ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P)158/13
DATE: 2015-10-16
B E T W E E N:
HER MAJESTY THE QUEEN
Ann-Marie Calsavara and Andrea Esson, for the Crown
Applicant
- and -
ELON BROOKS
Jennifer Penman and Ashley Audet, for the Defendant
Respondent
HEARD: December 2, 2014
REASONS FOR JUDGMENT
Barnes, J.
INTRODUCTION
[1] Mr. Elon Brooks is charged with first degree murder. He is alleged to have killed Kevin Pham on December 28, 2012, in the City of Mississauga. The method of murder was by stabbing.
ISSUES
[2] The Crown seeks an order declaring a statement Mr. Brooks made to Police Constable Calcagni voluntary.
[3] Mr. Brooks seeks an order declaring that the statement made to Constable Calcagni was obtained in breach of his ss. 7 and 10(b) Charter rights and should be excluded under s. 24(2) of the Charter.
[4] This case proceeded in the form of a blended voluntariness s. 7, s. 10(b) Charter voir dire.
BACKGROUND FACTS
[5] Mr. Kevin Pham was murdered on December 28, 2012. At about 8:00 p.m. on January 1, 2013, Mr. Elon Brooks turned himself in at the Peel Regional Police station. He was a wanted suspect in connection with the murder.
[6] Constable Doran arrested Mr. Brooks for second degree murder and took him to an interview room with video recording capabilities. Constable Doran gave Mr. Brooks primary and secondary cautions as well as his rights to counsel. Constable Dorvan then took a recorded statement from Mr. Brooks. Mr. Brooks did not incriminate himself.
[7] Mr. Brooks spoke to lawyer, Mr. Bogle at 8:28 p.m. and lawyer Ms. Penman at 8:56 p.m. On each occasion, the recording was stopped to allow Mr. Brooks to have a private conversation with counsel. Just after midnight, on January 2, 2013, Constables Wilson and Calcagni picked up Mr. Brooks from the Homicide Unit and drove him to Peel Police 12 Division cells.
[8] At the 12 Division cells, the station sergeant instructed Constables Wilson and Calcagni to take Mr. Brooks to the hospital to get treatment for a deep laceration to his right index finger.
[9] The police officers and Mr. Brooks arrived at the hospital at 12:45 a.m. Constables Calcagni and Wilson remained with Mr. Brooks while he waited for treatment. During ths time, Mr. Brooks began a conversation with Constable Calcagni. During that conversation, Mr. Brooks admitted that he stabbed Mr. Pham. He explained that this was done in self defence.
[10] It is this conversation that the Crown seeks prove was voluntary. If the statement is ruled voluntary and thus admissible, the Crown intends to use it to cross-examine Mr. Brooks should he testify. The Defence asserts that the statement is not voluntary.
VOLUNTARINESS
[11] The Crown bears the burden of proving that a statement of an accused given to a person in authority is voluntary. The standard of proof is beyond a reasonable doubt. Statements provided: as a result of oppressive conditions; without an operating mind; as a result of promises, inducements, or other circumstances that raise a reasonable doubt as to whether the statement was voluntary, must be excluded. Trial judges must adopt a contextual approach in examining all the circumstances surrounding the making of the statement to determine whether the statement was made voluntarily: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 68-71.
[12] If the trial judge conlcudes that the statement is voluntary, the accuracy or completeness of the words attributed to the accused are matters of weight for the jury: R. v. Lapointe, 1983 3558 (ON CA), [1983] O.J. No. 183 (C.A.); R. v. Ferris, 1994 ABCA 20, [1994] A.J. No. 19 (C.A.); aff’d 1994 31 (SCC), [1994] 3 S.C.R. 756; R. v. Menezes, 2001 28426 (ON SC), [2001] O.J.No. 3758 (S.C.) at paras. 17-30; R. v. Sahota, [2009] O.J. No. 3519 (S.C.), at paras. 25-29.
