ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIM J (P) 697/13
DATE: 2015 11 24
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 Srimoorthy Pathmanathan, September 1, 2009
FAIRBURN J.
Introduction
[1] Five accused are before the court facing a 29-count indictment[^1]. 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] On August 28, 2009, Mr. Pathmanathan was arrested in Peel Region for possession of stolen property. On August 31, 2009, he received bail on this matter, only to be rearrested in respect to an attempted robbery in York Region, alleged to have been committed on May 12, 2009. The York Regional Police Service picked him up and transported him to their 4 District. He was interviewed in the early morning hours of September 1, 2009. The Crown seeks the admission of this statement and says it is voluntary. The defence disputes this fact.
[3] While I previously provided my oral decision, finding the September 1, 2009 statement voluntary beyond a reasonable doubt, these are my written reasons for coming to this conclusion.
The Facts
[4] On August 28, 2009, the Peel Regional Police had 130 Melford Drive, Toronto under surveillance. The police believed that stolen merchandise was being stored in unit 5.
[5] Cst. Warren Chase formed part of the surveillance team. When a white panel truck pulled into the back of 130 Melford Drive, and backed up to unit 5, the arrests were ordered. Cst. Chase went to the white truck and ordered a male party he had seen get out of the driver’s side of the vehicle to the ground. He told the man that he was under arrest for possession of stolen property. This man was Mr. Pathmanathan.
[6] The accused complied with the direction to lie on the ground. He was handcuffed. So too were other males who were arrested at the scene. Cst. Chase testified that he provided him with his right to counsel and told him that he did not have to say anything in answer to the charge. Cst. Chase testified that he read directly from a pre-printed form in the front of his notebook. A copy of this form was filed as an exhibit in this proceeding. Among other things, it includes the right to counsel and caution as follows:
Right To Counsel:
It is my duty to inform you that
- You have the right to retain and instruct counsel without delay.
- You have the right to telephone any lawyer you wish.
- You also have the right to free advice from a Legal Aid lawyer.
- If you are charged with an offence you may apply to the Ontario Legal Aid Plan for legal assistance. 1-800-265-0451 is a toll free number that will put you in contact with a Legal Aid Duty Counsel Lawyer for free legal advice right now.
- Do you understand?
- Do you wish to call a lawyer now?
Caution To Charged Person
You (are charged will be charged) with _________.
Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so but whatever you say may be given in evidence.
[7] Mr. Pathmanathan told Cst. Chase that he understood his right to counsel and that he wished to call a lawyer.
[8] Cst. Chase maintained custody and control of Mr. Pathmanathan. Although he may have walked away from him for a short while, he does not recall having done so. He considered himself responsible for Mr. Pathmanathan while he was handcuffed. He did not threaten him or promise him anything. He simply told him he was under arrest, gave him his rights, and told him that he would be transported elsewhere.
[9] Cst. Chase eventually handed Mr. Pathmanathan over to Cst. Strangio who transported him to 12 Division in Peel Region. Cst. Strangio testified that he took custody of both Mr. Pathmanathan and one of his alleged co-accomplices, arrested at the same time, Mr. Baskaran.
[10] At 5:35 p.m., Cst. Strangio left the arrest scene and took the men to 12 Division, Peel Regional Police. Mr. Pathmanathan was taken into the building at 7:35 p.m. He was turned over to the booking officer.
[11] Cst. Strangio offered Mr. Pathmanathan no inducements. He had no conversation with him at all. He did not note any signs of alcohol or drug use. He did not see any sign of injury. Cst. Strangio was not cross-examined.
[12] Cst. John Neilson is a Peel officer who was on shift at 12 Division when Mr. Pathmanathan was brought into the station. He was working in the cells. Cst. Neilson stands behind a desk when a prisoner is brought in from the sally port. He fills out a prisoner log and when he is satisfied things are in order, he calls the staff sergeant. Cst. Neilson filled out a prisoner’s log for Mr. Pathmanathan. It reveals that he did not complain about any injuries and said that he was taking no medications.
