COURT FILE NO.: CRIM J (P) 697/13
DATE: 2015 11 22
SUPERIOR COURT OF JUSTICE – ONTARIO
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 Jananthan Kanagasivam, November 22, 2009
FAIRBURN J
Introduction
[1] Five accused are before the court facing a 37-count indictment. Several of the allegations relate to theft, possession, robbery, kidnapping, firearms and conspiracy. The offences span a time frame from March 13, 2009 to August 28, 2009.
[2] Mr. Jananthan Kanagasivam was arrested at his home on November 18, 2009. He was taken into police custody and interviewed. The Crown seeks the admission of his statement. On November 10, 2015, I gave my oral ruling finding this statement voluntary, with written reasons to follow.
Arrest of Jananthan Kanagasivam
[3] On November 18, 2009, at 6:34 a.m., two Peel Regional Police officers knocked on the door of 194 Cabernet Circle, where Mr. Kanagasivam resided with some of his family members. The officers were not in police uniform and arrived in an unmarked police vehicle. They were wearing protective police vests and had badges on.
[4] Cst. Milan Sablic and Cst. Joseph Dominie testified that the man who answered the door identified himself as Jananthan Kanagasivam’s brother. Cst. Sablic testified that, after the man answered the door, the officers told him that they were there to arrest his brother for robbery. Both officers testified that they were invited into the residence.
[5] Once inside, both officers saw Mr. Kanagasivam at the top of the stairs. Cst. Sablic testified that Mr. Kanagasivam’s brother told them they could go upstairs. Cst. Dominie testified that at 6:37 a.m., he told Mr. Kanagasivam he was under arrest for robbery. He said that they proceeded upstairs and arrested Mr. Kanagasivam in that location. Cst. Dominie had no memory of going upstairs.
[6] Cst. Sablic testified that Mr. Kanagasivam’s caution and right to counsel were administered upstairs. Cst. Dominie recalled that the accused’s caution and right to counsel were not given until they arrived at 22 Division of the Peel Regional Police.
[7] According to Cst. Sablic, the arrest went well and Mr. Kanagasivam was cooperative. The officers allowed him to go to his bedroom to get dressed. His brother was allowed to assist. Cst. Sablic testified that Cst. Dominie and he attended in the accused’s bedroom. According to Cst. Sablic, the accused asked to bring his cell phone with him to the police station. Mr. Kanagasivam then identified a black iPhone touch. The officer subsequently took custody of this phone. Cst. Dominie has no current recollection of Mr. Kanagasivam making a request to bring anything and does not recall the accused taking anything with him.
[8] Mr. Kanagasivam was escorted out of his residence, placed in the back of the police cruiser, and taken to 22 Division. Cst. Sablic testified that Mr. Kanagasivam was handcuffed before being placed into the police cruiser. While Cst. Dominie does not recall whether the accused was handcuffed, he said that his usual practice is to handcuff someone to the rear before placing them in a police car. Both officers testified that they left the residence at 6:43 a.m. Cst. Sablic testified that they arrived at the police station at 6:55 a.m. Cst. Dominie testified that they arrived there at 6:56 a.m.
[9] Cst. Dominie testified that after he provided the accused with the caution and his right to counsel, Mr. Kanagasivam said that he wished to speak with duty counsel. Mr. Kanagasivam was then processed and Cst. Sablic escorted him to the cells. After this point, neither officer had any further dealings with Mr. Kanagasivam.
[10] Both officers testified that Mr. Kanagasivam showed no signs of injury or illness. He showed no signs of alcohol or drug consumption. Both testified that they did not assault him, promise him anything or threaten him in any way. The accused did not complain of any injury.
The Holding Cell
[11] The following was agreed to for purposes of Mr. Kanagasivam’s voluntariness voir dire:
i. Mr. Kanagasivam entered the booking area at 6:55 a.m.
ii. Cst. Rebecca Parkins was the cells officer at the time Mr. Kanagasivam was booked.
iii. Mr. Kanagasivam was asked “routine questions”. The accused said that he had no medical conditions and that he did not require medications.
iv. At 7:04 a.m., Cst. Parkins took him to a cell. She checked on him either over a video monitor or in person every half hour until 10:00 a.m. She had no concerns about his wellbeing.
v. Cst. Michael Hope was responsible for checking on Mr. Kanagasivam between 10:30 and 11:30 a.m.
vi. Around 11:59 a.m., Cst. Parkins took Mr. Kanagasivam from his cell to an interview room.
vii. Cst. Parkins had no conversations with Mr. Kanagasivam other than during the booking procedure.
Statement of Jananthan Kanagasivam
[12] Det. David Matheson conducted the interview. Det. Matheson is currently a Peel Regional police officer. At the time of Mr. Kanagasivam’s interview, he was still a constable. The entire interview was video recorded.
[13] Det. Matheson entered the room at 12:03 p.m. and introduced himself. He had no contact with the accused prior to this time. Mr. Kanagasivam confirmed that he understood the reason for his arrest. He was then given a secondary caution and was read his right to counsel. Mr. Kanagasivam confirmed that he wished to speak with a lawyer.
