COURT FILE NO.: CRIMJ(P)2347/12

DATE: 2015 09 08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

CHRISTOPHER BRIGHT

Applicant

C. Hackett, for the Crown

L. Ali, for the Applicant

HEARD: August 20^th, 2015

REASONS FOR JUDGMENT

LEMAY J.

1The Crown seeks a ruling that a statement made to the police by the accused on July 23^rd, 2010 was made voluntarily. This ruling is sought so that, if the accused testifies, the Crown can cross-examine the accused on the contents of the statement. The accused has applied to exclude his statement, contending that it was obtained in breach of sections 7 and 10(b) of the Charter and, as a result, should be excluded under section 24(2) of the Charter. The accused also opposes the Crown’s voluntariness application.

2On the first application, the Crown has the onus of establishing, beyond a reasonable doubt, that the statement was voluntary. On the second application, the accused bears the onus on a balance of probabilities.

3For the reasons that follow, I am granting the Crown’s application and dismissing the accused’s application. The accused’s statement may be used for the purposes of cross-examination, if he chooses to testify. It is otherwise not part of the record.

Evidence

4As part of the voir dire, the Crown tendered the evidence of Laura Barnhart, who was the officer that conducted the interview with the accused on July 23^rd, 2010. In her evidence, Officer Barnhart (who has since left the Peel Regional Police force) confirmed that she had a telephone conversation with the accused on July 19^th, 2010, and had advised him that he needed to come to the police station on July 23^rd, 2010, at which time he would be arrested.

5The accused ultimately attended at the police station on July 23^rd, 2010, and was met in a waiting room by Officer Barnhart. The accused was taken into a private interview room where he was arrested and advised that he was being charged with two counts of sexual interference and one count of sexual assault. He was also cautioned and given the opportunity to contact duty counsel. The accused ultimately contacted duty counsel prior to being asked any substantive questions by Officer Barnhart.

6The conversation with Officer Barnhart, including the arrest, was videotaped, and I have viewed the videotape and transcript in coming to my decision. The accused’s discussion with duty counsel was, of course, not videotaped or recorded.

7Once the accused had contacted duty counsel, Officer Barnhart proceeded to interview him. On several occasions, the accused stated that he was “confused”. An example of the type of exchange that the accused had with Officer Barnhart is:

BARNHART: Not necessarily. Not necessarily. That-, are you afraid to go to jail?

BRIGHT: No it’s like I come down here and. Okay took time off and…

BARNHART: See? That shows me what a great guy you are.

BRIGHT: And it’s like okay, the lady on the phone said don’t answer questions.

BARNHART: Mm-hmm.

BRIGHT: I’m just all like confused and…

BARNHART: Yeah, but you’re a good person too, right? Right? And good people like to tell the truth and like to get things off their chest.

BRIGHT: Yeah

BARNHART: Right? And that’s what I think you are, a good guy, made a mistake, right? One mistake, two mistakes that’s it, all right?

BRIGHT: Yeah.

BARNHART: And then no more mistakes, right?

BRIGHT: (Nods head yes.)

BARNHART: Right?

8The accused did not testify on the voir dire. Therefore, I am left with reviewing the context of the statement to determine what the accused was confused about and what inferences should be drawn about what was said in the interview. I will outline this review in the section on voluntariness below.

9The only evidence I had on the voir dire was Officer Barnhart’s testimony, and the video of the interview. I also had a transcript of the interview to assist with my review of the video.

Voluntariness

10The modern Canadian authority that outlines the test for voluntariness is R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. In this decision, the Court outlines that, for a statement to be voluntary, it must meet four requirements:

(a) There cannot be any threats or inducements offered to the person making the statement.

(b) There cannot be oppression. Voluntariness cannot exist in circumstances where the will of the accused has been overborne.

(c) The accused person must have an “operating mind”.

(d) There cannot be any police trickery.

11Both counsel focused their arguments on these four points. As a result, I will review each of these requirements as they apply to this statement now. In conducting this analysis, I recognize that it requires a consideration of the context in which the statement is given.

