ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-15-0004
DATE: 20151218

BETWEEN:

HER MAJESTY THE QUEEN
Applicant

– and –

CODY JOHNSON
Respondent

E. Carlton, for the Applicant Crown

J. Herbert, for the Respondent

HEARD: June 15, 16, 18 & 19, 2015

REASONS FOR JUDGMENT – VOLUNTARINESS OF ACCUSED’S
STATEMENTS TO PERSONS IN AUTHORITY

McISAAC J.

INTRODUCTION

[1] The Crown sought a ruling as to two statements of the accused made to the OPP on the day of his arrest. The first statement related to a brief utterance made immediately upon his arrest and the second involved a lengthy custodial interrogation of some one and one-half hours’ duration conducted at the police detachment eight hours later. At the time, I ruled the initial utterance admissible but refused to admit the lengthy interrogation. At the time, I indicated that formal reasons for those dispositions would follow in due course. These are those reasons.

BACKGROUND

[2] On the early morning hours of February 12, 2014, two commercial properties in Huntsville were entered. A Bobcat “skid-steer” was removed from a compound that was normally locked and a trailer was removed from another premises in the same vicinity. The owners of the Bobcat discovered the unlawful entry and theft and called the police when they encountered the accused and another individual in a truck that was towing the stolen trailer which was, in turn, carrying their “skid-steer”. Several officers attended and set up a containment area. Mr. Johnson was located south of the civilian encounter and arrested because he matched the description provided by the Bobcat owners. At this time, the accused is alleged to have said “I thought those guys were the bad guys.” I assume this was a reference to the owners who had phoned for the police.

[3] After his arrest, Mr. Johnson was taken to the local OPP detachment where he was lodged and subsequently allowed to speak to duty counsel. His overalls and boots were seized for evidence but he was only given a sheet to wrap around himself. He had been allowed to keep his T-shirt but was not wearing any underwear under his overalls. At the time of his arrest, he was carrying a “fanny-pack” over his shoulder and this contained some empty prescription bottles for Oxycodin and Percocet.

[4] As I have already noted, the interrogation lasted some one and one-half hours. It was videotaped and contains not only a verbatim record of the exchanges between Mr. Johnson and Detective Constable Turner but also captures the participants’ tone throughout the encounter. For the most part, I am satisfied that this officer conducted a fair interview despite the sometimes aggressive nature of the questioning. Despite being challenged on several occasions by the officer, Mr. Johnson steadfastly maintained his decision not to disclose the identity of his alleged associates. He did, however, suggest that someone unknown had stolen his truck which was subsequently used in the two thefts but which he and an associate had interrupted before being intercepted by the owners of the Bobcat. Detective Constable Turner clearly did not believe this story. Most importantly, Mr. Johnson maintained from the outset of the interview and throughout the process that he was addicted to pain-killers and that he was suffering from the symptoms of withdrawal to the extent of fearing that he would defecate himself. He pleaded to get some of his pills that may be loose in the “fanny-pack” or, alternatively, to be taken to the hospital so his prescriptions could be refilled.

POSITIONS OF THE PARTIES

[5] Mr. Johnson suggests that at the time he was arrested, he was kicked by Constable Wright. This officer denies this allegation but admits that he ordered the accused to the ground because he was refusing his directions. None of the other police personnel in the vicinity observed any kicking action on the part of Constable Wright.

[6] In relation to the lengthy interrogation at the detachment, the accused argues that the voluntariness of this exchange is vitiated by the refusal of Detective Constable Turner to immediately address his claims of drug withdrawal. This amounted to a form of improper promise or, alternatively, created an atmosphere of oppression. The Crown, on the other hand, maintains that Mr. Johnson was quite content to defer the issue of his claimed drug withdrawal until the interview was concluded.

LEGAL PRINCIPLES

[7] All of the principles relating to the vexing issue of voluntariness were reviewed in R. v. Oickle 2000 SCC 38, [2000] 2 SCR 3. Clearly, physical violence to the person of a suspect would in almost all circumstances vitiate the voluntariness of any utterance following such abuse: see para. 53. In relation to any claim of a threat or a promise, the most important consideration is to look for a quid pro quo offer by the interrogators: see para. 57. Turning to the issue of oppression, if the authorities have created or taken advantage of distasteful conditions affecting a suspect, these can lead to the making of a stress-compliant confession: see para. 58.

ANALYSIS

[8] If I harboured a reasonable doubt as to the accused’s claim that he was kicked by Constable Wright, this would, no doubt, vitiate the voluntariness of the utterance that shortly followed it. However, I am persuaded that no such event ever occurred. I accept the denial of Constable Wright which is corroborated by his fellow officers. I find that Mr. Johnson was refusing to follow police directions and that some force was required to put him to the ground. However, I reject his claim that he was subjected to any form of gratuitous violence. The balance of the evidence suggests that this was a clearly voluntary utterance of a spontaneous nature that was a product of Mr. Johnson’s own choice. It was not infected by any improper conduct on the part of the authorities and will be admitted at trial.

[9] Turning to the formal interview, although Mr. Johnson was able to resist the probing nature of Detective Constable Turner’s questions during several points of this interrogation, I am not persuaded that his participation was voluntary in the sense articulated in R. v. Oickle, supra. Firstly, the refusal to address his claim of drug withdrawal could very well have caused him to co-operate in hopes that it would eventually be addressed. In my view, this is a clear “quid pro quo” which negatives the voluntariness of his responses.

[10] In addition to the circumstance of his drug withdrawal, I also am concerned about the fact that Mr. Johnson was only clothed in a sheet when interviewed. This would challenge the personal dignity of anyone in these circumstances and contributes to the overall atmosphere of oppression that prevailed throughout this interview. The accused appears exhausted and sick on the videotape and he claims that he is concerned he will defecate himself on several occasions. Given the totality of these circumstances, I have at least a reasonable doubt as to the voluntariness of this lengthy exchange. In the result, it will not be admitted at trial.

McISAAC J.

Released: December 18, 2015