COURT FILE NO.: 15-10000564-0000

DATE: 2015/09/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

EVERTON BIDDERSINGH

Respondent/Applicant

Mary Humphrey and Anna R. Tenhouse, for the Crown Applicant/Respondent

Jennifer Penman and Genevieve McInnes, for the Respondent/Applicant

HEARD: September 16, 17, 18, 21,22, and 24, 2015

Voluntariness and Sections 7 and 10 Charter Application Rulings

A.J. O’Marra J.

[1] Everton Biddersingh is before the Court charged with the first degree murder, aggravated assault and indignity to a dead body in relation to his daughter, Melonie Biddersingh. In addition he is charged with obstruct justice.

[2] The Crown Applicant seeks to have admitted utterances and statements to members of the Toronto Police Service during their investigation into the death of his daughter Melonie Biddersingh. The Applicant seeks to prove their voluntariness to have available for the purpose of cross-examination should Mr. Biddersingh choose to testify.

[3] The utterances and statements the Crown Applicant seeks to have admitted are as follows:

(a) Utterances recorded electronically made to transport officers, Detective Robert North and Detective Constable Jonathan Welsh on March 5, 2012 during his transportation from Welland, Ontario after his arrest to 52 Division in Toronto.

(b) Statements made to Detective Sgt. Steven Ryan, electronically recorded and transcribed at 52 Division in Toronto on March 5, 2012.

[4] The Respondent accused’s position is that the utterances and statements made were involuntary and by cross-application unconstitutional having been obtained in breach of his rights under s. 7 right to remain silent and s. 10 a) right to be informed promptly of the reasons for his arrest or detention and s. 10 b) right to counsel under the Charter of Rights and Freedoms.

[5] In the alternative, the respondent accused argues that even if his utterances and statements are deemed voluntary and constitutional they should be excluded pursuant to the residual discretion of the Court to exclude evidence where the prejudicial effect of its introduction at trial outweighs its probative value.

[6] On the blended voluntariness and Charter voir dire I had available the Crown’s Application Record consisting of the notes of the arresting officers, Det. Sgts. David Masotti and Jay Nesbit, Niagara Regional Police Service, transporting officers, Det. Robert North and Det. Cst. Jonathan Welsh and the interviewing officer, Det. Sgt. Steven Ryan, Toronto Police Service officers, the audio recordings of the arrest and transport and video tape recording of the interview at 52 Division, the corresponding transcripts and the vive voce evidence of the officers.

Overview

[7] On September 1, 1994, the body of a 17 year old girl was found in a suitcase which had been set on fire in an industrial area of Vaughan, Ontario. The deceased was found to have been malnourished, weighing approximately 50 lbs. and having 21 ante-mortem bone fractures. Initially the cause of death was classified as undetermined, then later found to have been drowning as either the cause of death or major contributing factor, or near drowning due to the presence of diatoms in fluid in her maxillary sinus and femoral bone marrow. The identity of the deceased remained unknown until information was received in late 2011, which led police to a DNA comparison with her biological mother in Jamaica.

[8] Melonie had come to Canada when she was 14 years old with her younger brother, Dwayne Biddersingh and stepbrother Cleon Biddersingh to live with their father Everton Biddersingh and stepmother, Elaine Biddersingh. Melonie’s death or that she had gone missing had never been reported by the Biddersinghs.

[9] In December 2011 Elaine Biddersingh told her church pastor, Eduardo Cruz about the circumstances of Melonie’s death, her body had been put into a suitcase and Everton had been involved in the disposal of her body. He in turn told the police, which led to Melonie’s unsolved death in York Region. At the time of Melonie’s death in 1994 the Biddersinghs lived with their children in Toronto. The Cold Case Unit of the Toronto Police Service undertook the investigation. The information provided by Elaine led to the confirmation of the identity of the deceased through a DNA comparison with her mother, Opal Auston living in Jamaica.

[10] On March 2, 2012 warrants for arrest of Elaine and Everton Biddersingh were issued, specifying six offences alleged to have been committed with respect to the death of Melonie:

1. Failure to provide the necessaries of life,

2. Failure to provide the necessaries of life as a person in charge,

3. Criminal negligence causing bodily harm,

4. Aggravated assault,

5. Forcible confinement, and

6. Indignity to a dead human body.

[11] At the time Everton and Elaine were living in Welland, Ontario. Arrangements were made to have Niagara Regional police offices attend their residence to arrest them and members of the Toronto Police Service would transport them to Toronto to be interviewed.

[12] A warrant was also issued for Cleon, Melonie’s older step brother. His arrest was to occur simultaneously in Calgary Alberta where he was then residing.

[13] Prior to the arrests on Friday March 2, 2011 Detective Sgt. Steven Ryan of the Toronto Police Service Cold Case Unit briefed Detectives Joyce Schertzer and Det. Cst. Adrian Duran about the investigation. They were to assist with the arrests in Niagara. They transported Elaine Biddersingh to Toronto.

