ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIM J (P) 697/13
DATE: 2015 11 22
BETWEEN:
HER MAJESTY THE QUEEN
Colin Henderson and Jacob Sone for the Crown
- and -
JALANI DALEY, JANANTHAN KANAGASIVAM, MAJURATHAN BASKARAN, THIRUMAL KANTHASAMY and SRIMOORTHY PATHMANATHAN
Paul Erskine and Charlena Claxton for Jalani Daley
Stephen Morris for Jananthan Kanagasivam
Andrew Vaughan for Majurathan Baskaran
Peter Zaduk for Thirumal Kanthasamy
Christopher Assie for Srimoorthy Pathmanathan
Pre-trial Motions Heard: September 28 – November 20, 2015
Voluntariness Ruling
Statement of Jalani Daley, April 17, 2009
FAIRBURN J
Introduction
[1] On April 17, 2009, Cst. Richard Warman and his partner, Cst. A.J. Kahlon, stopped a vehicle. There were four men in the vehicle. The man seated in the back, behind the front passenger’s seat, told Cst. Warman that his name was Jalani Daley. He provided Cst. Warman with his home address and phone number. The officer noted these details on a card, along with information respecting the declarant’s appearance. The Crown seeks the admission of the statement given by this individual.
[2] There are two questions to be answered on this application: (1) the degree to which the court must be satisfied that the accused was the declarant as a pre-condition to admissibility; and (2) whether the statement was voluntarily given.
[3] The Crown submits that there is some evidence indicating that the declarant was Mr. Daley and, therefore, there is no bar to admissibility. The Crown further submits that the statement was voluntarily given and should be admitted. Defence counsel argues that the Crown has failed to establish that the declarant was Mr. Daley. He says that this should end the admissibility inquiry. If not, counsel argues that I should have a reasonable doubt about the voluntariness of the statement.
[4] No Charter issue has been raised with respect to the declarant’s statement. On November 10, 2015, I provided my decision with respect to the admissibility of this statement. These are my written reasons.
The Facts
[5] Cst. Warman testified that on April 17, 2009, at approximately 1:15 a.m., he and Cst. Kahlon were driving eastbound on McNicoll Avenue in Toronto. This is a four lane road, with two eastbound and two westbound lanes. They were travelling in the lane closest to the shoulder of the road.
[6] A car passed the police vehicle on its left side. It had a very loud muffler. The police checked the licence plate and discovered that the car was registered to a suspended driver. They decided to pull over the vehicle. Aside from addressing the muffler noise, Cst. Warman testified that the officers wished to determine if the suspended driver was in the vehicle. If so, they wanted to ensure he had been served with his suspension notice.
[7] Cst. Warman testified that the record system does not verify whether someone has been served with a notice of suspension. A check is required. This check, through a centralized system, can take anywhere from five minutes to an hour.
[8] The officers were driving a marked police cruiser and were dressed in uniform. Cst. Warman attended at the passengers’ side of the vehicle. Once Cst. Kahlon determined that the driver was not the suspended individual, Cst. Warman asked the passengers to identify themselves to determine if they were the suspended driver. The backseat passenger gave the following information: (1) name, Jalani Daley; (2) date of birth, October 22, 1986; (3) home address, 16 Loradeen Court, Toronto; (4) phone number, 416-318-1726.
[9] The declarant provided this information verbally. It was accepted at face value. Cst. Warman did not follow-up and ask for a piece of the declarant’s identification.
[10] The declarant was male, black, about 5’10’’, with short black hair, and a goatee. Cst. Warman filled this information out on a “contact card”, called a 208 card. He agreed that the process of filling out a 208 card is a practice known as “carding”. The information collected on the card ultimately goes into a centralized database. He agreed that 208 cards are investigative tools.
[11] When asked why he obtained these details, Cst. Warman testified that he and his partner were both concerned that the suspended driver was in the vehicle and they required this information to serve him with his notice of suspension. He said that the details asked were things that he always asks for. He testified that these details allow him to satisfy himself of an individual’s identity. He also testified that he tries to record all of his interactions with people he encounters in the public.
