access to legal advice about his situation.
[67] The court held that s. 10(b) does not confer a constitutional right to have a lawyer present during a police interview: see paragraph 42. This was reiterated in R. v. McCrimmon, 2010 SCC 36.
[68] The court further held that normally, s. 10(b) affords the detainee a single consultation with a lawyer. A request, without more, to speak to counsel again does not trigger a right to a re-consultation. A second consultation with counsel is required where a change of circumstances makes this necessary to fulfill the purpose of s. 10(b) to provide the detainee with legal advice about his choice to cooperate with the police investigation or to decline. The change of circumstances must be “objectively observable”, and it is not enough for the detainee to assert after the fact that he was confused or needed help: see paragraph 55. Some examples include: police requests to submit to non-routine procedures; a change in jeopardy; in the case of a detainee who waived his right to counsel, events indicating that the detainee did not understand his s. 10(b) rights; and, police undermining the legal advice the detainee received. These are not closed categories.
[69] It is assumed that the initial legal advice was sufficient and correct in relation to how the detainee should exercise his rights in the context of a police investigation. The failure to provide an opportunity to re-consult counsel breaches s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice is no longer sufficient or correct: see paragraph 57.
[70] The court in Sinclair asserted that a detainee has the right not to say anything, to decide what to say and when: see paragraph 58. However, while the police must be respectful of Charter rights, there is no rule that requires them to automatically retreat when a detainee states that he has nothing to say: see paragraph 63.
[71] In R. v. Willier, 2010 SCC 37, the court held that where a detainee has spoken with counsel, unless the detainee indicates, “diligently and reasonably”, that the advice he received is inadequate, the police may assume that he is satisfied with the exercised right to counsel and proceed to conduct an investigative interview: see paragraph 42.
Analysis
(a) Voluntariness
[72] I find that Mr. Chis was properly cautioned and given his rights to counsel before he arrived at the station. In response to the caution given by Detective Courtice, he said that he understood. He had the opportunity to and did speak to duty counsel by phone from the station, for several minutes. After doing so, he told Detective Courtice that he did not intend to say anything. Similarly, he told Detective McCloskey at the outset of the interview that he was not necessarily going to say anything in response to questions. I find that he knew, before Detective McCloskey even stepped into the room, that he had the right to remain silent. His question about the meaning of the word “caution” was a question about terminology, and not about his rights. I find that the fact Detective McCloskey explained the meaning of the caution without reiterating the right to remain silent had no impact on Mr. Chis’s understanding of his right.
[73] It is, however, a factor that I consider in assessing Detective McCloskey’s testimony about the conduct of the interview.
[74] I find that Detective McCloskey went into the interview room intending to elicit if not a full confession, at least an incriminating statement. He was well informed about the evidence gathered by the police, and also about the personal circumstances of Mr. Chis. The interview that he conducted reflected a planned strategy on his part.
[75] I reject Detective McCloskey’s testimony that the initial phase of the interview was intended to both build rapport and obtain personal information about Mr. Chis in the event of a bail hearing. Mr. Chis was charged with murder. There was no imminent bail application. In any event, the police already had information about Mr. Chis’s background, including information apparently obtained from Facebook. I find that the sole purpose of the initial phase of the interview was to identify potential personal vulnerabilities, with a view to using them to try to elicit a confession. I do not suggest that this is necessarily always improper. It becomes improper, however, when the police play on those vulnerabilities to craft a quid pro quo offer in order to overcome a detainee’s wish to remain silent. I find that that is what happened in this case.