POSITION OF THE PARTIES
[13] The Crown submits that Constable Doran informed Mr. Brooks of his rights to counsel and gave him his primary and secondary cautions. Mr. Brooks understood all of this. The Crown explains that Mr. Brooks spoke to two lawyers and received legal advice.
[14] According to the Crown, there is no basis to conclude that any police officer who had contact with Mr. Brooks made any threats, inducements or engaged in any behaviour designed to illicit an involuntary statement from him.
[15] The Crown says that there was no change in circumstances in the hospital that required Mr. Brooks to be cautioned again or his rights to counsel repeated.
[16] The Crown says Mr. Brooks initiated the conversation with Constable Calcagni. There is no air of reality to the defence argument that Mr. Brooks believed that Constable Calcagni and the Homicide Unit were separate entities.
[17] According to the Crown, Constable Calcagni did not elicit the statement from Mr. Brooks. Mr. Brooks decided, on his own, to provide an exculpatory statement. Although Constable Calcagni was not required to re-caution Mr. Brooks, he gave Mr. Brooks a primary caution. This caution, in conjunction with the primary and secondary caution previously given to Mr. Brooks by Constable Doran, was enough to prove, beyond a reasonable doubt, that Mr. Brooks gave his statement to Constable Calcagni voluntarily.
[18] The Crown submits that any concerns about the accuracy of the statement are a matter of weight to be determined by the jury.
[19] The Defence submits that it is very apparent that Mr. Brooks thought that the transport police officers were different from the Homicide officers. This is the only reasonable conclusion to be drawn from the fact that, despite resolutely maintaining his rights to silence during his interview with Constable Doran of the Homicide Unit, Mr. Brooks decided to speak to Constable Calcagni.
[20] The Defence submits that there are differences between Constable Wilson’s and Constable Calcagni’s records of the statement provided by Mr. Brooks. The statement was not recorded verbatim. Both officers conceded that they did not record all of Mr. Brooks’ statement to Constable Calcagni. The fact that the statement was not recorded leaves the court with an insufficient record from which to determine whether the statement was made and raises a reasonable doubt as to whether the statement was voluntary.
ANALYSIS
[21] The Crown called several witnesses on the blended voir dire. There is no basis, on the evidence, to conclude that any of these witnesses engaged in any conduct that would render the statement provided by Mr. Brooks involuntary.
[22] There is no basis, on the evidence, to conclude that Mr. Brooks has any physical or intellectual impairment that would impair his ability to communicate or understand the cautions, rights to counsel given to him by Constable Doran.
[23] Mr. Brooks consulted two lawyers on two occasions. Mr. Brooks expressed no difficulty with the advice he received.
[24] The video recording of Constable Doran’s interview of Mr. Brooks reveals an intelligent and articulate young man, who understood the cautions and right to counsel given to him. Mr. Brooks confidently invoked his right to remain silent. Mr. Brooks asserted it several times during his interview with Constable Doran.
[25] Despite several encouragements from Constable Doran for Mr. Brooks to tell his side of the story, Mr. Brooks asserted his right to silence. He made no incriminating statements. He did not waver in his decision to invoke this right. This is why Mr. Brooks’ statement to Constable Calcagni seems puzzling.
[26] Constable Calcagni testified that Mr. Brooks initiated some conversation. They discussed personal matters such as how many siblings Mr. Brooks had. Constable Calcagni said that he gave Mr. Brooks a primary caution and told him that arrangements could be made to get him a lawyer. According to the Constable, Mr. Brooks told him that his mother was trying to get him a new lawyer because he was facing some very serious charges this time.
[27] This is an appropriate juncture to reproduce the statement the Crown seeks to introduce:
Mr. Brooks You want to know what happened, I’ll tell you what happened.
Constable Calcagni Sure what happened?