[14] At 12:05 p.m., Det. Matheson left the room and arranged for counsel. About ten minutes later he took Mr. Kanagasivam to another room so that he could take a call from duty counsel. Det. Matheson did not have a conversation with the accused outside of the video statement room. About seven minutes later, the accused was returned to the interview room and the officer brought him some water.
[15] Det. Matheson asked the accused a number of preliminary questions such as his date of birth, home address, and telephone number. He then questioned Mr. Kanagasivam about the specifics of the offences. Det. Matheson did the vast majority of the talking. He inquired as to whether Mr. Kanagasivam’s family would be in danger because of one of the co-accomplices. He also asked Mr. Kanagasivam if he was in danger. Mr. Kanagasivam remained calm and collected throughout the interview.
[16] Late into the interview, the accused asked to speak with duty counsel again. When the officer said “[y]ou’ve already talked to them once”, the accused asked, “I’m not allowed to talk to duty counsel again?” Shortly after, within minutes, Mr. Kanagasivam reinforced that he wished to speak with counsel. Det. Matheson told the accused that another call with duty counsel would be arranged. The interview ended.
The Positions of the Parties
[17] Mr. Sone, on behalf of the Crown, argues that Mr. Kanagasivam’s police statement is voluntary beyond a reasonable doubt. While there were some gaps in Cst. Dominie’s memory, the combined evidence of Cst. Dominie and Cst. Sablic should satisfy me that Mr. Kanagasivam was treated appropriately during his arrest. The Crown argues that if there was a delay in giving the right to counsel or caution, this should not impact the voluntariness of the accused’s statement.[^1]
[18] The Crown further submits that Mr. Kanagasivam was treated well while at the police station. Nothing untoward occurred. His full statement is recorded and the video reveals a voluntary statement. The Crown argues that even if I find that the officers tricked the accused to obtain his statement, the trick would not shock the conscience of the community.
[19] Defence counsel, Mr. Morris, argues that Det. Matheson induced the accused’s statement. While Mr. Morris recognizes that the police are allowed to continue questioning an accused who has asserted his silence, he argues that Det. Matheson’s inducements had a threatening quality that created an atmosphere of oppression. Specifically, Mr. Morris considers Det. Matheson’s repeated questions about whether the accused or his family was in danger from the co-accused to be an inappropriate inducement that created an atmosphere of oppression.
[20] Mr. Morris submits that the police used inappropriate trickery to obtain Mr. Kanagasivam’s statement. In particular, Mr. Morris suggests that Det. Matheson tricked the accused into providing some personal information, including his phone number, when the officer told him that he takes that information whenever someone is arrested. Mr. Morris says that this trick would shock the community. Mr. Morris argues that posing questions about the safety of the accused’s family, without evidence to suggest they were in harm’s way, was an unfair approach and should not be condoned by the court.
The law of voluntariness
[21] While accused have a right to remain silent, they do not have a right to demand that the police refrain from speaking to them: R. v. Singh, 2007 SCC 48, at para. 28 [Singh]. Standing alone, persistent attempts to persuade someone to speak to the police do not offend the voluntariness rule.
[22] There are two stages to a voluntariness inquiry. The first step involves assessing whether there were inducements, such as promises or threats, sufficient to overcome the will of the accused: R. v. Oickle, 2000 SCC 38, at para. 57 [Oickle]. At this stage, the court also looks to whether the accused had an operating mind and whether there existed an atmosphere of oppression sufficient to cast doubt on the voluntariness of the statement. The entire contents of a statement, and the circumstances surrounding the taking of the statement, must be explored to determine whether voluntariness has been proven beyond a reasonable doubt: Oickle, at paras. 54, 57; R. v. Spencer, 2007 SCC 11, at paras. 13-15, 19 [Spencer].
[23] The police are permitted to encourage, persuade and convince a suspect to speak to them. Indeed, Iacobucci J. commented on the fact that, in the “vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess”: Oickle, at para. 57.
[24] While threats of torture will render a statement involuntary, not all threats involve torture and are typically much more nuanced in nature: Oickle, at para. 48. The police cannot offer inducements, either through threats or promises, which are “strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”: Oickle, at paras. 47, 57. See also: Spencer, at paras. 15, 17; R. v. M.S.M., 2014 ONCA 441, at para. 9; R. v. Belle, 2010 ONSC 1618, at para. 40 . As Deschamps J. held in Spencer, at para. 15, “while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement”.
[25] While oppression has the potential to inspire a false confession, the trial judge must consider the circumstances surrounding the taking of the statement: R. v. Hoilett (1999), 1999 CanLII 3740 (ON CA), 121 O.A.C. 391. While not an exhaustive list, the trial judge should consider the following factors when determining whether the surrounding circumstances regarding the taking of a statement have been oppressive: whether there has been a lack of food, water, clothing, sleep, medical attention, and counsel. The court may also take into account questioning that is aggressive, intimidating and prolonged: Oickle, paras. 59-60.