[14] Det. Sgt. Steve Ryan briefed Det. Robert North, Homicide that he would be assisting in the cold case investigation on Monday, March 5, 2012 by transporting either Elaine or Everton Biddersingh from Welland back to Toronto. In the briefing he told Det. North about the discovery of Melonie’s remains in a suitcase, which had been set on fire in York Region in 1994. In November/December 2011, Elaine Biddersingh had spoken with investigators and told them that in 1991 she and her husband Everton had lived on Close Avenue in Toronto with three of Everton’s children, Melonie, 13, Dwayne, approximately 14 and half-brother Cleon, 18 years old who had arrived in Canada from Jamaica to live with them due to hard economic times in Jamaica. From the beginning Everton had rationed their food and refused to let the children attend school.

[15] He told Det. North that in 1992 Everton’s son Dwayne died from falling from their apartment balcony. In 1992 Dwayne received a part-time job delivering papers. One day after work Dwayne did not come home for 24 hours. He had stated to the person he was staying with that when Everton, Cleon and Elaine came looking for him that they would kill him. He did not want to go with them. During the ride home they spoke about how they were going to beat him. When they arrived home, the furniture in the living room was moved to create a ring so that they could beat Dwayne. Elaine was told to go into the bedroom and shut the door. Cleon and Everton came into the room and talked to her about how they would beat Dwayne. At that time they heard a scream from the apartment and Dwayne had “jumped 22 stories to his death”.

[16] In 1994 Melonie was forced to live in a closet in the residence. Melonie weighed 50 lbs. Everton came and told Elaine that Melonie had “stiffened up”. Melonie was dead. Cleon and Everton then packed up the body in a suitcase and told Elaine that she was going to go for a ride with them. They all drove to York Region where the body was dumped. Shortly after Cleon moved from Toronto to Calgary and had no contact with Everton since that time. Det. North was further advised that Dr. Michael Pollanen had advised that the cause of death was “drowning” in lake water. Further, Melonie had numerous broken bones including broken pelvis and broken ribs.

[17] Det. Constable Welsh was designated to assist Det. North in transporting one of the accused back to Toronto.

[18] At the time the warrants were issued based on the information as to the circumstances alleged to have occurred in the Biddersingh home, the disposal of Melonie’s body and the non-reporting of her death or that she was missing there was an ongoing investigation and both Elaine and Everton were suspects in the possible murder of Melonie. Det. Sgt. Ryan testified that Everton and Elaine were obvious suspects. Further, he intentionally did not tell anyone who would be assisting in the arrests or transport of Elaine and Everton they were suspects in the potential murder of Melonie because he did not want to “muddy the waters”.

The Arrest

[19] At approximately 7:20 a.m. March 5, 2012, officers of the Niagara Regional Police Service were briefed by detectives from the Toronto Homicide Squad at District 3 in Welland as to the upcoming arrests of Elaine and Everton Biddersingh. Niagara Regional Police officers were tasked with attending to the Biddersingh residence at 404 Ontario Street in Welland to affect the arrests. At 8:50 a.m. Detective Sgt. David Masotti of the Homicide Unit and Detective Sgt. Jason Nesbit, Major Crimes arrived at the apartment building. Detective Masotti activated a recording device to electronically record all their dealings with the Biddersinghs. They knocked at the door, which was answered by Elaine Biddersingh. They identified themselves as police officers who were there to place Elaine and Everton under arrest.

[20] Everton was advised at 8:54 a.m. by Det. Sgt. Masotti he was under arrest for a “death investigation in regards to Melonie”. Mr. Biddersingh was wearing shorts and a T-shirt at the time and he was allowed to dress in warmer clothing before being removed from the home. His glasses, Bible and hat were obtained at his request. He was afforded the opportunity to say goodbye to his children before being escorted out of the family home. Prior to leaving the building, he complained that the handcuffs were too tight. They were adjusted to make them more comfortable.

[21] Det. Sgt. Masotti at 9:12 a.m. showed Mr. Biddersingh the warrants for his arrest and search of his home and explained the charges he faced. He told him that he had chosen to delay reading the charges to him inside the home to spare him and his family any upset or embarrassment it might cause. As Det. Sgt. Masotti explained each count, on asking Mr. Biddersingh as to whether he understood, his responses were in effect “I’m listening” together with nodding his head in the affirmative.

[22] At 9:15 a.m. he was read his rights to counsel and when asked if he understood he responded “mm hmm” and “I have my rights”. When he was told he had the right to a lawyer he responded “I don’t know a lawyer offhand right now”. He was told duty counsel, “who are defence lawyers”, would be available to talk to him in private “and they will tell you what to say or what not to say … they are on your side”. He was asked if he wanted a “duty counsel lawyer contacted who could give him some advice. He replied: “of course”. He was told he would be put in contact with a duty counsel lawyer on their arrival at the Welland Police Station.

[23] Det. Sgt. Masotti re-read the six charges and the primary cautioned: “Do you wish to say anything in answer to the charges. You’re not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence”. When asked as to whether he understood, Mr. Biddersingh nodded in the affirmative and said “I heard what you said officer…if I say anything they’ll hold it against me”.

