ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: YC-14-50000004

DATE: 20150929

BETWEEN:

HER MAJESTY THE QUEEN

– and –

P.J.

Maureen Bellmore and Valerie Culp, for the Crown

Mitchell Chernovsky and Matt Fisico, for the Defendant

HEARD: September 18, 21, and 22, 2015

M.A. Code J.

ruling on statement voir dire

A. OVERVIEW

[1] The accused P.J. is a young person facing trial on a charge of first degree murder. He was seventeen years old at the time of the offence. The homicide took place on the evening of March 4, 2013, in mid-town Toronto. The Crown seeks to tender in evidence a statement made by the accused to the police on the afternoon of March 6, 2013, that is, less than two days after the offence.

[2] The statement was audio-taped and video-taped. The accused was not under arrest or in custody. The statement is exculpatory. I assume the Crown wishes to use it at trial in order to infer that the accused told deliberate lies to the police and to ask the trier of fact to draw a further inference of consciousness of guilt from the alleged lies. I am advised that P.J. will not dispute the fact that he caused the death of Michael Cocomello, the deceased in this case, by stabbing him. I am also advised that the real issues at trial will be self-defence and provocation.

[3] The burden is on the Crown to prove voluntariness and to prove compliance with s. 146 of the Youth Criminal Justice Act, beyond reasonable doubt, before the statement can be tendered at trial. A voir dire was held and the Crown called the three police witnesses who were involved in taking the statement and in decisions that led up to taking the statement. No defence evidence was called on the voir dire.

[4] The two live issues to be decided are: compliance with s. 146; and common law voluntariness. I intend to address the issues in that order.

B. COMPLIANCE WITH S. 146 OF YOUTH CRIMINAL JUSTICE ACT

[5] Section 146(2)(b) of the Youth Criminal Justice Act sets out a number of informational requirements that must be met when the police take a statement from a young person. Section 146(2), (6), and (7) also enact statutory rules relating to the admissibility of the statement. Finally, s. 146 places the burden on the Crown. As a result, this is not akin to a Charter Motion where the burden is on the accused. See: R. v. L.T.H. (2008), 2008 SCC 49, 234 C.C.C. (3d) 301 (S.C.C.).

[6] There is no serious issue that the police in this case did not comply with the informational requirements set out in s. 146(2)(b). The officers concede this point. They took the view that s. 146 did not apply because none of the three triggering events that engage s. 146 had yet occurred.

[7] Section 146 does not purport to regulate all police interactions with witnesses, persons of interest, or suspects who become involved in a criminal investigation and who happen to be under the age of eighteen. The section only applies where one of three possible triggering events has occurred: first, the young person is under arrest; second, the young person is detained; or third, the police have “reasonable grounds for believing that the young person has committed an offence”.

[8] In this case, P.J. was clearly not under arrest. The main argument on the voir dire concerned whether the police had “reasonable grounds”. I will, nevertheless, address the issue of whether P.J. was “detained”, before turning to the main issue of “reasonable grounds”.

[9] The test for when a suspect is “detained” was recently re-stated by the Supreme Court of Canada, in the context of ss. 9 and 10 of the Charter, in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.) and R. v. Suberu (2009), 2009 SCC 33, 245 C.C.C. (3d) 112 (S.C.C.). In Grant, supra at para. 44, the Court provided a useful summary of the law on this point, as follows:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[10] The accused in this case was asked to come down to the police station, he was accompanied by his mother, and they were free to leave and did leave at the end of the police interview. Accordingly, there is no suggestion of detention by “physical restraint” or detention by “legal obligation”. The only form of detention that could possibly apply is “psychological detention” due to a reasonable belief by P.J. that he “had no choice but to comply”.

[11] I am satisfied that there was no “psychological detention” in this case. Every one of the seven factors outlined by Martin J.A. in R. v. Moran (1987), 1987 124 (ON CA), 36 C.C.C. (3d) 225 at 258-9 (Ont. C.A.) point away from a finding of “detention”:

• the accused was asked to contact the police, he called the police himself, and he was then asked to come to the station;

• the accused attended at the police station with his mother and was not escorted by a police officer;

• the accused and his mother freely left the police station at the end of the interview;

• the interview took place at an early stage of the investigation, well before the police had decided whether the accused was the perpetrator, and at a time when a number of persons, including P.J., were “of interest” and when a number of persons, including P.J., had potentially relevant information that could further the investigation;

• the police did not have reasonable and probable grounds to justify an arrest of anyone, at this early stage, as I will discuss in greater detail below;

• the police never “confronted [P.J.] with evidence pointing to his guilt” and, instead, asked exploratory questions about his last contact with the deceased and about his knowledge generally of the deceased. In other words, the questions were “of a general nature designed to obtain information”, as Martin J.A. put it in R. v. Moran, supra at 259;

• evidence that the accused subjectively believed that he had “no choice but to comply” is absent, as the accused did not testify on the voir dire. However, he stated or implied at the beginning of the interview that he assumed he was “a witness” and, later in the interview, he asked whether he had to answer certain questions. He was told that he did not. He then asked the police to “skip” these questions. It, therefore, does not appear that P.J. subjectively believed that he had “no choice” but to submit to a police interview.