[12] As no one in the vehicle was the suspended driver, a notice of suspension was not served. The driver was cautioned about the loud muffler and was permitted to proceed.
[13] Cst. Warman testified that if the male passenger had refused to provide the information, “that would have been the end of it”. He asserts that the passengers were free to go at any time, that they could have walked away and that they were not detained. Cst. Warman did not tell the men in the vehicle that they did not have to answer his questions and that they could leave. Furthermore, Cst. Warman and Cst. Kahlon did not provide a caution to the men in the stopped vehicle.
[14] Cst. Warman agreed that he has been involved in many traffic stops over his 18 years as a police officer. He testified that in all of the stops in which he has been involved, he has never seen a passenger walk away from a stopped vehicle.
[15] After the stopped vehicle left the scene, Cst. Warman completed his notes. He did this while sitting in the police car on the side of the road. At 1:50 a.m. he entered “10-7” into his notes, to indicate that he was out of service and going back to the station. This was about 35 minutes following when he initially saw the vehicle. He would have made this notation just after leaving the scene. He would not have written “10-7” until he completed his notes. The notes took a few minutes to complete.
[16] Cst. Warman testified that some of the time was taken in waiting for backup, which he and his partner had called for when the car was initially stopped. It also took some time to check the various identities of the men in the stopped vehicle and check their names through CPIC.
[17] Cst. Warman testified that the male passenger who identified himself as Jalani Daley communicated with him in English. The declarant had no difficulty answering the officer’s questions, nor did Cst. Warman detect any signs of impairment. The tenor of his interaction with the declarant was low key and Cst. Warman considered it typical of an average traffic stop.
[18] Sergeant Chris Sajben also testified. Sgt. Sajben interviewed Jalani Daley on November 25, 2009. He testified that at that point Mr. Daley had “very short” black hair on the sides, back and top of his head. He testified that the declarant had a well-trimmed goatee and is a black male. Still pictures taken from a video were admitted into evidence. Though Sgt. Sajben testified that the pictures are not entirely clear, he noted that they generally depict what Jalani Daley looked like on November 25, 2009.
[19] Cst. Ian Harloff of the Peel Regional Police testified. He was involved in executing a search warrant at Jalani Daley’s home on November 18, 2009. It authorized the seizure of a cell phone with the number 416-318-1726.
[20] Cst. Harloff searched upstairs bedrooms. He located a cellular phone. The officer scrolled through the phone to determine if it was the one authorized to be seized. Cst. Harloff located three numbers in this phone, one being for Shaka – 416-318-1726. Cst. Harloff left the cellular phone where he found it because he did not believe it was the one authorized for seizure.
[21] The Information lodged in the Ontario Court of Justice in this case was also placed before the court. It contains the same address and date of birth that had been provided to Cst. Warman during the traffic stop. As well, on a recognizance of bail (vacated on October 23, 2013), Mr. Daley’s date of birth appears the same. One of his sureties is also listed as living at the same residential address given to Cst. Warman.
Positions of the Parties
[22] The Crown argues that there are two matters that must be dealt with on this admissibility voir dire: (1) who made the statement; and (2) whether the statement of the declarant was voluntarily given. As for the first issue, Mr. Henderson, for the Crown, argues that the Crown need only present “some evidence” that the declarant was Mr. Daley. Provided there is some evidence of this fact, then the court’s sole consideration is one of voluntariness which must be proven on a balance of probabilities. Mr. Henderson asserts that the Crown has presented more than “some evidence” that the statement is that of Mr. Daley and has proven the voluntariness of the statement beyond a reasonable doubt.
[23] Mr. Erskine, counsel to Mr. Daley, argues that the Crown has not established the identity of the declarant. He submits that, as a prerequisite to admissibility, the Crown must show beyond a reasonable doubt that Mr. Daley was the declarant. Anyone could have posed as Mr. Daley on April 17, 2009 and provided his information to the police. Mr. Daley should not be held to account for a statement made by someone else.