[24] He was given the secondary caution at 9:18 a.m. that if he’s spoken to any police office or person in authority in connection with the case it is not to influence him in making any statement. When asked if he understood, he stated “I’m not sure about that”. The secondary caution was re-read after which Det. Sgt. Masotti cited examples of promises, threats and inducements. Again Everton nodded his head in the affirmative and said “yeah I hear…I hear what you said you know like. Like I hear you”. Further he stated “if I talk to any police officer, I don’t remember talking to any police officer”. Det. Sgt. Masotti reiterated that it was to be Everton’s choice as to whether he would like to speak to the police.

[25] They left 404 Ontario Street at 9:21 a.m. and at 9:26 a.m. arrived at the security garage 3 District station of the Niagara Regional Police Service, 5 Lincoln Street, Welland.

[26] Mr. Biddersingh was taken to the booking area at 9:28 a.m. He declared he had no injuries however he said he had heart issues and was scheduled to see a specialist. His cuffs were removed and he was placed into a cell.

[27] Duty counsel was contacted on behalf of Mr. Biddersingh. Peter Gakiri called back at 9:58 a.m. and spoke with Det. Sgt. Masotti who told him about the six charges for which Mr. Biddersingh had been arrested. Det. Sgt. Masotti confirmed that he related nothing as to whether Mr. Biddersingh was a suspect in the murder of Melonie or mentioned anything with respect to her brother, Dwayne. He indicated that he had received no such instructions to provide such information.

[28] Mr. Biddersingh was on the phone with duty counsel at 10:01 a.m. and finished by 10:09 a.m.

[29] Once he had been escorted back to his cell from the secure consulting room he expressed some concern to Det. Sgt. Masotti about his two sons who had mental health issues that had been left in the home after his arrest. Mr. Biddersingh was advised that members of the NRPS COAST unit comprised of police officers and mental health professionals to assist families with mental health issues had been contacted to attend to the residence.

[30] Both Det. Sgt. Masotti and Nesbit confirmed that at no time was the respondent/accused advised that the police had been considering charging him with the murder of Melonie Biddersingh, pending further investigation or that the police were investigating him with respect to the death of Melonie’s brother, Dwayne.

Transportation of Everton Biddersingh from Welland to 52 Division, Toronto

[31] Det. Constable Welsh was informed by Det. North that the respondent would be arrested on the charges as outlined in the warrant and received information that DNA evidence had recently linked Melonie to the female body that had been found in the suitcase in the mid-1990s. He was also aware that another son in the family had died in suspicious circumstances in 1992 however, at no point was he advised that there was a parallel investigation being conducted by the Toronto Police Service into Dwayne’s death.

[32] Det. Constable Welsh and Det. North arrived at 3 District in Welland at 9:40 a.m. March 5, 2012. They were detailed to escort Everton back to Toronto. They received information at 10:38 a.m. as to the circumstances of his arrest. It was confirmed by Det. Sgt. Masotti that Everton had been arrested, read his rights to counsel and provided with both primary and secondary cautions. He indicated that Mr. Biddersingh appeared to understand his rights to counsel, caution and the charges because he was responsive, he repeatedly stated “I’m listening”, “I hear you”, when asked to whether he understood what he was being told, as well he continuously nodded his head in an affirmative fashion. Det. Sgt. Masotti further advised the officers that Mr. Biddersingh had spoken with duty counsel, Peter Gakiri and had an opportunity to speak with him in private that morning.

[33] On entering the cell area to meet Mr. Biddersingh, Det. Constable Welsh activated his electronic recorder at 11:00 a.m. The officers introduced themselves to Mr. Biddersingh and enquired as to how he was. He responded that he was okay. He was told that they would transport him to Toronto. It was confirmed that he had spoken with duty counsel and that he understood his rights. When he was asked as to whether he was under arrest he responded “uhmm, not really”. He said he didn’t understand, but it was clarified that what he meant was that he did not agree with the charges. When asked as to whether he had been cautioned, he asked to have the cautions repeated, which Det. Robert North said he would do again with respect to the charges and the cautions when they were in the car. Mr. Biddersingh indicated that he had concerns about his children. Det. North had received information that officers had attended to the residence and found that everything was okay and that they would re-attend in the afternoon.

[34] Again in the cell area, prior to departing, Det. North repeated that he understood that Mr. Biddersingh had been “served the rights under the Charter of Rights and Freedoms,” to which Welsh added “about free legal advice.” However, when there was hesitation on the part of Mr. Biddersingh he repeated the charges he was being arrested for and then again provided him with the information that he has a right to telephone any lawyer and a right to free legal advice from a legal aid lawyer and that they would contact Legal Aid duty counsel lawyer for free legal advice. When asked, “do you wish to call a lawyer”, his response was “yeah, I’m going to need a ….” Det. North indicated that he had called a lawyer already once to which Mr. Biddersingh indicated “no, I don’t call”. Det. North indicated that he had been informed he had spoken to duty counsel and Biddersingh said “yeah”. Even though Mr. Biddersingh said he had spoken with duty counsel he then said to Det. North “I didn’t speak to a lawyer”. Det. North advised him that duty counsel are lawyers, to which he indicated “okay”. He was told that if he wanted to speak to a lawyer again he could do so when they were back in Toronto.