Mr. Brooks I used to live with this cat [Kevin Pham] he was my boy. We had a beef way back when my girlfriend copped a couple of charges for him, then sometime passed, and my cousin then got in to some BS with the same guy and got some charges for him again, and some possession charges – crack and because he was a YO, they wouldn’t go hard on him.
Constable Calcagni Listen boss, we’re a long way from possession charges to where we are today.
Mr. Brooks I know, true, true, some real shit now.
Constable Calcagni So how did we end up here then?
Mr. Brooks Actually, it’s confidential you know.
Constable Calcagni True, in all honesty, I don’t care to know what happened. I just figured time would pass while we were waiting here at the hospital.
Mr. Brooks You know, it’s always same BS that blows up over nothing.
Constable Calcagni True, but…
Mr. Brooks But these other cops, let them try and build a case against me on something I said or something they think I said.
Constable Calcagni Honestly boss, for you to be here, they have a little bit more than nothing.
Mr. Brooks Yeah, I know they have evidence, but is better to say nothing, than say something that they can use against me, I wouldn’t tell them shit.
Constable Calcagni That still doesn’t answer how we got here?
Mr. Brooks: I went to pick up some dope with my boy, and while I was there sure, didn’t this guy well rollup with his boy and wants to stir up-he came at me with a knife. What was I supposed to do, he came at me. I got the knife, got cut, but stabbed him, what was I supposed to do when he came at me. It was self-defence.
Constable Calcagni: Self-defence or……?
Mr. Brooks: Was self-defence, I mean, yeah I stabbed him but when someone comes at you, what would you do.
Constable Calcagni: I try to avoid the situations completely, but that’s just me.
[28] The portion of Mr. Brooks’ conversation with Constable Calcagni where he uttered the words, “but these other cops, let them try and build a case against me over something I said or something they think I said”, seems to suggest that Mr. Brooks believed that Constable Calcagni was separate from the Homicide police officers. The defence submits that this is the only logical inference that can be drawn because Constable Doran made it clear to Mr. Brooks that the videotaped interview was his last chance to tell the police what really happened.
[29] The defence explains that Mr. Brooks’ use of the words “other cops” demonstrates that Mr. Brooks believed that the Homicide Unit police officers were different from the police officers who were transporting him. In my view this distinction is a red herring because the use of the words “other cops” shows that Mr. Brooks was well aware that he was still speaking to a police officer. He knew he was speaking to a person in authority.
[30] Mr. Brooks clearly understood all the cautions and his right to silence information provided by Constable Doran. Mr. Brooks was articulate and intelligent. When he began to speak to Constable Calcagni, the officer gave him a primary caution which he understood. Constable Calcagni did not give Mr. Brooks a secondary caution. Mr. Brooks was very cognizant of his rights to counsel. He told Constable Calcagni that his mother was getting him a new lawyer. Mr. Brooks was well aware of his legal rights and he made a conscious decision to speak to Constable Calcagni.
[31] Constables Calcagni and Wilson were in full police uniform. Mr. Brooks was transported in a fully-marked police car to the hospital. He was in the custody of the two police officers as he waited for treatment. The only reasonable inference is that Mr. Brooks knew he was speaking to the police.
[32] Both parties have relied on the interview between Constable Doran and Mr. Brooks to bolster their respective positions. A review of the statements Mr. Brooks gave to Constable Calcagni and Mr. Brooks reveals the following:
a. Constable Doran made it clear that the police had all the evidence they needed;
b. Constable Doran gave Mr. Brooks one last chance to provide his side of the story; and
c. Constable Doran told Mr. Brooks that not speaking to the police was perfect because the police had all the confirmation they needed.
[33] This sequence of the conversation with Constable Calcagni and Mr. Brooks is instructive:
Mr. Brooks But these other cops, let them try and build a case against me on something I said or something they think I said.
Constable Calcagni Honestly boss, for you to be here, they have a little bit more than nothing.