[13] Det. Cole is an officer with the York Regional Police. He testified that he had placed a hold on Mr. Pathmanathan after he was arrested in Peel Region. Det. Cole asked to be notified when Mr. Pathmanathan would be released. On August 31, 2009, Det. Cole received a call from court security at the Peel courthouse suggesting that Mr. Pathmanathan was about to be released on bail. As such, Det. Cole directed that Mr. Pathmanathan be arrested for attempted robbery. He does not believe that he gave the court security officer any details about the offence for which he was to be arrested.
[14] Det. Cole then contacted two York Region uniform officers, one of whom was Cst. Shaun Smith. He asked the officers to attend at the courthouse to pick up the accused and deliver him to 4 District in York Region.
[15] Cst. Smith testified that he picked up Mr. Pathmanathan at 7:38 p.m. from 7750 Hurontario Street, Brampton (the courthouse). He was with Cst. Flint. When they got to the courthouse, Cst. Flint arrested Mr. Pathmanathan. Mr. Pathmanathan was placed in the back of the police cruiser. They departed Brampton at 8:18 p.m. and arrived at 4 District at 8:46 p.m. They did not assault or threaten Mr. Pathmanathan in any way. Cst. Smith was not cross-examined.
[16] Sgt. Robert Shaw is a York Regional Police officer who was in charge of 4 Division on August 31, 2009 when Mr. Pathmanathan was brought in by Cst. Smith and Cst. Flint. He was brought before Sgt. Shaw who ensured that he understood why he was there, on charges of conspiring to commit robbery.
[17] Sgt. Shaw saw Mr. Pathmanathan at 8:48 p.m. that evening and asked him to confirm that he knew why he was in the building. He also asked him if he had received his right to counsel. Sgt. Shaw testified that Mr. Pathmanathan had already spoken to counsel and did not wish to consult with counsel again. Sgt. Shaw was confident that Mr. Pathmanathan spoke English well enough to understand what they were discussing.
[18] While he could not remember if Mr. Pathmanathan informed him that he had spoken with counsel, or whether the officers who brought Mr. Pathmanathan in had informed him of this fact, he knew that he did not wish to speak to a lawyer again. If the officers had told Sgt. Shaw about the fact that Mr. Pathmanathan did not wish to speak to counsel again, he testified that he would have confirmed this fact with Mr. Pathmanathan.
[19] Sgt. Shaw said that Mr. Pathmanathan had no complaints or injuries. Once he was booked, and until Det. Doug Cole took him to be interviewed, no other officer spoke with him. Sgt. Shaw was not cross-examined with respect to his evidence about having been informed that Mr. Pathmanathan had already spoken with counsel and that he did not wish to speak with counsel again.
[20] Det. Doug Cole interviewed Mr. Pathmanathan. He retrieved Mr. Pathmanathan from his cell and took him to the interview room. Other than telling Mr. Pathmanathan to come with him, nothing was said on route to the interview room. Their entire interaction in the interview room was captured on video tape. The interview commenced at 6:12 a.m. and was completed by 6:27 a.m. It started with Det. Cole asking Mr. Pathmanathan if he understood that he had been “arrested for robbery”? He was corrected by Mr. Pathmanathan, who said: “This is attempt, attempt, attempted robbery”. Det. Cole stood corrected.
[21] At the outset of the interview, Det. Cole also confirmed with Mr. Pathmanathan that his lawyer was aware of the York Region matter:
Cole: “Your lawyer was-, is aware of this from when you were in Peel, when you got …
Cole: … released. I know it’s confusing. You’re in Peel on charges, I think, of, uh, possession of stolen property?”
[22] Det. Cole testified that he did not threaten Mr. Pathmanathan or offer him anything in return for a statement. Quite to the contrary, he told Mr. Pathmanathan that he was going to request he be detained. Det. Cole did not detect that Mr. Pathmanathan was under the influence of drugs or alcohol.
[23] Det. Cole did not provide Mr. Pathmanathan with a caution or the right to counsel. He agreed that when he asked Mr. Pathmanathan to confirm his cellular telephone number that he knew it could be a “key” piece of evidence in the case.
[24] The statement is about 15 minutes in length. Throughout the interview, Mr. Pathmanathan intermittently asserted his right to silence, saying that his “lawyer will talk” and telling the officer to speak to his lawyer.
[25] Mr. Pathmanathan did not testify on the voir dire.