[12] In all these circumstances, I am satisfied that the accused was not “detained” and the Crown has met its burden on this issue.

[13] The third and last criterion that triggers the s. 146 informational requirements is where the police have “reasonable grounds for believing that the young person has committed an offence”. The leading authorities are all to the effect that this particular statutory standard is the same as the s. 495 Criminal Code standard for arrest and it is not the same as the lower common law standard for an investigative detention. In other words, it means “reasonable and probable grounds” or likely guilt and not “reasonable suspicion” or possible guilt. See: R. v. M.T., 2014 ONCA 153, 306 C.C.C. (3d) 171 at paras. 18-20 (Ont. C.A.).

[14] The police had gathered a considerable amount of evidence in the time between the homicide (shortly after 9:00 p.m. on March 4, 2013) and the interview of P.J. (shortly after 4:00 p.m. on March 6, 2013). In brief summary, the police knew the following:

• first, an eye witness had provided information inferring that the homicide took place in a car in which there were three occupants, in addition to the deceased, and that the car had then left the scene;

• second, the deceased’s mother took a dying declaration from her son after he exited the car and struggled home. He told his mother that his assailant’s name was Elliot, Ellia, or Ellio. The mother believed she knew an Elliot from their old neighbourhood;

• third, the deceased’s mother gave somewhat varying accounts of her son’s activities while he was at home, shortly before he went outside and was eventually stabbed in the car. In these various accounts she described him as talking on his cell phone, receiving a phone call, receiving a message of some sort on his phone, and telling her that he was going out either to buy lottery tickets or to buy TTC tokens. It is somewhat of an over-statement to suggest, as Mr. Chernovsky submitted, that these accounts from the mother inferred that Cocomello was lured outside to his death by a telephone caller;

• fourth, the police obtained the deceased’s cell phone records from Rogers, through an emergency request, and learned that the deceased had been in contact with two telephones in the hour prior to his death. Most of his contacts, both by way of text messages and phone calls, were to a number registered to an adult female named Patria J. There were also two outgoing phone calls that the deceased made shortly before the homicide to a phone registered to Henry Busibe, who lived nearby;

• fifth, the police spoke to Patria J. who advised that she had a son, P.J. The police also learned from their own records that P.J. lived at the same address as the one to which the phone was registered. It could be inferred that P.J. was likely the person who was using the Patria J. phone when it was in contact with the deceased on the evening of the homicide;

• sixth, the police seized evidence from the deceased’s room that could infer some involvement in the drug trade. They also had information from the deceased’s girlfriend, and from another friend, suggesting that the deceased had a grievance against someone who had paid him for drugs with U.S. counterfeit dollars;

• seventh, a baseball cap that did not belong to the deceased was left at the scene of the homicide. It had blood on it and it was sent to the C.F.S. for DNA testing.

[15] It can be seen that various threads or leads emerged from this body of evidence, all of which needed to be pursued through further investigation. A number of these leads did not point to P.J. as the perpetrator, at this early stage of the investigation:

(i) first, the baseball cap was an important piece of evidence and it did not point to anyone at this stage, let alone to P.J.;

(ii) second, the dying declaration was an important piece of evidence and the police were looking into three individuals who may have known the deceased and who had names similar to Elliot, Ellia, or Ellio. The police had no information connecting P.J to such a name;

(iii) third, the possible drug-related grievance about payment in counterfeit money needed to be investigated, as a potential motive or identifier that could explain who was meeting with Cocomello in the car. There was no evidence connecting P.J. to this aspect of the case.

[16] The fourth lead that the police had was the deceased’s telephone records. They connected Cocomello to two telephones which were likely in the possession of Henry Busibe and P.J. in the time period just before the homicide. In my view, this one lead, standing alone, could not reasonably or probably infer that either P.J. (or Busibe) was the perpetrator of the homicide. All the police knew, at this early stage, was that P.J. and Busibe likely had relevant information about the deceased’s whereabouts and/or activities and/or intentions and plans in the time shortly before his death, given that they had been in telephone contact. None of this approached “reasonable grounds” to believe that P.J. (or Busibe) was “probably” the perpetrator of the homicide, nor did it amount to “reasonable grounds to suspect” that P.J. was the perpetrator. Furthermore, the other three leads did not yet point towards P.J.

