ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-28
DATE: 20150731

B E T W E E N:

HER MAJESTY THE QUEEN

Keeley Holmes, for the Crown

• and -

STEFANO DAMASSIA

Jonathan M. Pyzer, for the defence

HEARD: May 26, 27, 28, 29, 2014 at Brampton

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

RULING REGARDING THE ADMISSIBILITY OF THE
ACCUSED’S STATEMENT TO THE POLICE

F. Dawson J.

[1] The accused challenged the admissibility of his statement to the police made on December 19, 2011. He was arrested that day for a sexual assault that allegedly occurred on December 17, 2011 at a party the accused attended. Most of the people at the party were about 19 years of age and were drinking heavily. It was alleged that the accused had sexual intercourse with the complainant when she was intoxicated to the point of incapacity to consent.

[2] The blended voir dire held to consider these issues took place on May 26, 27 and 28, 2014. On May 29, 2014 I provided counsel with my “bottom line” decision and a brief outline of my reasons with an indication I would expand on those reasons later. I anticipated including my reasons for my ruling in my trial judgment on the understanding we would continue immediately with the trial. However, the accused then discharged his counsel resulting in considerable delay. The trial finally proceeded with new counsel from June 1 to June 17, 2015.

[3] These reasons for my ruling are being released concurrently with my trial judgment.

The Evidence

[4] Csts. Wayne Parkins and Pierre Bernard attended at the accused’s residence at about 3:24 p.m. on December 19, 2011. By then they were well into their investigation having interviewed a number of witnesses who attended the party. The accused was 19 years of age and was home alone. He had been napping and came to the door dressed in boxer shorts. He testified he was expecting the delivery of a book.

[5] Csts. Parkins and Bernard testified the accused invited them in. The accused said they more or less motioned their way into the house after identifying themselves as police officers.

[6] Cst. Parkins testified that the accused was arrested for sexual assault at 3:29 p.m. This was preceded by some conversation he had made no note of and did not recall. This differs somewhat from Cst. Bernard’s evidence.

[7] Cst. Parkins testified that the accused asked if he could go put a shirt on. Parkins said he waited in the foyer of the home while Cst. Bernard accompanied the accused to his bedroom for perhaps five to eight minutes. Cst. Bernard testified it was for about five minutes.

[8] The accused testified that Cst. Parkins waited outside and not inside the home. Both police officers testified Parkins was inside. I do not accept the accused’s evidence on this point. One would expect that for officer safety reasons Parkins would have remained inside the house. Nothing turns on this conflict in the evidence. Cst. Parkins testified that the accused was a little surprised when he was arrested.

[9] Csts. Parkins and Bernard both testified that Mr. Damassia was placed in the rear of their small unmarked police car and that Cst. Bernard rode in the backseat with the accused. However, video from the sally port of the police station shows that both officers exited the front of the vehicle at the police station. When the officers saw the video they agreed the accused must have been alone in the rear seat. Both Csts. Parkins and Bernard testified Cst. Bernard provided the accused with his rights to counsel and a police caution once the accused was placed in the car.

[10] Cst. Bernard testified that after he told the accused he was under arrest for sexual assault the accused said “okay”. He did not seem surprised or upset. Bernard agreed he accompanied the accused up to his bedroom. He did not recall making any small talk on the way, as the accused testified he did. They were in the bedroom for a few minutes while the accused changed. They then left the house. The accused did not want to be handcuffed. Cst. Bernard told the accused that handcuffs were required but cuffed the accused to the front.

[11] The accused testified that he was shocked to be arrested. He described some small talk Cst. Bernard made when they went to his bedroom so he could change. The accused then testified that Cst. Bernard told him he would have to go to the police station to give a recorded version of his statement.

[12] According to the accused, Cst. Bernard then said that as long as he cooperated with the police he would be home by dinner time. I note that the accused did not say until well into his cross-examination that Cst. Bernard had said anything tying his being home by dinner to the making of a statement.

[13] Cst. Bernard, of course, testified before the accused did. In cross-examination he said he recalled no conversation in the bedroom about the process that would follow the arrest. He denied telling the accused he would be taken to the police division and that the officers had to ask some questions. When he was asked if he told the accused he would be home for supper if he cooperated he said, “I definitely did not say that.”

[14] It is the factual dispute I have just outlined that is at the root of the accused’s submission that his subsequent statement at the police station has not been proven voluntary beyond a reasonable doubt.