Threats or Inducements

12This issue was not strenuously argued by defence counsel. Having reviewed the evidence, I see nothing that could possibly amount to a threat or an inducement. The statement contains a discussion of whether the accused is concerned about going to jail and about his charges. However, Officer Barnhart makes no promises or threats in regards to jail time or the charges. Indeed, the accused was charged at the outset of the interview, which makes it very difficult to see how any threat or promise could flow from the mere existence of those charges.

13The only other discussion that could possibly amount to an inducement were Officer Barnhart’s suggestions that the accused was a good guy and she had a good feeling about him. Again, this is not an inducement. It is a perfectly appropriate interrogation technique. As a result, I see no basis for finding that there were any threats or inducements with respect to this statement.

Oppression

14One of the leading cases on oppression is R. v. Hoillet (1999), 1999 CanLII 3740 (ON CA), 121 O.A.C. 391 (C.A.). In that case, the Court was faced with a situation where an accused was left naked in a cold cell for a period of some hours, was given poorly fitting clothes and was deprived of sleep. He was then interrogated by the police starting at approximately 3:00 a.m. Information from this statement was then used to convict the accused. The Court of Appeal overturned the conviction, finding inter alia that the statement had been made in oppressive circumstances.

15Oppressive circumstances more generally are found where the conduct of the authorities creates an environment in which the accused’s free will is effectively overborne by the interrogator. It requires a contextual analysis.

16In this case, counsel for the accused points to two elements in the interview that he alleges suggest oppressive circumstances. First, there is the fact that the accused stated he was confused. Second, there is the fact that this was the accused’s first encounter with the law.

17The accused did not say he was confused because he did not understand the questions he was being asked. Instead, when I review the sections of the video, the accused’s statements that he is confused actually show that he is conflicted between his desire to talk to Officer Barnhart and the advice that he received from duty counsel to remain silent. This is not confusion in the sense that the accused does not understand the questions he is being asked, and it does not create an oppressive environment. The accused always has a choice to answer (or not answer) the questions he is being asked and, in some cases, he does not answer questions that are put to him.

18I acknowledge that this is the accused’s first encounter with the law. However, many people are charged for the first time, and have an interview like this one for the first time as well. The accused should not be entitled to more stringent rules merely because it is his first interaction with the law. The question is not whether it was his first time being interviewed by the police. The question is whether his statement was voluntary, within the meaning of the law.

19When I review these elements, both on their own and in the larger context of the interview, l am not left with a reasonable doubt that the statement was voluntary. It is clear to me that there were no oppressive circumstances in this case.

An Operating Mind

20The test for an operating mind requires the Court to determine whether the accused understands that he is communicating with someone in authority, and that he understands the consequences of making the communication.

21At the outset of the interview, Officer Barnhart advised the accused that she was a police officer. She provided her identification to the accused. She also cautioned him about his right to silence, and about the fact that this statement could be used in evidence.

22The accused’s counsel says that this is not enough. He argues that the accused needed to be told, every time that he said he was confused, about his right to counsel and his right to remain silent. Counsel also seemed to suggest that the accused had to be given access to counsel every time he expressed some confusion. I am not sure that counsel’s argument is directly related to whether the accused had an operating mind, but it is relevant to the question of voluntariness. Accused’s counsel is, in essence, arguing that the statement was not voluntary because the accused was “confused”.

23I disagree. It is clear to me that the accused was well aware of who was interviewing him. He also knew his rights. This is all that is required to establish an operating mind. An inquiry into whether the accused has made a good or wise choice or one that is in his interests is not required under the operating mind test. All that is required is sufficient cognitive ability to understand what the accused is saying, and that it is being said to a person in authority (on these points, see R. v. Whitten, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914 at paragraph 45). I have no doubt that, in this case, the accused retained an operating mind throughout his statement.

24Finally, it is worth noting that, as I discuss elsewhere, the accused’s confusion arose from the fact that he was conflicted about whether he should answer all of Officer Barnhart’s questions. He continued to have an operating mind throughout the interview.

Police Trickery

25In cross-examination, the accused’s counsel pointed to two examples of what he alleges were police trickery, as follows:

(a) Officer Barnhart told the accused that she had interviewed three people prior to speaking with the accused, when she had only interviewed two people. On the witness stand, she conceded that this was a lie.