The Positions of Counsel
[26] Mr. Assie, on behalf of Mr. Pathmanathan, argues that the statement is involuntary. He says the Crown has failed to prove that Mr. Pathmanathan was cautioned or properly afforded his right to counsel. Mr. Assie argues that these Charter breaches occurred both when Mr. Pathmanathan was initially arrested on August 28, 2009 and when he was rearrested on August 31, 2009.
[27] Mr. Pathmanathan does not bring a Charter application seeking the exclusion of his statement under s. 24(2). Rather, Mr. Assie takes the position that since Singh was decided by the Supreme Court of Canada, the right to silence under s. 7 of the Charter has become inextricably linked with the voluntariness doctrine. As such, the defence argues that the Crown bears the onus of establishing beyond a reasonable doubt that the accused’s s. 7 Charter right has not been breached.
[28] Mr. Assie argues that the Crown failed to establish that a proper caution and right to counsel were given in this case and, as such, I should have a doubt about whether his right to silence was breached. It is said that even if Mr. Pathmanathan was properly cautioned in Peel, it was only with respect to the offence of possession of property obtained by crime and not the more serious offence of robbery with a firearm that carries a four year minimum sentence. As for the York charges, Mr. Assie emphasizes that, at its highest, Mr. Pathmanathan was told that he was arrested for attempted robbery. He should have been cautioned with respect to attempted robbery with a firearm which again carries a mandatory minimum sentence.
[29] The defence argue that the lapses in affording proper cautions and rights to counsel, should raise a reasonable doubt about the right to silence which, in turn, should raise a reasonable doubt about voluntariness[^2].
[30] Mr. Henderson, for the Crown, argues that the statement is voluntary beyond a reasonable doubt. Mr. Henderson says that there is no evidence that Mr. Pathmanathan was induced to provide a statement. He was not impaired by alcohol or drugs. He was treated well. None of the classic concerns about voluntariness are present.
[31] As for the Charter argument raised by the defence, Mr. Henderson says that the Crown need not prove that the right to counsel or caution were given. While these factors can be considerations on a voluntariness inquiry, the Crown is under no obligation to prove these things to any standard. There was no Charter application before the court and, according to Mr. Henderson, the Crown led sufficient evidence to assuage any concerns about voluntariness[^3].
The Law of Voluntariness
[32] As a prerequisite to admissibility, an accused’s statement to a person in authority must be proven voluntary beyond a reasonable doubt. The higher admissibility threshold placed on questions of voluntariness is designed to fend off against the admission of unreliable statements and those that could serve to harm the reputation of justice because of the circumstances in which they were obtained.
[33] The confessions rule, and threshold for admissibility, is rooted in a well-supported concern over false confessions: R. v. Singh, 2007 SCC 48, at paras. 29-30 [Singh]; R. v. Oickle, 2000 SCC 38, at paras. 32, 47 [Oickle]. From time-to-time, innocent people confess to things they have not done: R. v. Hart, 2014 SCC 52, at paras. 6-8. The threshold test placed upon the Crown in establishing voluntariness as a prerequisite to admission, is a reflection of the fact that involuntary statements can lead to false statements, which can lead to wrongful convictions. As Moldaver J. put it in Hart, at para. 6, this is a “fact we cannot ignore”.
[34] The voluntariness rule is calibrated to strike a balance between the interests of the accused and society. The accused’s interest involves ensuring that there exists a choice whether to stay silent or speak with the police. The societal interest involves discovering the truth: R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, at p. 180 [Hebert]; Singh, at para. 45. As Charron, J. held in Singh, the suspect being interviewed may be the “most fruitful source of information” available to the police: Singh, at para. 45. In Oickle, at para. 33, Iacobucci J. cautioned that those applying the voluntariness rule “must never lose sight of either of these objectives.” See also: Singh, at para. 45.
[35] A balance must be struck between the individual right to silence and the societal right to investigate criminal wrongdoing and discover the truth. The Court in Hebert called this balance “critical”:
The balance is critical. Too much emphasis on either of these purposes may bring the administration of justice into disrepute -- in the first case because the state has improperly used its superior power against the individual, in the second because the state's legitimate interest in law enforcement has been frustrated without proper justification: at p. 180.
[36] 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. At this stage, 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. 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 in this case.