[76] Detective McCloskey acknowledged that he knew about the illness of Mr. Chis’s father before he went into the interview room. He brought with him into the interview room a photograph of Mr. Chis with his parents taken before his father became ill, a photograph of his father taken after he had a heart attack, and a copy of the search warrant. He used the initial phase of the interview to verify that Mr. Chis viewed himself as a dedicated son who put family first, and that his father’s illness was an over-riding concern to him, so much so that he put his job at risk. Only then did Detective McCloskey produce the photographs and the search warrant. He suggested that because of Mr. Chis, the police would spend six months in possession of the family property, searching it as had been done in the Pickton case where “the entire place” was dug up, with the result that his parents would be displaced, his ill father would not have a place to come back to, the planned sale of the property could not proceed, and “huge burdens” would fall on the family. He told Mr. Chis that this was something Mr. Chis needed to consider while they were in the interview room, that they were going to talk about the murder that the officer knew Mr. Chis had committed, and that it was up to Mr. Chis to explain why.
[77] I find that Detective McCloskey quite deliberately linked the execution of the search warrant to Mr. Chis answering his questions. In doing so, he created a quid pro quo offer. The message was clear: unless Mr. Chis explained the murder to Detective McCloskey, the police would proceed with an extended invasive search of the family property, and his parents, including his very ill father, would suffer the consequences. I find that this was an inducement of some strength, given Mr. Chis’s personal circumstances. Indeed, it bordered on a threat: “Tell me that you committed the murder and why, or else we will deny your family their home for months while we dig up the entire property”.
[78] Detective McCloskey returned to the topic after 7:25 p.m., this time saying that the search would continue for as long as it took and suggesting that the least Mr. Chis could do was to explain why the murder happened. He expanded the negative consequences of the police search to include the relentless pursuit of Mr. Chis’s parents by the media, who would videotape everything the police did at the house for as long as it took, and then track down his mother and his father.
[79] It was after the officer linked cessation of the search to cooperation in answering questions that Mr. Chis’s expressed resolve not to speak to the police began to deteriorate. He provided some initial information to the police. Whether those initial responses were true or not, I find that they were prompted by the inducement offered by the officer. The officer made it very clear to Mr. Chis that he did not accept and did not believe those answers. I find that the inducement was in Mr. Chis’s mind as he watched the excerpts of the video interviews, after which he made the utterances that are potentially inculpatory of involvement in the murder. This is apparent from the question he asked after viewing the video excerpts: “What do you guys need from me to stop the search and not ruin their lives?”
[80] The offer of the inducement, in combination with other aspects of the interview including the atmosphere created by Detective McCloskey, leaves me with a reasonable doubt about the voluntariness of the statement. In particular:
• The interview was lengthy, spanning more than eight hours in total, during which time the police had total physical control of Mr. Chis.
• I find that Detective McCloskey’s early assertion to Mr. Chis that the police needed to learn about him so that they could advise Crown counsel and the courts “about who you are” was not truthful, and was misleading.
• When he first spoke about the execution of the search warrant and the displacement of the family, Detective McCloskey also misled Mr. Chis about the significance of the issuance of the warrant. In the context of telling Mr. Chis of his own belief in Mr. Chis’s guilt, Detective McCloskey suggested that judges did not sign off on search warrants to search properties if they did not share the belief of the police. He continued on and made an exaggerated comparison to the Pickton case, in which he suggested that the police dug up “the entire place” and found “bodies all over the property”.
• After Detective McCloskey told Mr. Chis that he could not have a lawyer present during the interview, Mr. Chis again said that he was not going to answer questions. Unlike in Singh, where the officer either acknowledged that the accused had that right or explained that he had a duty to continue to ask questions, Detective McCloskey responded by telling Mr. Chis that he believed Mr. Chis had committed the murder and that was what they needed to talk about. At various points after that, the officer told Mr. Chis that they were going to talk, that it was up to Mr. Chis to explain why he committed the murder, and that Mr. Chis was in the interview room to explain “why we’re here today”. Rather than acknowledging Mr. Chis’s right to remain silent, the officer created the impression that Mr. Chis had an obligation to provide explanations.
• The manner of the interview was persistently accusatorial. Detective McCloskey repeatedly asserted that Mr. Chis committed the murder, that he believed that Mr. Chis committed the murder, that the truth was that Mr. Chis committed the murder, or that there was no doubt in the minds of the police that Mr. Chis committed the murder. At times, he argued with Mr. Chis when Mr. Chis denied the accusation.