[24] Mr. Erskine argues that, while admissibility hearings are typically conducted on a balance of probabilities, in the context of an accused’s statement to a person in authority, the court must be satisfied beyond a reasonable doubt that the accused is the declarant before the statement is admitted into evidence. Counsel advocates for a higher threshold because statements against interest are powerful pieces of evidence going to the ultimate issue in the case.
[25] Even if the court is satisfied beyond a reasonable doubt that the declarant is the accused, Mr. Erskine argues that the Crown has failed to establish the voluntariness of the roadside statement. He asserts that the Crown has failed to establish that the declarant had an operating mind when he provided the information. Counsel ties this submission to the fact that Cst. Warman did not provide any caution to the accused. Since the declarant did not understand his potential jeopardy, his statement cannot be voluntary and should be excluded.
The Identity Issue
Legal Principles
[26] With rare exceptions, questions of admissibility are determined on a balance of probabilities: R. v. Evans, 1993 86 (SCC), [1993] 3 S.C.R. 653 [Evans]; R. v. L.T.H., 2008 SCC 49, 2008 S.C.C. 49, at para. 58 [L.T.H.]. The voluntariness rule is one of the very few exceptions to this general rule. The Crown must prove the voluntariness of an accused’s statement to a person in authority beyond a reasonable doubt as a prerequisite to admissibility: R. v. Oickle, 2000 SCC 38, 2000 S.C.C. 38, at para. 30 [Oickle].
[27] Assertions in a statement purported to be made by an accused cannot be accepted for their truth unless there is a preliminary determination that the accused made the statement. The Crown position is that in a jury trial, this determination falls within the sole domain of the jury. For purposes of admissibility, the trial judge’s task is simply to ensure that there is “some evidence” that the accused is the declarant. In Evans, at para. 31, the majority held:
The determination of a preliminary question of fact in respect of both authenticity and admissibility is a prelude to access to the contents of the statement as proof of the truth thereof. If the standard of proof on a balance of probabilities is appropriate to determine a preliminary question of admissibility, there is no reason to exact a higher standard due to the mere fact that the determination is shifted to the fact-finding stage of the trial.
[28] The Crown argues that the critical aspect of this passage is the majority’s comment that the “determination is shifted to the fact-finding stage of the trial”. The Crown is bolstered in this view by para. 32 of Evans:
If there is some evidence to permit the issue to be submitted to the trier of fact, the matter must be considered in two stages. First, a preliminary determination must be made as to whether, on the basis of the evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused. If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt. The Crown argues that the second full sentence in this passage should be read as: “First, a preliminary determination must be made by the trier of fact as to whether …”.
[29] In other words, leaving the voluntariness doctrine aside, in a jury trial, the judge admits the statement if there is some evidence that the accused is the declarant. The jury then decides on the basis of evidence admissible against the accused, whether the Crown has established on a balance of probabilities that the accused is the declarant. In a judge alone trial, a judge may allow the statement in on a some evidence standard, but not find on a balance of probabilities that the accused is the declarant, in which case the statement will not be considered in determining the ultimate result.
[30] There is significant attraction to the Crown’s argument. Read contextually, I have come to the view that Evans can be read to mean that there need only be “some evidence” that the declarant is the accused before a statement can be admitted into evidence.
[31] Nonetheless, there are a few authorities that arguably stand in some opposition to this approach. For instance, in R. v. J.F., 2011 ONCA 220, the court held that in the context of adopted statements, there must exist evidence that establishes on a “balance of probabilities”, that the statement has been adopted by the accused before it becomes “admissible” against him: J.F., at para. 46. Justice Rosenberg cites Evans as support for this proposition.