[37] Under the first stage, the trial judge must take a contextual approach to the question of voluntariness and consider the entire statement: Oickle, at paras. 54, 57; R. v. Spencer, 2007 SCC 11, at paras. 13-15, 19 [Spencer]. The police cannot offer inducements, either through the form of threats or promises, that are “strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”: Oickle, at para. 57; Spencer, at paras. 15, 17, 19.
The Law of Voluntariness Applied to the Facts
[38] There is no suggestion in this case that the police used promises or threats that overcame Mr. Pathmanathan’s will. Nor is it suggested that he did not have an operating mind or that he was the victim of oppressive circumstances. Nor is there anything in the record that would support such claims.
[39] I accept the evidence of the officers in this case. They testified in a straight forward and careful manner. They were largely unchallenged in their evidence. There was no suggestion put to any of them that Mr. Pathmanathan was mistreated in any fashion or induced to say anything. Quite simply, I believe their evidence and it all points to an entirely voluntary statement.
The Right to Silence and The Voluntariness Rule
[40] This leaves the legal issue raised by the defence, that the Crown failed to establish that Mr. Pathmanathan’s right to silence, protected under s. 7 of the Charter, was not infringed by a failure to properly caution him and provide him with the right to counsel. Mr. Assie says that these failures should raise a reasonable doubt about the voluntariness of Mr. Pathmanathan’s statement.
[41] The position advanced by Mr. Pathmanathan first requires an understanding of the relationship between the right to silence and the voluntariness rule. In the context of a police interview, there is a direct relationship between the s. 7 right to silence and the voluntariness rule: Singh, at para. 8. An accused’s success on a s. 7 Charter right to silence application will inform voluntariness, just as the Crown’s failure to establish voluntariness beyond a reasonable doubt will inform the s. 7 right to silence. Justice Charron summarized this concept as follows in Singh, at para. 8:
where a statement has survived a thorough inquiry into voluntariness, the accused’s Charter application alleging that the statement was obtained in violation of the pre-trial right to silence under s. 7 cannot succeed. Conversely, if the circumstances are such that the accused can show on a balance of probabilities that the statement was obtained in violation of his or her constitutional right to remain silent, the Crown will be unable to prove voluntariness beyond a reasonable doubt.
[42] The Singh majority went on to observe that because the Crown bears the burden of proving voluntariness beyond a reasonable doubt, the common law affords “greater protection to the accused and there is no point in conducting a distinct s. 7 inquiry”: Singh, at para. 25. Of course, this does not mean that the s. 7 right to silence is rendered useless because of the voluntariness doctrine. The constitutional right to silence contains residual protections that extend beyond its direct relationship to voluntariness, an issue that is of no concern to this case: Singh, at paras. 25, 40.
[43] Without bringing a Charter application, Mr. Pathmanathan says that in the context of the voluntariness voir dire, the Crown failed to prove that he received a proper right to counsel and caution. Therefore, he says, his right to silence was breached. Therefore, he says, his statement is involuntary. I disagree.
[44] The s. 10(b) right to counsel, like the s. 7 right to silence, is supported by the broad concern rooted in the principle against self-incrimination, “an organizing principle of criminal law”: R. v. Jones, 1994 85 (SCC), [1994] 2 S.C.R. 229, at p. 249. The s. 10(b) right to counsel upon arrest or detention is intended to ensure that detainees know their rights so that they can make meaningful choices about how to exercise them. Paramount among these rights is the s. 7 right to remain silent if the individual chooses to do so: R. v. Sinclair, 2010 SCC 35, at paras. 24-26 [Sinclair]; R. v. McCrimmon, 2010 SCC 36, at para. 18; Hebert, at pp. 176-77; R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, at para. 19; R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595, at paras. 30, 38; Singh, at para. 33.
[45] Notwithstanding the importance of the s. 10(b) right to counsel to the s. 7 right to silence, these rights should not be confused. The right to counsel is not synonymous with the right to silence. Where a s. 10(b) breach is said to undermine the right to silence and voluntariness, the two inquiries will inevitably overlap, but they “remain distinct inquiries”: Sinclair, at para. 29. As McLachlin C.J. and Charron J. noted in Sinclair, at para. 29:
The fact that the police complied with s. 10(b) does not mean that a statement is voluntary under the confessions rule. Conversely, the fact that a statement is made voluntarily does not rule out breach of s. 10(b).