[35] Det. North reiterated the primary and secondary cautions and when asked whether he understood Biddersingh replied “yes”.

[36] The handcuffs were loosened in order to make it more comfortable for Mr. Biddersingh during the transportation to Toronto. In addition, having explained that he had sciatica issues the front passenger seat was moved forward in order to provide him with as much leg room as possible. He was placed in the rear passenger seat with Det. Constable Welsh beside him and Det. North drove the vehicle. Mr. Biddersingh was advised that his transportation to Toronto would be electronically recorded.

[37] The officers departed with Mr. Biddersingh at 11:22 a.m. and arrived outside of 52 Division at approximately 12:52 p.m. He was in the Division and before the booking officers at 1:12 p.m.

[38] During the transportation from Welland to Toronto Mr. Biddersingh and the officers, North and Welsh spoke throughout about his family, health and his home. Det. North asked Mr. Biddersingh questions about his children, specifically Melonie, Dwayne and Cleon. Det. North questioned him in the following areas:

1. Whether Dwayne and Melonie were born in Jamaica;

2. The number of children the respondent has and their names;

3. The age of the respondent when he had his children and their respective ages;

4. The age difference between Cleon, Melonie and Dwayne;

5. How often he spoke to Cleon and why Cleon moved away, and why they did not talk anymore;

6. Who Dwayne and Melonie’s mother was and where she resided;

7. Suan, another daughter, her age relative to Melonie and Dwayne;

8. Telling the respondent that it must have been tough to raise all the kids and confirmed that Cleon, Dwayne and Melonie lived with him in Toronto;

9. What was the relationship between Cleon, Melonie and Dwayne;

10. Enquired into the circumstances of Dwayne’s death at length and in some detail commencing with the question: “Now what, what, what happened to um Dwayne, die of an accident sir”;

11. Whether Melonie was sick;

12. How old Dwayne and Melonie were when they died;

13. After Mr. Biddersingh said they were carrying an innocent person, Det. North said “so you’re saying you have nothing to do with this”… “is that what you’re saying”? Mr. Biddersingh said that “I’m going to keep quiet for now,” then Det. North states “you didn’t do it, then who did it?”

[39] Det. North testified that he was not questioning Mr. Biddersingh about the charges he was facing relating to the death of Melonie and/or Dwayne but rather simply trying to make conversation as a father with another father. It was, according to him, no more than “idle chit chat”.

[40] Det. Welsh, who knew nothing with respect to the investigation into the death of Melonie or Dwayne said from his perspective Det. North appeared to have been attempting to build a rapport with Mr. Biddersingh. Although, he acknowledged after Biddersingh said he was an innocent man Det. North’s comment, “you didn’t do it, then who did it?” appeared to be a direct question that went to who caused the death of Melonie. Further, he agreed in cross-examination that when Det. North asked questions about Melonie and Dwayne’s deaths that it went past what could be considered “rapport building”.

[41] Mr. Biddersingh was not advised at any time during his interaction with Detectives North and Welsh that the police were considering him a suspect in the possible murder of Melonie and they were conducting a parallel investigation in relation to Dwayne’s death.

52 Division: “You may be charged with murder”

[42] It is not until Mr. Biddersingh is in 52 Division that he is told he could be charged with murder in Melonie’s death.

[43] After Mr. Biddersingh was paraded before the booking officer, he was taken to a private area where a level 3 search was conducted. He was then lodged in an interview room.

[44] At 1:47 p.m. Det. Sgt. Steve Ryan entered the room and introduced himself. The initial meeting was audio recorded. Det. Sgt. Ryan reiterated the charges which Mr. Biddersingh was arrested for earlier that day, then added “all of those charges, plus…plus we’re continuing this investigation…a murder investigation so you may be charged with murder as well”. He repeated the charges and stated again, “plus you may be charged with murder as well depending on how this investigation unfolds”.

[45] He then repeated the primary and secondary cautions. On stating the secondary caution, Mr. Biddersingh asked him to explain. Det. Sgt. Ryan said “if you’ve talked to other police officers before…cause I’m gonna speak with you a bit later on. I want you talking to me … is a decision that you’ve made and one you made on your own. So if you’ve talked to any police officers before me I don’t want what they’ve said to you to influence whether you talk to me or not”. Mr. Biddersingh indicated that he understood.

[46] Det. Sgt. Ryan then repeated his right to counsel and when asked if he wanted to speak with a lawyer Mr. Biddersingh stated “oh yeah”. The officer then indicated that he would call duty counsel and he left the interview room. Det. Sgt. Ryan then left it to DC Welsh to call duty counsel for him. He said nothing to Welsh about having advised Biddersingh that he could be charged with murder.

[47] Det. Constable Welsh testified that at 1:55 p.m. he made a call to duty counsel at the request of Det. Sgt. Ryan. At 2:52 p.m. he received a call from Julie Peaker, duty counsel, at which time he reiterated the six charges for which Mr. Biddersingh had been arrested. Mr. Biddersingh was placed in a private room at 2:52 p.m. and finished the call with duty counsel at 3:02 p.m.

