R. v. Simon, 2015 ONSC 5335

COURT FILE NO.: CR14-0016

DATE: 20150826

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Jordan Simon

BEFORE: The Honourable Mr. Justice R.G.S.D. Del Frate

COUNSEL: Stacey Haner, for the Crown

Brad Middleton, for the Accused

HEARD: August 11, 2015 in Gore Bay, Ontario

ruling on voir dire

[1] The accused is facing two counts of assault, one count of threatening to cause bodily harm, one count of threatening to cause death, one count of unlawful confinement and one count of choking. These charges arose from an incident on August 17, 2013, in Wikwemikong and involved himself and the complainant Holly Rose Katherine Sutherland.

[2] On that evening, the complainant was socializing with the accused and others when it was decided that they would leave the apartment to continue partying at another residence. The complainant had arrived at around 10:30 and remained in the apartment until they were leaving at approximately 2 a.m. She had not been drinking but the accused may have been considered impaired.

[3] During the course of the evening, the complainant availed herself of the accused’s computer to access her Facebook page. It appears that she had been exchanging emails with a friend of hers. As they were about to leave, the accused noticed that the complainant’s Facebook page was still open. He became upset over some of the messages that the complainant had been exchanging with someone.

[4] He confronted her and a disagreement ensued. This continued out on the street with loud exchanges between the two. At some point, the two became involved in a physical altercation with both of them rolling around on the road.

[5] The loud exchanges attracted the attention of Tyler Aiadens and his girlfriend. He went to the window and observed one person on her back and another person on top of her struggling with each other. The woman was in apparent distress. He proceeded to call 911 and asked that the police attend.

[6] While on the phone, both of these individuals came to the door. He recognized them to be Jordon Simon and Holly Sutherland. Holly ran into the house and seemed quite distressed. Jordon remained outside. He also was upset and was bleeding from an area around his eye.

[7] The police arrived and the situation settled down somewhat. Constable Eddie Shawana of the Wikwemikong Tribal Police Services spoke to the complainant and formed reasonable and probable grounds to arrest the accused. His partner, Constable Otosquaiob cuffed the accused and escorted him to the police station.

[8] At the station and while still cuffed, Constable Shawana cautioned the accused and then secured him in the cell. He concluded that although the accused was under the influence of alcohol, the accused understood what was happening even though there was no response from him. He then proceeded to question the complainant. He observed injuries on both the complainant and the accused.

[9] Constable Todd Fox arrived at the scene and assisted in the investigation. After Constable Shawana informed him that he had reasonable and probable grounds, he arrested the accused and read to him the rights to counsel. He concluded that he was under the influence of alcohol and that he had sustained some kind of injury around his eye. The accused was cooperative and stated that Holly owed him money and that Holly had punched him. The accused appeared to understand what he was saying and at one point stated that he wished to contact duty counsel.

[10] He provided him the opportunity at 2:09 and again at 4:59 after further charges were explained to him. The accused seemed to understand and he wanted to talk to counsel. This was facilitated and he spoke to duty counsel for approximately ten minutes commencing at 4:59.

[11] Detective Sergeant Derrell Mandamin was first contacted at 3:40 a.m. and when he came on duty at 9 a.m. he was briefed on what had transpired. Since the accused had attended in WASH court, it was not until approximately 11:00 that he had any direct contact with him.

[12] He proceeded in his usual fashion to inform him that he wanted to take a statement and escorted him from the cell to the video room. He described the accused as being normal. Prior to commencing taking the statement he did not read him his rights to counsel.

[13] Approximately half way through the statement, talk of an apology ensued and because the justice of the peace had indicated that there would be a no contact order, the accused stated that he could not give her such an apology.

[14] Detective Sergeant Mandamin suggested that he write out an apology and gave him some paper on which to write. On that point the officer left the video room. The video then depicts the accused starting to write on the paper pad. The first draft was not satisfactory to the accused and thus crumpled it up. He then commenced writing the second draft. When he was finished, the officer returned to the room. A discussion ensued as to whether the statement could be used against him in court. When the officer said that everything that he stated to him could be used against him, the accused declined to give him the written pages.

[15] The discussion then turned to other issues and eventually the statement ended approximately 25 minutes after it commenced.

[16] The accused testified that after he was arrested and placed in the cell, he recalls being awakened at approximately 5:00 at which time he spoke to counsel. Later that morning he was brought to WASH court and at approximately 11:00 he commenced the video-taped statement to Detective Sergeant Mandamin. At no time was he told that he did not have to give a statement by either the justice of the peace or Detective Sergeant Mandamin.

[17] He did admit in cross-examination however that he was aware that he was speaking to police officers when first arrested and throughout. He was aware of what was happening even when he was speaking to duty counsel. At no time was he threatened by any of the officers and in particular by Detective Sergeant Mandamin.

[18] The Crown submits that at all times, the statement given was voluntary and there was never any compulsion by threats or inducements made by Detective Sergeant Mandamin nor any of the other officers. By the time the statement had been given, the accused had been cautioned on two occasions, had the assistance of duty counsel and had appeared in WASH court. This information was known by Detective Sergeant Mandamin and accordingly, it was not necessary for the Detective Sergeant to re-read the caution.

[19] The important aspects are that the accused knew what he was being charged with and voluntarily made a statement. He had the operating mind at all times and accordingly, the statement is voluntary.

[20] The defence submits that it would have been incumbent on Detective Sergeant Mandamin to caution him prior to the commencement of the taking of the statement. This is a standard procedure. It is clear from the accused’s testimony that when he realized that the written statement could be used against him in court, he refused to provide the statement to the officer. An assumption can be made that had he been cautioned and reminded that his statement could be used against him, he probably would not have given a statement.

[21] Both counsel are in agreement that the determination is whether the statement is voluntary. No Charter issues are being raised.

[22] Having watched the video, I conclude that the demeanour of the accused at all times was normal and that he appreciated what was happening. This was readily apparent in the exchange of whether his written notes could harm him in court. The questions were pointed and relevant. When he realized that the written statement could be used against him, he declined to give his notes to the officer.

[23] After arriving at this decision, he continued to speak to the officer about other matters.

[24] It is also apparent from the video that the officer made no inducements or threats and that the accused was totally aware of what he was being asked to do. I find that his actions were responsible and logical. He was alert, oriented and acted in an entire appropriate manner. Although he stated he had consumed alcohol excessively that previous night, there were no symptoms evident throughout this interview.

[25] I conclude that the statement was voluntary and thus it will be admitted. Counsel may move at the resumption of the trial to have the evidence on the voir dire admitted as part of the trial.

The Hon. Mr. Justice R.G.S. Del Frate

Date: August 26, 2015