[32] As well, there is a clear passage in L.T.H. that could be taken to cast serious doubt on the “some evidence” threshold from Evans. In L.T.H., Rothstein J., speaking for three members of the minority court, wrote the following about Evans (L.T.H., at para. 71):
In Evans, the type of evidence at issue was an admission by the accused in the form of hearsay. This Court held that, before admitting the evidence, the Crown had to establish on a balance of probabilities the precondition that the statement was made by the accused. [italics added]
[33] The L.T.H. majority do not take issue with the minority’s characterization of the threshold for admissibility. While the comment is made in a different context, it cuts against the Crown’s position. To get around L.T.H., Crown counsel argues that the second sentence from the L.T.H. passage above should read: “… before [the jury admits] the evidence, the Crown had to establish on a balance of probabilities …”.
[34] Mr. Erskine submits that the majority in L.T.H. goes further than the minority and supports an admissibility threshold of beyond a reasonable doubt. He emphasizes that in the majority’s view, where the admission of evidence may have a “conclusive effect with respect to guilt”, proof beyond a reasonable doubt is required: L.T.H., at para. 58, citing from R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at para. 71.
Beyond a Reasonable Doubt
[35] None of the parties have pointed me to any authorities suggesting that the identity of the accused as the declarant as a precondition to admissibility, must be established beyond a reasonable doubt. Indeed, this threshold is in direct opposition to the Evans judgment which, at its very highest, can be interpreted to impose an admissibility threshold on a balance of probabilities. On the basis of Evans alone, I reject the need for the Crown to establish beyond a reasonable doubt that the accused is the declarant before a statement said to be the accused’s can be admitted into evidence.
[36] There is a great deal of evidence that may be powerful and persuasive in the eyes of a trier of fact. DNA is a classic example of such evidence. Admission should not be determined based on its power to persuade, but on the rules of evidence. Here, the jurisprudence does not support proof beyond a reasonable doubt.
“Some Evidence” vs. Balance of Probabilities
[37] As to whether the rule for the admission of a statement purporting to be that of the accused is one of “some evidence” or a “balance of probabilities”, evidence texts support a “some evidence” approach to questions of threshold admissibility: S. Casey Hill, et al., eds., McWilliams’ Canadian Criminal Evidence, vol. 2, 4th ed. (Aurora, Ont.: Thomson Reuters, 2012) at 20:30; David Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Carswell, 2015) at p. 65.
[38] Having had the opportunity to consider the authorities on this point, and taking into account counsel’s submissions, I conclude that notwithstanding the language used in L.T.H., the appropriate threshold test for admission is one of “some evidence”. The simple admission of the evidence does not mean that the statement will necessarily be used. In fact, the jury must be instructed that before using the statement, they must be satisfied that the accused was the declarant. As the triers of fact, performing their role at the end of the case after all of the evidence has been heard, jurors are uniquely positioned to make this determination.
[39] I find that the correct test to apply to questions of admissibility in this context is one of “some evidence”. Of course, where the statement is made to a state actor, then the voluntariness rule also comes into play.
Legal Principles Applied to the Facts
[40] In determining whether there is “some evidence” that the accused is the declarant, the court may consider the content of the words said to be spoken. At the admissibility stage, when determining the question of identity, while those words cannot be taken for the truth of their content, they can have the effect of narrowing the identity of the declarant to a “group of people who are in a position to make similar representations”: Evans, at para. 19. Bearing in mind the following facts, I find that Mr. Daley was in the group of people who could have given the information provided to Cst. Warman and that the physical details noted by the officer support the inference that the declarant was Mr. Daley:
(i) The declarant self-identified as Jalani Daley.
(ii) I am satisfied that both the additional identifiers, including a date of birth and home address, correspond with Mr. Daley’s information.
(iii) The telephone number provided by the declarant corresponds with a number found on a cellular phone located in the bedroom of an individual residing in Mr. Daley’s home.
(iv) The male declarant is described as black, with a goatee and short black hair. I am satisfied that many of the descriptors noted by Cst. Warman fit Mr. Daley’s appearance when he was observed by Sgt. Sajben several months after the traffic stop.
[41] Not only do the above considerations constitute some evidence that Mr. Daley was the declarant who spoke to Cst. Warman, I am satisfied of this fact on a balance of probabilities. Identity has been sufficiently established to make the statement admissible. The remaining question is one of voluntariness.