[26] In some circumstances, the court will also assess whether trickery was used to obtain the statement. While tricks can be used, tricks that shock the community will render the statement involuntary: Oickle, at paras. 65-67. Tricks that rise to this level have the potential to scar the integrity of the administration of justice. The court explains the rationale for this standard in R. v. Rothman, 1981 CanLII 23 (SCC), [1981] S.C.J. No. 55, at para. 127:
It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community.
[27] In the end, the trial judge must look to all of the circumstances and the entire context in which the statement is given to determine whether there exists a reasonable doubt about the confession’s voluntariness.
The law of voluntariness applied to the facts
[28] I find the police evidence on this voir dire to be clear, forthright and honest. The differences in the evidence of Cst. Sablic and Cst. Dominie underscore their honesty. I find that Cst. Dominie simply does not recall where in Mr. Kanagasivam’s house the arrest took place. Rather than take a guess, Cst. Dominie testified that he did not recall. Much of their evidence was left unchallenged.
[29] I also accept the evidence of Det. Matheson, who was equally clear in his testimony. Det. Matheson only spent a short time with Mr. Kanagasivam outside of the interview room when he facilitated the accused’s call with counsel. For the rest of their time together, I have been able to see Det. Matheson’s conduct on the video. His evidence is consistent with the content of the video, including the calm demeanour with which he projects. I believe it to be true.
[30] I find beyond a reasonable doubt that Mr. Kanagasivam’s statement was voluntary. Mr. Kanagasivam was arrested at home. If he did not get his caution and right to counsel until at the police station, these were provided late. However, even if there was a delay in granting him his right to counsel and caution, I find that the delay had no impact on the voluntariness of his statement. This is particularly true given that the accused did not speak to the police until after he had been informed of and provided with his right to counsel.
[31] I find that all police contact with Mr. Kanagasivam off of the video was appropriate. He was not threatened and he was not promised anything. His statement was not induced. The police officers did not use any physical violence or intimidation. As the video recording reveals, Mr. Kanagasivam understood everything said to him and was not intoxicated or impaired in any way. I find that the officers never exhibited aggression towards Mr. Kanagasivam.
[32] I find that Det. Matheson was polite and pleasant throughout the video recording of Mr. Kanagasivam’s interview. Det. Matheson brought Mr. Kanagasivam water and used a conversational tone with the accused.
[33] I find nothing inappropriate was said. On a few occasions, Det. Matheson asked Mr. Kanagasivam whether he or his family were in danger from others who were involved in the criminal scheme. While defence counsel characterizes these questions as both a threat and inducement, I disagree. There is no evidence that such questions were anything other than legitimate. There was no suggestion put to Det. Matheson that this was a ruse to get Mr. Kanagasivam to speak.
[34] Even if I found that Det. Matheson’s questions constituted a threat or inducement, I must still determine whether Mr. Kanagasivam’s will was overborne. I do not find this to be the case. Mr. Kanagasivam is calm and collected throughout his interview. He is sitting forward, toward the officer, with his arms crossed for much of the interview. Throughout the video recording, the accused is simply listening to Det. Matheson’s lengthy comments.
[35] Mr. Kanagasivam is not timid. His body language throughout the interview repeatedly displays that he understood his right to remain silent. He had the wherewithal to ask for counsel a second time. When the officer commented that he had already spoken to counsel once, Mr. Kanagasivam asserted his right to counsel by asking, “I’m not allowed to talk to them again?” These are not the actions or words of a person whose will has been overborne.
[36] I also find that Mr. Kanagasivam was not the subject of oppression. The circumstances simply do not support any such claim. The accused was well clothed. The accused gave his statement mid-day. He was not in need of any medical attention. He did not express the need for food, water, clothing, or sleep. The questioning was not aggressive or intimidating. The statement occurred over a relatively short period of about an hour and ten minutes. Mr. Kanagasivam was in the interview room for less than 2 hours in total.
[37] I find that there was no trick used that would shock the community. In fact, I am not at all sure that Det. Matheson used a trick to obtain Mr. Kanagasivam’s statement about his cell phone number. This suggestion was never put to Det. Matheson when he testified. It would be interesting to know what Det. Matheson would say about the suggestion that asking for tombstone data upon arrest is a trick. I note that Mr. Kanagasivam was told this, and provided the subject information, after he had spoken with counsel. He was not tricked into providing the information and, if he was, the trick would not reach the Rothman level of shock required to render the statement involuntary.
[38] I find that there is nothing about the interview that would adversely impact on the integrity of justice.
Conclusion
I find beyond a reasonable doubt that Mr. Kanagasivam’s statement was voluntary and is therefore admissible.
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 Jananthan Kanagasivam, November 12, 2009
FAIRBURN J
Released: November 22, 2015
[^1]: The accused did not raise a ss. 7 or 10(b) Charter argument. This ruling deals only with what has been placed before the court and argued: voluntariness.