[17] In the result, there was no violation of s. 146 as none of the three triggering events that engage s. 146 had yet occurred.

C. COMMON LAW VOLUNTARINESS

[18] The scope and meaning of the modern common law doctrine of voluntariness, and its intersection with the s.7 Charter right to remain silent, is set out fully in R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 (S.C.C.) and in R. v. Singh (2007), 2007 SCC 48, 225 C.C.C. (3d) 103 (S.C.C.).

[19] I am satisfied that nothing occurred during the police interview of P.J. which could amount to an inducement, that is, where the will is overborne after a quid pro quo is held out. The interview was short, lasing only twenty-six minutes, it was all tape recorded, and it was exculpatory. The only argument concerning an inducement was the submission that the exhortation to tell the truth given early in the interview – “you know you can’t lie to me. This is your one opportunity to tell me the truth” – amounted to an inducement. The test in R. v. Oickle, supra at paras. 48-57, for determining whether an inducement results in an involuntary statement, is whether it is “strong enough to raise a reasonable doubt about whether the will of the subject has been overborne” and, in this regard, “the most important consideration … is to look for a quid pro quo offer by interrogators”. In this case, there was no quid pro quo offered to P.J. in return for telling the truth and there is no suggestion that his will was overborne. Indeed, at one point in the interview he asked the officers, “do I have to answer” certain questions. When the officers told him “you don’t have to answer anything you don’t want to”, he replied that they should “skip this one”. Mr. Chernovsky conceded this answer suggested that P.J. had the strength of will not to answer when he was uncomfortable with some of the questions. I am satisfied that there were no inducements of the kind described in Oickle.

[20] Similarly, there was nothing in the circumstances of this interview that suggested an atmosphere of oppression or lack of an operating mind. P.J. attended at the police station with his mother and left at the end of the interview with his mother. The interview was short. P.J. was told at the outset that the police were investigating the murder of Michael Cocomello. He answered questions in a clear and coherent manner. There is nothing to suggest he was in distress or confused. Finally, he was never confronted with fabricated evidence implicating him in the offence. Indeed, he was never confronted with any evidence implicating him in the homicide.

[21] Given the absence of any concerns relating to these three traditional branches of the voluntariness rule – inducements, oppression, and operating mind – most of the argument focused on the inadequacy of various cautions that were given to P.J. and whether this amounted to improperly tricking him out of his right to remain silent.

[22] There is no doubt that P.J. was never given a full s. 10(b) caution about the right to counsel. He was simply told, “you also have … your right if you want, you can call a lawyer … or you can call a lawyer for any question you may have regarding this or anything down the road”. Similarly, P.J. was never given a full caution concerning the right to remain silent. He was simply told, “I can’t force you to say anything, only you know if you do have information that would be great to help us”. When he later asked if he had to answer certain questions he was told, “you don’t have to answer anything you don’t want to”. He then declined to answer those particular questions (about the names of his associates). Finally, there is no doubt that P.J. was never given a full K.G.B. caution and he was not put under oath. He was simply told, “you understand that it’s against the law to make a false statement to the police … And that you could be charged”.

[23] The deficiencies in these three cautions would raise serious issues in other contexts. For example, if P.J.’s statement was being tendered in evidence pursuant to the K.G.B. exception to the hearsay rule, the deficiencies in the K.G.B. caution would be important. However, where the statement is tendered by the Crown pursuant to the hearsay exception for statements of the opposing party (the accused), a proper K.G.B. caution has never been required. Similarly, if P.J. had been detained, or if the police had reasonable grounds to arrest, the failure to give a proper s. 10(b) caution or a proper caution concerning the right to remain silent would be significant. As Charron J. explained, speaking for the majority in R. v. Singh, supra at paras. 31-33:

Although the confessions rule applies whether or not the suspect is in detention, the common law recognized, also long before the advent of the Charter, that the suspect’s situation is much different after detention. (As we shall see, the residual protection afforded to the right to silence under s. 7 of the Charter is only triggered upon detention.) After detention, the state authorities are in control and the detainee, who cannot simply walk away, is in a more vulnerable position. There is a greater risk of abuse of power by the police. The fact of detention alone can have a significant impact on the suspect and cause him or her to feel compelled to give a statement. The importance of reaffirming the individual’s right to choose whether to speak to the authorities after he or she is detained is reflected in the jurisprudence concerning the timing of the police caution. René Marin, in his text Admissibility of Statements (9th ed. (looseleaf)), at pp. 2-24.2 and 2-24.3, provides a useful yardstick for the police on when they should caution a suspect:

The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence. An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she would do if the person attempted to leave the questioning room or leave the presence of the officer where a communication or exchange is taking place. If the answer is arrest (or detain) the person, then the warning should be given.