• As the interview progressed, there were times when the officer raised his voice to Mr. Chis.
[81] After considering all the circumstances, I am left with a reasonable doubt as to the voluntariness of the statement.
(b) Right to Counsel
[82] I find that Mr. Chis was given his rights to counsel by Detective Courtice, which he chose to exercise by speaking to duty counsel. There is neither direct evidence nor a basis to infer that the legal advice Mr. Chis received from duty counsel was not sufficient and correct. To the contrary, he told Detective Courtice that he was satisfied with having spoken to duty counsel. He confirmed to Detective McCloskey that he was satisfied with the advice he had been given. He told Detective Courtice that his purpose in looking at the phone book was to find a lawyer for his first court date. He confirmed to Detective McCloskey that he was looking at the lawyers’ phone book with reference to the future.
[83] I accept Detective Courtice’s testimony about his purpose in speaking to Mr. Chis about the phone book. I accept the officer’s testimony that if Mr. Chis was not satisfied with the advice he received from duty counsel, the officer would have allowed him to contact another lawyer. I find that when Detective Courtice told Mr. Chis that he was to say “now” that he intended to contact a named lawyer before speaking to the police, the officer was not placing a time restriction on Mr. Chis, or discouraging him from asking to contact a specific lawyer. He was simply indicating that he needed to know what Mr. Chis wanted to do. He in fact told Mr. Chis that he would wait until Mr. Chis picked out a lawyer and would then place a call to that lawyer. When Detective Courtice said that the police were not going to wait “all night” for Mr. Chis to find a lawyer, it was only a little after 2:45 p.m. He was not placing a restriction on Mr. Chis. He was simply indicating the reality recognized in Sinclair at paragraph 58, which is that a detainee cannot needlessly delay an investigation. Mr. Chis had spoken to duty counsel already. If Mr. Chis was not satisfied with the advice he received and wished to pursue an opportunity to contact a specific lawyer, he had an obligation to act with reasonable diligence: see McCrimmon at paragraph 17. In fact, as he indicated to the police, Mr. Chis did not wish to contact a specific lawyer before the police spoke to him.
[84] I find that in the circumstances of this case, Detective McCloskey did not breach Mr. Chis’s s. 10(b) rights when he told him that he could not have a lawyer present while he was questioned, nor was he required to offer Mr. Chis another opportunity to speak to a lawyer by phone. Mr. Chis had already spoken to duty counsel. His circumstances had not changed since that conversation. He was told before he was brought to the station that he was under arrest for the murder of Peter Gavin. Detective McCloskey reiterated before the interview began that Mr. Chis was charged with murder. Soon after, Mr. Chis said that he understood what he was arrested for, and added that the charge was “not gonna stick”. Mr. Chis knew even before Detective McCloskey came into the interview room that he would be appearing in court, as he referred to this in his conversation with Detective Courtice about the phone book. Detective McCloskey told him that he was “entering the court process” and was going to present himself in court. I find that Mr. Chis knew very well that he was not at the station just to be questioned and then let go. As I have indicated, Mr. Chis had spoken with duty counsel, and confirmed to both officers that he was satisfied with the advice he received from duty counsel. He was aware that he did not have to cooperate with the police. As soon as Detective McCloskey told him that he did not have the right to have a lawyer with him, Mr. Chis said that he was not going to answer any questions.
[85] Mr. Chis did not have a constitutional right to have a lawyer present during the interview. Further, I find that there were no changed circumstances requiring renewed consultation with a lawyer to fulfil the purpose of s. 10(b).
[86] The evidence of Detective Reid and that of Mr. Sappiano differ in some details. They agree, however, and I find that Mr. Sappiano called the station around 10:00 p.m. while Mr. Chis was still being interviewed, that after explaining that he had been hired by Mr. Chis’s family he said that he wanted to speak to Mr. Chis, that Detective Reid refused because Mr. Chis was still being interviewed and said that Mr. Chis had already spoken to duty counsel, that at Mr. Sappiano’s urging the officer consulted a Crown counsel, and that the officer then reiterated to Mr. Sappiano that he would not be allowed to speak to Mr. Chis.