Det. Sgt. Ryan’s Interview with Everton Biddersingh March 5, 2012 at 4:29 p.m.

[48] Det. Sgt. Ryan entered the interview room at 4:29 pm and told Mr. Biddersingh that the interview was being video recorded. He inquired as to how Mr. Biddersingh felt. He told Ryan that he was not feeling “truly great” and went on to tell him about his heart issues and “sarcadosis”(ph).

[49] Asked if he had spoken to a lawyer, Mr. Biddersingh stated “not yet”. Det. Sgt. Ryan understood that he had spoken with duty counsel and Mr. Biddersingh indicated that he needed to see a lawyer. Det. Sgt. Ryan stated “I understand you’ve talked to a lawyer on the telephone”. Mr. Biddersingh’s response was “no, is that the lady lawyer”? Det. Sgt. Ryan confirmed with Welsh outside the interview room that Mr. Biddersingh had spoken with duty counsel. He explained to Mr. Biddersingh that duty counsel is a lawyer to which he responded “I don’t know much about that”.

[50] D/S Ryan then reiterated the six charges that Mr. Biddersingh was facing and stated “but before I forget, we’re also investigating this is a possible homicide. So you could be charged with murder as well depending on what we learn”. Biddersingh asked “so what does that mean?” Det. Sgt. Ryan’s responded: “so do you wish to say anything in answer to those charges including the possibility that you could be facing a murder charge depending on what we learn from our investigation. You are not obliged to say anything but whatever you say may be given in evidence. Do you understand that?” Biddersingh’s response “I heard that, yeah”.

[51] The secondary caution was repeated. When asked if he understood Mr. Biddersingh nodded his head and stated “I think I understand”. The officer then repeated, “I want you to talk to me based on your own decision to talk to me right now. If anybody said anything else you, another police officer said anything to you, I don’t want that influencing you to decide to talk to me. I want you to talk to me if you want to talk to me.” Again when asked whether he understood what had been read to him he stated “yeah I hear”. He further confirmed that he had spoken to duty counsel in Niagara and talked to one in Toronto.

[52] Mr. Biddersingh said nothing inculpatory during the 3.5 hour interview that concluded at 8:05 p.m.. Specifically with respect to Melonie’s death he stated “I didn’t murder anybody”. Further, he stated “I wasn’t in charge” and “I didn’t hurt nobody, I couldn’t hurt my daughter”. Although Mr. Biddersingh provides some responses to questions asked by D/S Ryan about his family he remained consistent throughout the interview stating that he did not want to answer the officer’s questions without talking to a lawyer. Throughout the interview when the questions turned to Melonie, he stated he said repeatedly he wanted to speak to a lawyer, or a counsellor. He refers to a lawyer or counsellor more than 50 times.

[53] Toward the end of the interview at 7:28 p.m. just after Biddersingh said that sometimes Melonie and Dwayne had fights, Det. Sgt. Ryan started to ask Mr. Biddersingh about the circumstances of Dwayne’s death; “Isn’t that why you were upset with Dwayne the day he fell off the balcony?” He suggested that Dwayne had been afraid of him. Det. Sgt. Ryan at 7:36 pm said, “you know and before we get into that let me stop you for a second…that is also an investigation that we’re looking into. So there is a possibility you could be charged with Dwayne’s death as a murder”.

[54] D/S Ryan testified that there was an ongoing investigation into the death of Dwayne Biddersingh that had earlier been ruled a suicide. However, it was not a murder investigation, but rather one he was conducting as a matter of “due diligence” after being advised by two senior Crown Attorneys that there was insufficient evidence of a homicide. The reason he stopped Mr. Biddersingh and cautioned him about the possibility of him being charged with murder in the death of Dwayne was to prevent him from saying anything else.

[55] After cautioning him he did not reiterate his right to counsel. D/S Ryan continued to question him. He asked Biddersingh if he stuck around after Dwayne fell over the balcony. In response Biddersingh said he wanted to talk to a lawyer first. The interview continued with questions being asked about Melonie’s death. He was not given access to counsel as requested after he was told it was possible that he could be charged with Dwayne’s death.

Voluntariness

[56] All statements made to persons in authority must be proven to have been voluntary to be admitted into evidence. Iaccobucci J. in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 at para 68 observed that under the “confessions rule” if a statement is made in circumstances that raise a reasonable doubt as to the voluntariness it will not be admitted. Factors which should be considered in the inquiry are:

i) Were any threats promises or inducements made or offered;

ii) Was there an atmosphere of oppression;

iii) Did the accused have an operating mind;

iv) Did the police use improper trickery to obtain the statement?

[57] Although the primarily concern in considering the factors noted is with ensuring the reliability of the statements, the confessions rule “also extends to protect a broader conception of voluntariness that focuses on the protection of the accused’s rights and fairness in the criminal process. (Oickle supra at para 69)

[58] Here, the Crown argues that there is no evidence of the accused having been offered any promises, inducements, threats of any kind made or evidence of an oppressive atmosphere. Further, all of the responses made by Mr. Biddersingh were responsive and indicative of an operating mind.