Mr. Brooks Yeah, I know they have evidence, but is better to say nothing, than say something that they can use against me, I wouldn’t tell them shit.
Constable Calcagni That still doesn’t answer how we got here?
[34] It is after this conversation sequence that Mr. Brooks makes an admission that he stabbed Mr. Pham but that the stabbing was in self-defence.
[35] Constable Doran told Mr. Brooks that the police had all the information they needed. Constable Calcagni seemed to confirm this, suggesting that the Homicide Unit had a bit more detailed information if they had decided to arrest him. Mr. Brooks acknowledged that he knew the Homicide Unit had evidence. Within this context, the statement by Mr. Brooks is no longer puzzling.
[36] Once Mr. Brooks accepted that the police probably had evidence incriminating him, the decision to provide a statement which could possibly help him escape liability, on the basis of self-defence, is not a farfetched circumstance.
[37] Mr. Brooks understood that Constables Calcagni and Wilson were not part of the Homicide Unit; however, he knew he was speaking to the police. He understood all the cautions and right to counsel. He had had the benefit of speaking to counsel. Mr. Brooks made a conscious and well informed decision to speak to Constable Calcagni.
THE RECORD
[38] Constable Calcagni said that he had other conversation with Mr. Brooks that he did not write down. He explained that he wrote down the important portions of the conversation verbatim.
[39] Constable Wilson was in the vicinity. She testified she made notes of Mr. Brooks’ admission that he stabbed Mr. Pham in self-defence; however, she had been distracted by interactions between a doctor and a mentally ill patient and had not paid close attention to the conversation between Mr. Brooks and Constable Calcagni. Therefore, I do not find Constable Wilson’s evidence and observations helpful in helping me decide if there was anything else, prior to or during the conversation, that Constable Calcagni could have said or done that would have called the voluntariness of the statement into question. The issue of the accuracy of the statement is reserved for the jury.
[40] Constable Calcagni explained that there were portions of the conversation with Mr. Brooks that was chit chat and which he did not note down. This is a concern because I have concerns about Constable Calcagni’s ability to recall the events of that day.
[41] For example, Constable Wilson testified that she knew that Mr. Brooks was charged with second degree murder. Constable Wilson said she was informed of this charge by the Homicide Unit. Constable Wilson said she did not know the details of the charge. Within that context, it is difficult to accept that her partner and fellow transporting officer, Constable Calcagni, did not know that Mr. Brooks was charged with second degree murder until Mr. Brooks informed him of this at the hospital.
[42] Constables Calcagni and Wilson testified that during transport back to the station, Mr. Brooks pointed out the neighbourhood where the incident giving rise to his charges occurred. Constable Wilson said she and Constable Calcagni consulted each other as they recorded this comment by Mr. Brooks in their note books.
[43] Constable Calcagni does not recall if he was driving the cruiser on the way back. However, he explained that if he were driving, he would have made notations at red traffic lights during the journey. In effect, Constable Calcagni does not recall when he made notations of Mr. Brooks’ comment in his note book.
[44] Constable Calcagni was very emphatic that he did not send an email to Homicide Constable Doran to inform him that Mr. Brooks had provided a statement. An email was produced confirming that the email was sent by Constable Calcagni. Given these difficulties in Constable Calcagni’s ability to recall some of the events, the contents of the “chit chat” conversation become important. This portion of the conversation may inadvertently or otherwise have contained conversation that would undermine the voluntariness of the statement provided by Mr. Brooks. I am left in a reasonable doubt that the statement provided by Mr. Brooks is voluntary and, therefore, the Crown’s application is dismissed.
[45] The statement is ruled inadmissible and the defence application seeking an exclusion of the statement on the basis of alleged Charter breaches is moot.
Barnes, J.
Released: October 16, 2015
COURT FILE NO.: CRIMJ(P)158/13
DATE: 2015-10-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
ELON BROOKS
REASONS FOR JUDGMENT
Barnes, J.
Released: October 16, 2015