(b) Officer Barnhart told the accused that, if she saw a man masturbating on a bed, she would look. Further, she told the accused that, if the man asked for her help, that she would probably go and help him. On the witness stand, Officer Barnhart testified that this was not reflective of her real views, and that this was a lie as well.

26The accused’s counsel suggests that both of these amount to “police trickery”, and render the statement involuntary. I disagree.

27In Oickle, supra, at paragraph 67, the Court observed that the investigation of crime is not governed by the Marquess of Queensbury rules, and that the authorities can resort to tricks or other forms of deceit. The Court went on to say that things such as a police officer disguising herself as a lawyer or a chaplain would amount to trickery.

28In other words, some untruths will be perfectly acceptable, and will not shock the community. Telling a witness that an officer has interviewed three people (instead of two) is certainly an acceptable untruth. Similarly, telling a witness that the officer might have done something that she would not have done is also an acceptable untruth, and does not shock the community. It is simply an interrogation technique designed to make the witness more comfortable with the interviewer.

29In the circumstances, there is no “police trickery” in this case, and the voluntariness of the statement is not affected.

30For the foregoing reasons, I find beyond a reasonable doubt that the accused’s statement was voluntary.

The Charter Issues

31The facts underlying my consideration of the Charter issues are broadly the same as set out above. The analysis I must undertake has different considerations, and a different burden. In this case, the burden is on the accused on a balance of probabilities. (R. v. Collins (1987), 1987 CanLII 84 (SCC), 38 D.L.R. (4^th) 508 at paragraph 21).

32The accused has raised two separate sections of the Charter, his section 7 right to silence and his section 10(d) right to counsel. I will consider each section separately.

Section 7

33The key argument that the accused is advancing is that his right to silence was not respected, because the police officer continued to question him after he said that he was confused because duty counsel told him not to answer questions. He made this observation approximately a dozen times during the course of the interview, which lasted more than an hour.

34Counsel for the accused stated that, for this right to be exercised in real terms, the police officer was constantly required to remind the accused of his right to remain silent. As a result of her failure to continually provide this caution, counsel alleges that Officer Barnhart violated the accused’s section 7 rights. I do not accept this submission.

35My analysis starts with the Supreme Court’s decision in R. v. Singh (2007), 2007 SCC 48, 285 D.L.R. (4^th) 583. In that case, Charron J. stated, at paragraph 45:

More importantly, Mr. Singh’s proposition ignores the state interest in the effective investigation of crime. The Court in Hebert stressed the importance of achieving a proper balance between the individual’s right to choose whether to speak to the authorities and society’s interest in uncovering the truth in crime investigations. As I stated earlier, the suspect may be the most fruitful source of information. While the fact of detention unquestionably triggers the need for additional checks on police interrogation techniques because of the greater vulnerability of the detainee, the moment of detention does nothing to reduce the suspect’s value as an importance source of information. Provided that the detainee’s rights are adequately protected, including the freedom to choose whether to speak or not, it is in society’s interest that the police attempt to tap this valuable source.

36Charron J. goes on to produce relevant excerpts from R. v Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151 where the Court observed that police persuasion, short of denying the suspect of the right to choose or depriving him of an operating mind, does not breach the right to silence.

37It is important to remember the facts in Singh. In that case, Mr. Singh asserted his right to silence on eighteen different occasions. After confirming that he did not have to say anything, the police continued with the interview.

38In this case, on reviewing the transcript, the accused never actually says that he wishes to remain silent, not answer questions or terminate the interview. All he says is that he is “confused”, which I have found to be because he was torn between answering the questions and remaining silent. As noted above, the choice as to whether or not to answer questions remained with the accused throughout the course of the interview and he continued to have an operating mind.

39Counsel for the accused directed me to the Supreme Court’s decision in R. v. Liew, 1999 CanLII 658 (SCC), [1999] 3 S.C.R. 227 for the proposition that the right to silence must be interpreted in a manner that gives a person a free and meaningful choice about whether to speak or remain silent. Although counsel did not provide me with a copy of that case, I have reviewed it. It does not apply to this case because, as I have said above, the choice to answer Officer Barnhart’s questions remained with the accused during the course of the interview.