These words of advice are sound. Even if the suspect has not formally been arrested and is not obviously under detention, police officers are well advised to give the police caution in the circumstances described by Marin. Of course, with the advent of the Charter, the s. 10 right to counsel is triggered upon arrest or detention. [Italics of Charron J. in the original, underlining added for emphasis.]

[24] The Court made much the same point in its recent decision in R. v. Grant, supra at para. 38, where McLachlin C.J.C. and Charron J. stated:

In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence, and consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation. Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel. [Emphasis added.]

[25] I have already summarized the state of the police investigation, at the time when the interview of P.J. commenced, and have concluded that they lacked reasonable and probable grounds to arrest. I have also summarized the circumstances relevant to “detention” and have concluded that P.J. was not “detained”. In my view, the police were not required to give P.J. full and complete cautions concerning the right to counsel and the right to remain silent. He was neither detained nor was he subject to arrest or to common law investigative detention. The state of the investigation was such that the police could reasonably believe that P.J. had information concerning the deceased’s movements, plans, activities, and intentions in the hour before his death, due to the likely frequent telephone contact between them in that period. The police did not have s. 495 grounds to arrest nor did they have common law grounds to detain. Accordingly, they were under no obligation to provide any cautions about s. 10(b) and s. 7 rights, let alone full and complete cautions. The cautions they did give were rudimentary but they conveyed much of the substance of the two rights in layperson’s terms. I am satisfied that the fact that some degree of cautioning took place, and the particular form and content of the cautions, could not amount to trickery in these circumstances, let alone a trick that is “so appalling as to shock the community”, as required by R. v. Oickle, supra at paras. 65-67.

[26] The final argument, in the alternative, was to the effect that the police may not have had reasonable grounds to arrest or to detain at the outset of the interview but that they acquired sufficient grounds by the mid-point of the interview. It was submitted that they should have cautioned P.J. at this juncture, before proceeding further with the interview.

[27] The police began the interview by asking P.J. how he knew the deceased Michael Cocomello. From pp. 7-12 of the transcript, P.J. explained their past history as friends or acquaintances. At p. 12 the police asked, “how often would you say you communicate with him?” P.J. gave an estimate of the frequency of their contacts and then he volunteered, “I haven’t talked to him in a while and then the other day he just linked [phoned] me”. From pp. 13-17, the police clarified the time, date, and contents of this call and P.J. advised that it was on Monday, March 4, 2013 at about 4:00 p.m., that is, on the afternoon of the day when the homicide occurred. At p. 17, P.J. clarified that the deceased actually called him “a couple of times … I would say around like four times” during this 4:00 p.m. time period on the day of the homicide. At p. 18, P.J. further volunteered that “I think he called me back around eight or so but I didn’t pick up”. The police then asked at pp. 19-20 whether they sent text messages to each other and P.J. replied, “I think he texted me but I called him every time”. When asked, “you’ve never texted him that day”, P.J. replied “I could have … Yeah … I don’t remember”. At p. 20, the police asked, “when would be the last time you texted him that night” and P.J. replied, “probably like 6:30-ish”. Given the uncertainty of this answer, the police asked “early evening or so”, and P.J. replied “yeah”. The police then asked, “that was the last time you texted him but then he called you probably around eight”. P.J. replied, “Yeah … The time could be off but yeah it’s probably like around that time … like around then”.

[28] Mr. Chernovsky submitted that at this point in the interview, at p. 21 of the Transcript, the police must have known that P.J. was lying about his telephone contacts with the deceased, just prior to the homicide. He further submitted that when these lies are added to the previous body of evidence, already summarized above, the police had sufficient grounds to arrest or detain and they should have cautioned P.J. before proceeding any further.

[29] I cannot accept this argument. The police knew from the Rogers records that there were twenty-nine text messages and four phone calls, between the Patria J. phone and the Cocomello phone, in the approximately one hour period from 8:16 p.m. to 9:11 p.m. on the evening of March 4, 2013. P.J. was not cross-examined by the police officers on these records, indeed, most of the information he gave the police about his phone contacts with Cocomello was volunteered. Furthermore, his estimates about the number of contacts and the time of the contacts with Cocomello on the night in question were couched in terms that admitted to some uncertainty. The police did not yet have the text messages themselves and they did not yet know whether someone else may also have been using P.J.’s phone that evening. It was later in the interview, at p. 37, that the police asked whether anyone else had used the phone on the night of the homicide and P.J. told them that it was exclusively in his possession. In all these circumstances, it is an over-statement to say that the police must have known that P.J. was lying. The police undoubtedly suspected that P.J. was not giving them a full and accurate accounting of all his contacts with the deceased that evening. I am sure this is why Det. Lioumanis cautioned P.J. again, at p. 21, by telling him, “if … you’re involved somehow, you have the right to call a law