[46] As for the police caution, it operates in the same way. It is one circumstance to consider in the contextual approach to whether a statement was voluntarily made: 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: 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., 2011 ONCA 194, 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”.
[47] Neither a breach of the right to counsel, nor a failure to provide a police caution, inevitably lead to a breach of the right to silence. They are nothing more than factors for consideration in determining whether there was a breach of the right to silence and, in turn, where a statement was given voluntarily.
[48] The accused suggests that in the post-Singh world there is a need for the Crown to establish that the right to counsel and caution were properly given before the court can be satisfied that the right to silence has not been infringed. If this were correct, it would mean that the Crown now bears the onus on s. 10(b) of the Charter in any voluntariness inquiry. Neither Singh nor Sinclair support this position. As above, the s. 10(b) right to counsel and s. 7 right to silence are not the same. Moreover, in Singh the court has been clear that the defence continue to bear the onus under s. 7:
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. See: Singh, at paragraph 37.
[49] While the right to counsel and caution inform the voluntariness assessment, there is no requirement that the Crown prove beyond a reasonable doubt that the right to counsel and caution were given in pristine form before a statement can be found voluntarily.
The Charter Law Applied to the Facts
[50] I find that Mr. Pathmanathan was properly cautioned and given his right to counsel. Cst. Chase did this at the scene of the original arrest on August 28, 2009. As set out above, he testified that he read from the form in the front of his notebook. While his evidence was awkward, he was clear that he read the parts from his notebook that related to the right to counsel and that the part related to not having to say anything in answer to the charge. I am satisfied that this latter comment relates to the caution filed as an exhibit on the voir dire. The form includes both a right to counsel and caution. I am satisfied that both of these things were read to Mr. Pathmanathan.
[51] I am also satisfied that Mr. Pathmanathan availed himself of his right to counsel following his initial arrest. He acknowledges this fact in his interview with Cst. Cole on September 1, 2009.
[52] Moreover, I find that once Mr. Pathmanathan reached 4 District in York Region on September 1, 2009, Sgt. Shaw satisfied himself that the accused did not wish to speak with a lawyer again.
[53] Det. Cole also confirmed with Mr. Pathmanathan that his lawyer was aware that he would be coming to York Region. Mr. Pathmanathan confirmed this fact. The accused also placed great weight on his lawyer throughout the interview, repeatedly suggesting “my lawyer will talk”. In short, he confirmed he had a lawyer, that he had spoken with his lawyer, and that he was aware of his right to silence.
[54] I am satisfied that the Crown has proven the voluntariness of this statement beyond a reasonable doubt. Whether the strictures of s. 10(b) were complied with in their entirety is not the issue. It was open to Mr. Pathmanathan to bring a s. 10(b) Charter application. Had he done this, evidence may have been elicited that demonstrated any number of constitutional failings. On the record as it exists, any such suggestion is purely speculative.
[55] What we do know on this record, is that Mr. Pathmanathan had the benefit of counsel, did not want the further benefit of counsel, and understood that he had a right to remain silent. I am satisfied beyond a reasonable doubt that his statement was voluntary. The September 1, 2009 statement is admissible.
FAIRBURN J
Released: November 24, 2015
COURT FILE NO.: CRIM J (P) 697/13
DATE: 2015 11 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
- and -
JALANI DALEY, JANATHAN KANAGASIVAM, MAJURATHAN BASKARAN, THIRUMAL
KANTHASAMY and SRIMOORTHY PATHMANATHAN
Defence
Voluntariness Ruling
Statement of Srimoorthy Pathmanathan
September 1, 2009
FAIRBURN J
Released: November 24, 2015
[^1]: On November 23, 2015 the Crown replaced a 37-count indictment with a new one, removing 8 conspiracy counts.
[^2]: The defence position on this voir dire first became known during counsel’s submissions. While brining an application to re-open and call more evidence on the Charter issues, upon consideration the Crown decided not to pursue this request.
[^3]: The defence position on this voir dire first became known during counsel’s submissions. While the Crown considered bringing an application to re-open and call more evidence on the Charter issues, upon consideration, the Crown decided not to pursue this request.