[59] However, counsel for the Respondent/Accused argues, as noted in R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48 at para 37 the right to silence under s. 7 is subsumed under the voluntariness rule and if the accused’s right to silence has been breached, voluntariness has not been proved beyond a reasonable doubt. On the matter of voluntariness and the s. 7 Charter right to silence the Supreme Court stated:

35 … [T]his Court in Oickle made express reference to the analysis in Hebert and embraced this modern expansive view of the confessions rule which, significantly for our purposes, clearly includes the right of the detained person to make a meaningful choice whether or not to speak to state authorities: see paras. 24-26. Iacobucci J. then reviewed the various components of the contemporary confessions rule, stressing, of course, that "[t]he application of the rule will by necessity be contextual" and that "all the relevant factors" must be considered (para. 47). He went on to describe the more common circumstances that vitiate the voluntariness of a confessions using the well-known headings: (a) threats or promises, (b) oppression, and (c) operating mind. In keeping with the broader modern approach to the confessions rule, he also added a final consideration in determining whether a confession is voluntary or not - the police use of trickery to obtain a confession that would "shock the community" (para. 66). He explained that: "Unlike the previous three headings, this doctrine is a distinct inquiry. While it is still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system" (para. 65). Finally, it is noteworthy that, in summarizing the parameters of the confessions rule, Iacobucci J. made express reference to the right to silence as a relevant facet of the rule:

The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.'s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness "that focuses on the protection of the accused's rights and fairness in the criminal process": J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible. [Emphasis added; para. 69.]

36 On the question of voluntariness, as under any distinct s. 7 review based on an alleged breach of the right to silence, the focus is on the conduct of the police and its effect on the suspect's ability to exercise his or her free will. The test is an objective one. However, the individual characteristics of the accused are obviously relevant considerations in applying this objective test.

37 Therefore, voluntariness, as it is understood today, requires that the court scrutinize whether the accused was denied his or her right to silence. The right to silence is defined in accordance with constitutional principles. A finding of voluntariness will therefore be determinative of the s. 7 issue. In other words, if the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect of the same statement. The converse holds true as well. If the circumstances are such that an accused is able to show on a balance of probabilities a breach of his or her right to silence, the Crown will not be in a position to meet the voluntariness test.

Utterances during transport to 52 Division

[60] At the time Mr. Biddersingh was arrested by D/S Masotti and D/S Nesbit and throughout his transport to 52 Division by Det. North and D/C Welsh he was a suspect in an ongoing murder investigation in the death of Melonie. Although he was cautioned as to the six counts in the warrant at his arrest and before the conversation with Det. North during the drive to Toronto he was not cautioned about being a suspect in a possible murder. There was a significant “informational deficit” such that the accused was not aware as to what was at stake in speaking to the police, or in declining to assist them. (See R. v. Worrall, [2002] O.J. No. 2711 at para 106 and R. v. J.R., [2003] O.J. No. 718 at para. 20).

[61] Moreover, although he was given the cautions with respect to the six charges in the warrant and right to counsel together with the opportunity to exercise that right with respect to those, he was not in a position to receive advice and to choose to speak to the police or not. In R. v. Herbert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151 the seminal case on s. 7 and the Charter the Supreme Court stated:

The scheme under the Charter to protect the accused's pre-trial right to silence may be described as follows. Section 7 confers on the detained person the right to choose whether to speak to the authorities or to remain silent. Section 10(b) requires that he be advised of his right to consult counsel and permitted to do so without delay.

52 The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence. The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces. Read together, ss. 7 and 10(b) confirm the right to silence in s. 7 and shed light on its nature.

53 The guarantee of the right to consult counsel confirms that the essence of the right is the accused's freedom to choose whether to make a statement or not. The state is not obliged to protect the suspect against making a statement; indeed it is open to the state to use legitimate means of persuasion to encourage the suspect to do so. The state is, however, obliged to allow the suspect to make an informed choice about whether or not he will speak to the authorities. To assist in that choice, the suspect is given the right to counsel.

54 This suggests that the drafters of the Charter viewed the ambit of the right to silence embodied in s. 7 as extending beyond the narrow formulation of the confessions rule, comprehending not only the negative right to be free of coercion induced by threats, promises or violence, but a positive right to make a free choice as to whether to remain silent or speak to the authorities

[62] The Crown contends that although Everton was a suspect, because the transporting police officers did not know there was an ongoing murder investigation into Melonie’s death, there was no impact on his right to silence. He engaged voluntarily in what the Crown and Det. North characterize as no more than idle chit chat.