[15] Turning to the right to counsel issue, Cst. Bernard testified that once they were all in the police vehicle he provided the accused with his rights to counsel and a caution that the accused did not have to say anything in answer to the charge but that if he did it could be given in evidence. He read these to the accused from the back of his police notebook. After each portion of the right to counsel he asked the accused if he understood and the accused gave various indications that he did. Full details of what was said were put in evidence.

[16] During submissions the accused’s counsel agreed that Cst. Bernard complied with the informational requirements of s. 10(b) of the Charter during this process, including reference to duty counsel and the 1-800 number. Cst. Bernard concluded the rights to counsel with the question, “Do you wish to call a lawyer now?” He wrote the accused’s response in his notebook as follows: “At this time I’ll be okay.”

[17] Cst. Bernard then told the accused he would be charged with sexual assault and read him a primary caution in the standard form. He asked the accused if he understood and the accused said he did. Cst. Bernard said he then asked the accused, “Do you wish to say anything in answer to the charge?” According to Cst. Bernard the accused responded, “Yeah, I pretty much know what this is about.” In his testimony the accused denied being asked that question or making that answer.

[18] The accused agreed that Cst. Bernard was reading from his notebook in the car. However, he said he stopped the officer a couple of times and asked him to clarify. According to the accused, Cst. Bernard said he would go over it all again at the station. Cst. Bernard’s evidence is that the accused appeared to understand all aspects of his rights when they were read to him in the car. He denied telling the accused he would go over them again at the station. Cst. Parkins heard Cst. Bernard reading the accused his rights but said he was driving and did not pay careful attention to that.

[19] Cst. Bernard did not recall saying to the accused outside the interview room that he looked nervous nor did he make any comment that the accused was sweating. The accused testified that those things were said.

[20] The accused was then taken to an interview room and from that point there is an audio and video recording of what transpired. I will make reference to the page numbers of a transcript of the interview.

[21] At the beginning of the interview, on page 3, Cst. Bernard referred to the fact that when they were in the car he read the accused his rights. Mr. Damassia responded, “Okay”. When he asked if there were any parts the accused did not understand Mr. Damassia did not ask for clarification but asked if there were any additional rights for being native. Mr. Damassia said he was aboriginal. The officer said there were not any additional rights for aboriginals and then asked if there were any parts of the rights which Mr. Damassia wanted him to go over again.

[22] At that point (page 4) the accused asked what the right to counsel means. He asked if he could have someone “sit in to tell me if I shouldn’t answer something”. The officer explained that Mr. Damassia did not have the right to have a lawyer present but told him that he was free to speak to a lawyer at any time. The officer then mentioned that the accused had previously told him he did not want to speak to a lawyer.

[23] Over the course of pages 5 to 7of the interview transcript Cst. Bernard confirmed that he told the accused in the car that he was not obliged to say anything. He also told the accused that everything he said in the room was being recorded and could be used in evidence, confirmed that the accused previously told him he did not want to speak to a lawyer, told the accused that if at any time he wanted to speak to a lawyer all he needed to do was ask, said that if the accused did not know a lawyer the officer could call legal aid, and explained that duty counsel was a lawyer on standby who was available and could be reached for free advice through a 1-800 number.

[24] In response to the foregoing the accused said, “We’ll proceed as we have to”. He was then given a secondary caution which was also further explained to him. He said he understood it. The accused then agreed that he had not been threatened, had not been promised anything and that he had been treated with respect so far.

[25] Cst. Bernard then asked the accused if there was anything that was not clear as far as his legal rights were concerned. The accused laughed and said, “I know the Charter of Rights and Freedoms”. Cst. Bernard had not previously referred to the Charter by name.

[26] Cst. Bernard then proceeded with the interview. The audio-video recording shows that Cst. Bernard was polite and mild mannered throughout. The interview was at all times conducted in a respectful and low key fashion. It is not suggested that there were any threats, inducements, or tricks and there were certainly no oppressive circumstances.

Was There a Violation of s. 10(b) of the Charter?

[27] The onus is on the accused to establish a violation of s. 10(b) of the Charter on a balance of probabilities.

[28] The accused’s counsel conceded that there was no violation of the informational component of s. 10(b) during the reading of the rights in the car. In any event, I accept Cst. Bernard’s evidence about how that was done. The accused agrees the officer was reading from his notebook. I also observe that the accused testified that when the officer asked him in the car if he wanted to speak to a lawyer he responded with either, “Not at this time”, or “At this time I will be okay”. The second response is exactly what the officer wrote down in his notebook. The officer recorded all of the accused’s responses and the fact that the accused’s evidence about this one exactly matches what the officer recorded tends to confirm the accuracy of the officer’s evidence.