40In terms of Officer Barnhart’s conduct, the passage from Singh, supra, set out above illustrates that she is engaged in what I would refer to as “police persuasion”. She is simply trying to persuade the accused to answer her questions, which he does not always do. This is further evidence that the accused’s right to silence was not violated. Accordingly, the accused’s motion on this point is dismissed.

Section 10(b)

41With respect to section 10 (b), counsel for the accused argues that it was violated in two ways. First, he argues that the police disparaged counsel and the advice that counsel gave to the accused. The alleged disparagement occurred when the accused told Officer Barnhart that the lawyer had told him not to talk. Officer Barnhart’s response was to say “well that’s what the lawyer is gonna tell you…” Second, he argues that, for the right to counsel to be exercised, the accused had to be reminded of his right to counsel every time he expressed confusion during the course of the interview.

42On the first issue, I do not view Officer Barnhart’s comments as disparaging counsel. All she does during the course of the interview is observe, correctly, that defence counsel will generally advise an accused that they should remain silent. Officer Barnhart was simply making it clear that she and defence counsel had different roles, and the accused ultimately was the one who could choose to follow the advice or not.

43I am supported in this view by the decision in R. v. Mujku, 2011 ONCA 64. In that decision, the Court found (at paragraph 45) that a comment similar to the one made by Officer Barnhart was simply making the point that it was up to the accused to decide whether to talk or not. The comments made by Officer Barnhart should be contrasted with the comments made by the police in R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206, where the police made negative comments about counsel’s loyalty, availability, commitment and legal fees. These types of comments are completely different from what was said in this case.

44I do not find that Officer Barnhart denigrated counsel, and the accused’s section 10(b) argument fails on this ground.

45The second issue is whether the accused’s right to counsel was violated because he was not regularly reminded of it during the course of the interview. I can deal very briefly with this issue, as the argument has no merit for three reasons. First, the accused was told that he had the right to counsel, and he exercised that right. At no point in the subsequent interview did the accused ask (or even suggest) that he needed to consult with duty counsel again. Second, the accused did not demonstrate any confusion about his right to counsel, or about the advice counsel had given him. He was just conflicted about what to do with that advice. Finally, as noted in a number of the cases cited to me, there is nothing to prohibit the police from questioning the accused in the absence of counsel. I see nothing in the facts of this case that would suggest that the accused was denied his right to counsel at any time.

46Accordingly, the accused was not denied the right to counsel, and the motion fails on this basis as well.

Remedy and Conclusions

47I find that the Crown’s motion should be allowed, and the motions of the accused dismissed. Accordingly, I find that the accused’s statement can be used for the purposes of cross-examination should he testify, but is otherwise not in evidence.

48The only question left to consider is the section 24(2) arguments. In the event that I am wrong in my conclusions about the accused’s arguments under section 7 or 10 (b) of the Charter, then I should consider section 24(2). If I am wrong about voluntariness, then the statement is inadmissible, and section 24(2) does not arise.

49The problem with my consideration of section 24(2) is that, if I am wrong in my views on the other issues, then I will have viewed the statement in a completely different way than the reviewing Court. In that light, it is difficult to see how my section 24(2) analysis will be of any assistance.

50However, I will briefly set out my analysis, which starts with a consideration of the factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. This decision requires me to consider the seriousness of the Charter infringing conduct, the impact of the breach on the interests of the accused, and society’s interests in the adjudication of the case on its merits.

51In this case, if there was a breach of the Charter, it would have been a very minimal breach. In assessing the seriousness of any infringing conduct, it is important to remember the context of this interview. The accused was given several days notice of the interview, explained what the circumstances of the interview would be, and was given the opportunity to consult counsel prior to the interview starting.

52Finally, in assessing the interests of society in the adjudication of the case on its merits, given that any breach is technical in nature, it is difficult to see in this case how society would be negatively affected by admitting this statement.

53Accordingly, even if there was a breach of the Charter, I would have admitted this statement.

54The trial will continue with the defence calling whatever evidence it wishes to call on September 28^th, 2015.

LeMay J.