[63] I do not accept Det. North’s characterization of his conversation with Mr. Biddersingh about his family and his direct question “if you did not do it, then who did”, as idle chit chat. Det. North is an experienced homicide investigator who was provided considerable information as the circumstances of finding Melonie’s body, the condition of her body – at 17 year old girl weighing 50 lbs., 21 healing fractures, death by drowning in lake water. It was not idle chit chat to ask about Cleon leaving right after Melonie’s death and whether they talk any more. Further, he asked about Dwayne’s death and the circumstances leading to it. Det. North knew that the opinion as to the cause of death was drowning in lake water. He asked a number of questions about whether Biddersingh took the children to the beach on Lake Ontario at the bottom of Jameson Avenue near where they lived at the time of Melonie’s death. Based on the content of the briefing and the condition of Melonie’s remains murder would be suspected and Mr. Biddersingh an obvious suspect.

[64] Certainly, any information recorded during the transport of Biddersingh would form part of the information gathered in the murder investigation to be used against him. Moreover, it has some prosecutorial value against the interest of Mr. Biddersingh on the murder trial as the Crown seeks to have his utterances admitted. Clearly, the Crown wants to make use of the content of the discussion if necessary in cross-examination.

[65] In R. v. Sinclair, 2010 SCC 25, [2010] 2 S.C.R. 3 at paras. 24 and 26 in discussing the relationship between s. 7 and s. 10 b) of the Charter the Supreme Court stated:

24 The purpose of s. 10 b) is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation. In the context of a custodial interrogation, chief among the rights that must be understood by the detainee is the right under s. 7 of the Charter to choose whether to cooperate with the police or not.

26 The purpose of the right to counsel 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”: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233 at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with the investigation or decline to do so is free and informed. Section 10 b) does not guarantee that the detainee’s decision is wise; nor does it guard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice,

[66] In R. v. Smyth, [2006] O.J. No. 5527 at paras 81 Trafford J. observed that the right to silence pertains to a person who is a “suspect” objectively viewed and failure to advise as to the jeopardy he or she faces may lead to doubting the voluntariness of any statements:

81 Where a police officer is questioning a "suspect," there is an obligation, at common law, to caution him. The failure to advise a "suspect" of the right to silence, the potential jeopardy that he faces and the fact that any of his statements may be used as evidence at trial is a factor against voluntariness. See Boudreau v. R. (1949), 1949 CanLII 26 (SCC), 7 C.R. 427 (S.C.C.). Depending upon the other circumstances of the case, the failure to caution a "suspect" may lead to a reasonable doubt on the issue of voluntariness.

[67] In R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.). Doherty J.A said, at p. 542 after referring to the stringent test for waiver required by the Supreme Court of Canada where the Crown claims a defendant has yielded a constitutional right in an investigation:

The high waiver standard established in these cases is predicated on the need to ensure the fair treatment of individuals who come in contact with the police throughout the criminal process. That process includes the trial and the investigative stage. In fact, it is probably more important to insist on a high waiver standard in the investigative stage where there is no neutral judicial arbiter or structured setting to control the process, and sometimes no counsel to advise the individual of his or her rights.

The exercise of a right to choose presupposes a voluntary informed decision to pick one course of conduct over another. Knowledge of the various options and an appreciation of the potential consequences of the choice made are essential to the making of a valid and effective choice. [Emphasis added.]

[68] As noted by Trafford J. in Smyth at para 95 after citing Mills; a valid "consent," in cases like this one, exists where the individual makes an informed choice to permit the intrusion of an investigation into his/her constitutionally protected sphere.

[69] Even though Mr Biddersingh spoke with duty counsel he was not in a position to seek advice as a suspect in a murder investigation prior to speaking with the transporting officers. He did not have the opportunity to make an informed choice. Mr. Biddersingh was a suspect and he should have been so advised before he was given access to duty counsel in order to understand the jeopardy he faced and to receive advice to make a choice as to whether he would speak to the police or not.

[70] Watt J. (as he was then) observed in R. v. Worrall, [2002] O.J. No. 2711 at para 106 that voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them. No such awareness existed at the time Biddersingh spoke with Det. North. I am not satisfied beyond a reasonable doubt that his utterances recorded during the drive to Toronto with Det. North and D/C Welsh were voluntary, and is therefore inadmissible.

Interview with D/S Ryan

[71] In terms of the interview with Det. Sgt. Ryan it appears that no such information deficit existed. He advised Mr. Biddersingh that he was a possible suspect in a murder investigation three times, in addition to the six charges for which he had been arrested. Twice when he first met him at 1:47 pm, then again before the videotaped interview at 4:29 pm.

[72] In R. v. Sinclair supra the Supreme Court held that once the police have provided the accused with and initial consultation with a duty counsel lawyer, there is no further requirement to allow additional consultations with counsel unless there is :

1. A change in procedure involving the detainee,

2. A change in the detainees jeopardy,

3. Reason to question the detainees understanding of his s. 10 b) rights.

[73] Mr. Biddersingh was made aware of the change in his jeopardy when he was informed by Det. Sgt. Ryan that he could be charged with murder in the death of Melonie. He had the opportunity to speak with duty counsel.

[74] Counsel for the accused argued that although he was told of the possibility of being charged with murder his responses to Det. Sgt. Ryan indicate that he did not understand he had spoken with a lawyer when he spoke with duty counsel and what the possibility of being charged with murder.