[29] It is also apparent that during the first few pages of the interview transcript the accused and Cst. Bernard are discussing what occurred earlier in the car. During the accused’s testimony on the voir dire he denied that Cst. Bernard had previously told him of his right to remain silent. Yet at page 5 of the transcript it is clear the officer referred to telling Mr. Damassia in the car that he was not obliged to say anything. Mr. Damassia agreed by saying, “Mm-hmm”. His agreement is clear on the video. Consequently Mr. Damassia’s sworn testimony is proven inaccurate by the interview recording. While this is directly relevant to the voluntariness issue, from a credibility standpoint it is significant with respect to the credibility and reliability of the accused’s evidence on both the voluntariness and s. 10(b) application.

[30] In terms of the alleged s. 10(b) violation, the accused’s counsel placed his emphasis on what occurred during the first few minutes of the recorded interview. I do not agree with counsel’s submission that when the accused asked about additional rights for aboriginal people he was indicating that he did not understand what had been explained to him already. However, I do agree with the submission that once the accused asked what his right to counsel meant, a further obligation was imposed on Cst. Bernard to go over the accused’s rights again in a manner that ensured the accused understood them. This requirement, and the circumstances which trigger it, are discussed in R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, [1991] S.C.J. No. 31, at para. 44; R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, at para. 39; and R. v. Devries, 2009 ONCA 477, [2009] O.J. No. 2421 (C.A.) at para. 38.

[31] Based on what appears in the transcript of the accused’s interview from pages 4 to 7, I conclude Cst. Bernard fully complied with those additional obligations. He re-explained the accused’s right to counsel in plain language. He did not once again simply go through the standard form of rights contained in the back of his notebook. However, he covered all facets of the informational component of the right to counsel and explained the resources that were available should the accused wish to exercise his right to counsel. He emphasized that the accused could speak to a lawyer at any time. All he had to do was ask. He explained that he could call legal aid, and that duty counsel was a standby lawyer available by a toll free number. Cst. Bernard covered all of the requirements mentioned in Bartle at para. 28. The accused indicated that he understood.

[32] The accused testified on the voir dire that he did not know what duty counsel was. He said he did not know how long it would take to contact duty counsel and he did not understand that he had a right to consult a lawyer in private, right at that time. He said it was for those reasons that he did not ask to speak to a lawyer.

[33] I simply do not believe this evidence. The accused is an intelligent and educated young man. He spoke intelligently with the officer about his rights. He was able to assert himself – he was not retiring. The officer in very clear terms told him that he could speak to a lawyer at any time. He explained that duty counsel was a lawyer on standby. Although expressly given the opportunity to seek further clarification the accused did not do so. He said he knew his rights and chose to proceed with the interview. Given these findings this was not a situation in which the officer had an obligation to advise the accused that he had a duty to hold off until the accused spoke to counsel. The accused was not equivocating. He continued in his previous stance that he did not wish to contact a lawyer.

[34] As to the right to speak to a lawyer in private, I have been referred to no authority for the proposition that a comment on privacy forms part of the informational component of s. 10(b).

[35] As the accused did not ask to speak to a lawyer at any time there was no obligation on Cst. Bernard to go further than he did.

[36] The s. 10(b) application fails.

The Voluntariness Issue

[37] The onus is on the Crown to establish the accused’s statement voluntary beyond a reasonable doubt. The determination of this issue requires a full contextual analysis against the standard of voluntariness as restated by the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. The focus is on the conduct of the police and the effect of that conduct on the accused’s ability to exercise his or her free will in choosing whether or not to speak to the police. The test is an objective one. See R. v. Singh, 2007 SCC, 2007 SCC 48, [2007] 3 S.C.R. 405.

[38] The accused’s submission on voluntariness is centred on the comment he alleges Cst. Bernard made to him in the bedroom that as long as he cooperated he would be home by dinner time. The accused repeated many times throughout his evidence that he was only saying the things he said to Cst. Bernard because he wanted to be home by dinner time. He said he did not know what the alternative was but, in essence, that he did not want to find out. He maintained that he did not want to take any stance that might upset Cst. Bernard. The accused testified that he was young and scared. He had never been arrested before.

[39] Cst. Bernard categorically denies making the comment on which the defence submission rests. If such a comment was made it would certainly be capable of constituting an improper inducement within the meaning of Oickle.

[40] Given the conflict in the evidence the first consideration is my factual finding. If Cst. Bernard made the comment, then in the context of the other evidence I would be strongly inclined to conclude it did improperly induce the accused’s statement. As whether the comment was made is the critical issue and the onus is on the Crown to prove voluntariness beyond a reasonable doubt, I have instructed myself in accordance with R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. It is not a matter of simply choosing between the evidence of the accused and the officer.