[87] I find that Detective Reid did not breach s. 10(b) by refusing to allow Mr. Sappiano to speak to Mr. Chis. I have not been referred to any appellate court jurisprudence that stands for the broad proposition that where a lawyer calls a police station and asks to speak to a detainee who has already chosen to exercise and has exercised his or her s. 10(b) rights by speaking to duty counsel, the police must interrupt their interview and allow the lawyer to speak to the detainee at that moment. As I have said, Mr. Chis chose to exercise his s. 10(b) rights by speaking to duty counsel. He did not suggest to the police that he was expecting Mr. Sappiano in particular to call, or that he had asked his family to arrange for a lawyer to call, or even that he anticipated his family might arrange for a lawyer to call and that he wanted to speak to that person if and when the call came in. He indicated to the police that he was satisfied with the advice he received from duty counsel. I have found that there were no changed circumstances requiring renewed consultation with a lawyer.
[88] There may well be situations, aside from those where the police have left word for a specific lawyer to call at the detainee’s request, where the police will be required to advise a detainee that a lawyer has called into the station and is on the phone to speak to him or her. In the particular circumstances of this case, however, the refusal of the police to allow Mr. Sappiano to speak to Mr. Chis did not breach s. 10(b).
[89] The defence has failed to establish a breach of s. 10(b) on a balance of probabilities.
(c) Residual Discretion to Exclude
[90] Mr. Royle also relies on my residual discretion to exclude evidence the probative value of which is outweighed by its prejudicial effect: see, for example, R. v. Barges, 2005 47766 (ON SC), [2005] O.J. No. 5595 (S.C.J.).
[91] The interview was peppered from early on with the officer’s assertions that he knew Mr. Chis committed the murder, that there was no doubt in his mind that Mr. Chis committed the murder, and that Mr. Chis had to give an explanation. When Mr. Chis denied the accusations, Detective McCloskey responded by arguing with him. Detective McCloskey analogized the search that the police were about to embark on to that in the Pickton case, where there were “bodies all over the property”. He asserted that Mr. Chis was a gambler who had been violent with people in the past. He reiterated, at some length, accusations that other persons had made, out of court, about Mr. Chis and his responsibility for the murder. After 10:35 p.m., Mr. Chis’s inculpatory utterances became intertwined with his requests to make a “deal” for himself.
[92] While I agree with Crown counsel that the interview has probative value because it contains admissions of involvement in the killing, much of it consists of assertions by the officer that are not probative or admissible, but have significant prejudicial effect, including allegations of bad character, and expressions of belief in Mr. Chis’s guilt. Those assertions permeate the interview and are intertwined with admissions by Mr. Chis. To accord probative value to Mr. Chis’s attempt to negotiate a “deal” for himself would invite the trier of fact to use those portions of the statement as “consciousness of guilt” on his part. This would be a dangerous approach that is at odds with appellate court jurisprudence cautioning about the risks of inviting jurors to engage in such reasoning. I am not satisfied that the statement could be edited without risking distortion, or that there are limiting instructions that would remove the risk of prejudice.
[93] Even if I found that voluntariness was established beyond a reasonable doubt, I would exclude the statement on the basis that its probative value is outweighed by its prejudicial effect.
Conclusion
[94] The Crown has failed to prove the voluntariness of the statement beyond a reasonable doubt. It is not admissible.
Fuerst J.
Released: January 22, 2015
CITATION: R. v. CHRISTIAN VASILE CHIS, 2015 ONSC 481
COURT FILE NO.: CR-12-10103
DATE: 20150122
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHRISTIAN VASILE CHIS
Ruling on admissibility of statement
Fuerst J.
Released: January 22, 2015