[75] Counsel suggested that he did not understand what a duty counsel was or that he was speaking with a lawyer. When Det. Sgt. Ryan said to Biddersingh that he understood he had talked to duty counsel, “a lawyer on the phone” he replied “is that the lady lawyer?” He knew he had spoken to a lawyer. In addition, during the interview he acknowledged to Det. Sgt. Ryan, “I already spoke to a lawyer, yeah”.

[76] Further, throughout the interview he stated variously he did not want to talk and he wanted to talk to a lawyer. He referenced lawyers and counsellors interchangeably, in my view an indication he appreciated that a duty counsel was a lawyer. He had been told that at the outset by Det. Sgt. Masotti in Welland. He had been told that by Det. North prior to the drive to Toronto.

[77] At the time of the second interview Mr. Biddersingh knew he was possibly facing a murder charge with respect to Melonie’s death and he had spoken to a duty counsel lawyer. He was aware of the new risk of self-incrimination. The police had fulfilled both their informational and implementational duty under S. 10 of the Charter of advising him of his right to counsel and opportunity to exercise it informed of the risk. He was in a position to make an informed choice whether to participate in the investigation against him. As observed in R. v. Singh supra at para 33, if a detainee has exercised his s. 10 Charter right to counsel, he will presumably have been informed of his right to silence. `

[78] In my view, Mr. Biddersingh’s question “So what does that mean” to D/S Ryan saying “So you could be charged with murder as well depending on what we learn”, was not an indication of confusion about the possibility. Indeed, asked about what happened to Melonie his response was “I didn’t murder anybody”.

[79] This was not a situation as in R. v. Taylor. [2012]O.J. No. 3580 (SCJ) where the court was satisfied that the accused revealed a profound lack of understanding of the nature and role of duty counsel. I am satisfied no such misunderstanding existed here. Mr. Biddersingh had spoken with duty counsel and was following advice, as he stated, “I prefer to keep silent now”, “I don’t want to talk about these things”, “I prefer not to talk”.

[80] In fulfilling their obligations under s. 10 the police could continue in their investigative role to ask questions of the accused. I am not satisfied that Mr. Biddersingh’s s. 10 b) right to counsel was violated.

[81] However, in the circumstances of this matter there are a number of concerns that affect its admissibility.

[82] The first is with respect the ongoing investigation into the death of Biddersingh’s son, Dwayne in 1992. I was not satisfied with Det. Sgt. Ryans characterization of it as an investigation of “due diligence”. At the preliminary inquiry in this matter he acknowledged that there was concern about foul play with respect to the deaths of Melony and Dwayne and as such it was an ongoing investigation. In the interview, he questioned Biddersingh about his relationship with Dwayne and he only informed him after a number of questions he could be charged with Dwaynes death as a murder. Notwithstanding that it is not a charge he is now facing; the accused appears by the nature of the questions and the latter caution that he was a person of interest or suspect in the death of Dwayne. He should have had his s. 10 b) rights reiterated and an opportunity to exercise those rights, his jeopardy having changed.

[83] If the interview was to be admitted that portion might have been edited out.

[84] However, there is a second overriding concern with respect to the form of the interview in the investigation into Melonie’s death. As noted earlier the accused indicated repeatedly that he wanted to speak to a lawyer. The accused made reference to speaking to a lawyer more than 50 times during the interview. Most of the interview involves the officer asking questions and making suggestions to the accused which elicit very few responses, certainly none which could be considered inculpatory.

[85] In R. v. Seaboyer, [1999] 2S.C.R. 577 the Supreme Court confirmed judicial discretion to exclude evidence where the probative value of the admission of evidence is outweighed by the prejudice to the accused. Judges as guardians of the constitution must exercise this discretion to give effect to the Charter’s guarantee to an accused’s right to a fair trial.

[86] In R. v. Barges, 2005 CanLII 47766 (ON SC), [2005] O.J. No. 5595 (SCJ) at para 92 and 98 Glithero J. noted that where an interview for the most part contained unanswered police theorizing the probative value is slight and the prejudicial effect great:

92 …In my view, it cannot be said that the failure of the accused to respond in the circumstances of an interview by a person in authority can amount to adoption by silence. Admission of this interview may result the jury improperly using the accused’s lack of a meaningful response to the pages and pages of police allegations and theories.

98 …The police theories have no probative value if unadopted by the accused, but have prejudicial effect as constituting a theorization which officers would not be able to advance, directly, when giving their own evidence.

[87] The accused’s right to remain silent and his constant reference to his desire to speak to a lawyer have no probative value and could lead to prohibited reasoning by the jury if perceived as avoidance to responding to police questioning. There is no area of questioning involving the circumstances of Melonie that does not contain an initial or concluding response that he would prefer to speak to a lawyer. In this instance, the prejudicial effect would overwhelmingly effect trial fairness.

[88] In the result, the contents of the interview at 52 Division are inadmissible.

A.J. O’Marra J.

Released: September 28, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

EVERTON BIDDERSINGH

Respondent

REASONS FOR JUDGMENT

A.J. O’Marra J.

Released: September 28, 2015