[41] Having taken this approach I have come to the conclusion that I do not believe the accused’s testimony. There are a number of things which in combination lead me to conclude the accused is not telling the truth.

[42] As I mentioned when dealing with the s. 10(b) issue, there are parts of the accused’s evidence which make no sense. He claims he did not know what duty counsel was although the officer clearly explained it to him. He testified that he had never been told in the car that he had the right to remain silent but he acknowledged near the beginning of the statement that that had occurred. The only conclusion I can come to is he is not telling the truth about these matters on the voir dire.

[43] Towards the end of the interview Cst. Bernard asked the accused if he had any questions for him. The accused said not really. Then, at page 83 of the interview transcript he said, “I don’t have anything to hide. That’s why I didn’t lawyer up. … I’m consenting to as much as I can.”

[44] Having carefully watched and read the entire interview, I find that this statement conveys a lot about what was going on during the interview. It accurately reflects the accused’s overall motivation and approach. And more significantly for current purposes, it is dramatically inconsistent with his testimony on the voir dire about what his mental state was during the interview.

[45] When he was cross-examined about this comment the accused said he “was not entirely sure” what he meant by it. He then added that he guessed he was just trying to “reassure” Cst. Bernard that he was not trying to give him a hard time. I do not accept the accused’s evidence that he did not know what he meant by this comment. The accused appeared to me to be evasive as he was cross-examined further about what he meant when he used the term “lawyer up”. It appeared that he did not to want to acknowledge that it meant that he understood he had the right to call a lawyer and not say anything – in other words that he understood his rights. He chose to use the term, the meaning of which is well understood in the context of popular entertainment media.

[46] It was apparent throughout the interview and the accused’s voir dire testimony that he is an intelligent and educated young man. He presented in both contexts as being quite sure of himself and in control. He had no difficulty in asking the officer whether as a person with aboriginal heritage he had additional Charter rights. He said he knew his “Charter of Rights and Freedoms”. That was terminology he injected into the discussion about his rights. He asked if he could have a lawyer sit with him and tell him not to answer certain things. Having regard to his evidence overall and the way that he gave it, his comment, “We’ll proceed as we have to” strikes me, not as an indication that he was not waiving his right to counsel as his counsel contended, but as a more self-assured statement that he knew what was going on and was making a choice to proceed. In my view, that is what comes through watching the video of the interview and that is what is represented by the accused’s “lawyer up” comment. He is conveying that he understands his rights and is choosing not to invoke them because he has nothing to hide. He appears to be eager to give his side of the story.

[47] In his evidence on the voir dire the accused puts forward a description of a mental state during the interview that is belied by an examination of the recorded interview itself.

[48] In addition, I must say that during his voir dire testimony the accused gave the impression of considerable confidence in his intelligence. At times he appeared to be somewhat cocky and at other times to be trying to obfuscate. I recognize that demeanour must be used with caution and my determination of a lack of credibility in the accused’s evidence does not rest substantially on demeanour, but it is a significant factor. I had a considerable opportunity to observe the accused on the video recording of the interview and during his voir dire testimony. I am satisfied that he felt he could talk his way out of difficulty when he was speaking with the police and that he was eager to tell his side of the story to Cst. Bernard. Now that that tactic has failed he has gone into the witness box and again, with a certain confidence in his own abilities, attempted to repaint the picture.

[49] As I reject the accused’s evidence as untruthful it cannot contribute to a reasonable doubt about voluntariness.

[50] Cst. Bernard was extremely careful to fully explain the accused’s rights to him. He was low key and professional throughout the interview. There were no oppressive tactics. About the only criticism that can be levelled at Cst. Bernard is that he used some leading questions during the discussion of the accused’s rights. That caused me to examine his conduct during the interview with care. While it would have been preferable to have avoided leading questions concerning the discussion of the accused’s rights it has not affected my conclusion on voluntariness or that the accused was untruthful when he testified on the voir dire.

[51] I accept Cst. Bernard’s testimony that he did not make the comment that if the accused co-operated he would be home for dinner. I also accept his evidence of what transpired in the car. The recorded interview establishes that there is no other basis for a concern about the voluntariness of the accused’s statement.

[52] The evidence which I accept establishes the voluntariness of the accused’s statement to the police beyond a reasonable doubt.

Conclusion

[53] The accused’s statement to the police is admissible.

F. Dawson J.

Released: July 31, 2015