Voluntariness
[42] The accused did not bring a Charter application with respect to the traffic stop on April 17, 2009. The following analysis addresses the voluntariness issue that was before the court.
The Law of Voluntariness
[43] The voluntariness rule itself attempts to strike a balance between the interests of the accused, in ensuring he has a choice whether to speak, and society, by protecting the societal interest in the effective crime investigation. In Oickle, at para. 33, Iacobucci J. noted: “All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of either of these objectives.” See also: R. v. Singh, 2007 SCC 48, at para. 45.
[44] The first stage of the voluntariness inquiry involves assessing whether there have been inducements, such as promises or threats, sufficient to overcome the will of the accused: Oickle, at para. 57; R. v. Spencer, 2007 SCC 11, at paras. 15, 17, 19. The court also looks to whether the individual has an “operating mind” and whether there has been an atmosphere of oppression created by the police, sufficient to cast doubt on the voluntariness of the statement.
[45] As for the operating mind doctrine, the court’s focus should be on whether the accused is aware of what he is saying and that he is saying it to the police who can use it against him and to his detriment: R. v. Whittle, 1994 55 (SCC), [1994] S.C.J. No. 69, [1994] 2 S.C.R. 914, at para. 49 (Whittle). As noted by Sopinka J. in Whittle:
The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest
[46] One of the circumstances to consider in the context of a voluntariness voir dire is a caution: R. v. E.B., 2011 ONCA 194, at para. 88 [E.B.]; Singh, at para. 31. While the absence of a caution will not render a statement involuntary, its presence will not transform the statement into a voluntary one. It is just one factor to consider in the contextual analysis.
[47] At the second stage of the voluntariness inquiry, and where relevant, the court assesses whether police trickery was used in obtaining the statement and, if so, whether the trick or tricks were sufficient to shock the community: Oickle, at paras. 65-67. There is no suggestion of tricks being used in this case.
The Positions of the Parties
[48] The Crown argues that Mr. Daley’s statement is voluntary beyond a reasonable doubt. The Crown submits that there were no promises or threats. The Crown further submits that the statement was not the product of oppression and that Mr. Daley had an operating mind. Even though the accused was not cautioned, Crown counsel asserts that a caution was not necessary as the passengers of the motor vehicle were not detained. In the alternative, if Mr. Daley was detained, then the officer’s failure to caution him is simply one factor to consider among others in a voluntariness assessment.
[49] Mr. Erskine argues that while there is no Charter complaint, Mr. Daley should have been cautioned that anything he said could be used against him in the future. Defence counsel argues that the failure to caution the accused meant that he was not acting with an operating mind because he did not understand the implications of speaking to the police and what might happen to the information he provided. Mr. Erskine asserts that the failure to caution Mr. Daley deprived him of an operating mind and the statement is involuntary.
The Legal Principles Applied to the Facts
[50] I am satisfied beyond a reasonable doubt that Mr. Daley’s statement was voluntary.[^1]
[51] Cst. Warman, whose evidence I accept as true, did not offer any inducements.[^2] He did not threaten Mr. Daley or promise him anything in return for the limited information he provided. I have no voluntariness concerns in respect to these issues. His will was not overborne.
[52] As it relates to the suggestion that he did not have an operating mind because Cst. Warman did not caution him, I disagree. A police caution assists an individual in understanding that they are not obliged to say anything to the police, but if they choose to do so, what they say can be used in evidence against them. In short, the caution assists in conveying the right to silence and the implications that may flow if an individual chooses to forgo that right.
[53] While some people should receive a caution, even when they are not detained within the meaning of s. 9 of the Charter, a caution need not be given every time the police speak to an individual. On one level, individuals always face jeopardy when they speak to the police because, if the police keep a record of the interaction, the record may be used at a later time to implicate the individual in criminal wrongdoing. This future possibility – a month, a year, or ten years away – does not trigger the need for a caution at the time of the police-citizen interaction. Indeed, it is hard to imagine what such a caution would look like. It is important to recall that there is no Charter application suggesting an arbitrary detention within the meaning of section 9 of the Charter. Nor is there a s. 10(b) Charter application.
[54] Cautions only need to be given when individuals face jeopardy because they are suspected of having committed crime. The Singh majority adopted the following comment from René Marin’s Admissibility of Statements (9th ed. (looseleaf)), at pp. 2-24.2 and 2-24.3, as “a useful yardstick for the police on when they should caution a suspect” (Singh, at para. 32):
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.
[55] As noted by Charron J., even if the suspect is not formally arrested or under detention, “police officers are well advised to give the police caution in the circumstances” described above: Singh at para. 33. Of course, the right to counsel is administered upon arrest or detention and without delay. Where an investigative detention is linked to a suspicion that the individual has committed or is committing crime, in these circumstances, a police caution comes together with the need to administer the right to counsel; R. v. Suberu, 2009 SCC 33.
[56] Having regard to all of the evidence, I find that Mr. Daley was not under investigation or suspected of anything. Even though Mr. Daley has not brought a Charter application, counsel suggested that he was detained. I find that he was not detained within the meaning of s. 9 of the Charter. There is no evidence that he was physically or psychologically detained: R. v. Grant, 2009 SCC 32, at para. 44.
[57] It is well established that passengers in motor vehicles are not necessarily detained, particularly in the absence of any police direction or demand: R. v. Harris, 2007 ONCA 574; R. v. Frank, 2012 ONSC 6274; R. v. Bradley, 2008 NSCA 57; R. v. Yousofi, 2011 ONSC 2298. There is no evidence suggesting any police direction or demand. Mr. Daley could have walked away. We do not know why he did not do so as he did not testify. Cst. Warman was under no obligation to caution Mr. Daley.
[58] If I am wrong in this regard, the presence or absence of a caution is merely a factor to consider in determining the voluntariness of a statement: Singh, at para. 31; Boudreau v. The King, 1949 26 (SCC), [1949] S.C.R. 262. As noted by Watt J.A. in E.B., at para. 88, “the absence of the standard caution is only one factor to be considered in the voluntariness analysis - just as the presence of such a caution does not automatically lead to the conclusion that a statement is voluntary”. The absence of a caution here, even if one was required, did not render an otherwise voluntary statement involuntary.
[59] Mr. Daley had an operating mind. The operating mind test requires an inquiry into the accused’s state of mind at the time the statement is given. Cst. Warman testified that the declarant spoke English and appeared to understand what he was being asked. I have no doubt that the declarant’s mind was operating at the time he provided the information to Cst. Warman. The accused had full mental capacity and made an active choice to speak.
[60] I find beyond a reasonable doubt that Mr. Daley’s statement was voluntary.
Conclusion
[61] The information provided by the declarant to Cst. Warman on April 17, 2009 is admissible in this proceeding. There is more than some evidence that the declarant was Jalani Daley. The statement is voluntary beyond a reasonable doubt.
[62] I request submissions as to how this evidence should be led so as to minimize the impact arising from the fact that Mr. Daley had police contact unrelated to this case on the evening in question.
FAIRBURN J
Released: November 22, 2015
COURT FILE NO.: CRIM J (P) 697/13
DATE: 2015 11 22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
- and -
JALANI DALEY, JANANTHAN KANAGASIVAM, MAJURATHAN BASKARAN, THIRUMAL KANTHASAMY and SRIMOORTHY PATHMANATHAN
Defence
Voluntariness Ruling
Statement of Jalani Daley, April 17, 2009
FAIRBURN J
Released: November 22, 2015
[^1]: While I recognize that identity is in issue, for ease of reference, I refer to the statement as being “Mr. Daley’s statement” in this part of my reasons.
[^2]: I accept Cst. Warman’s evidence as a candid account of his encounter with Mr. Daley. He was a careful and thoughtful witness. He was not combative. His credibility was not challenged in closing submissions. His core evidence was not challenged in cross-examination and, in fact, he agreed with much of what was put to him.