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 Majurathan Baskaran, November 18, 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] On August 28, 2009, Mr. Majurathan Baskaran was arrested for possession of stolen property. He was taken into custody and provided a statement. He was eventually released on bail. Mr. Baskaran was re-arrested on November 18, 2009, this time for many more offences. He was again taken into custody and interviewed.
[3] The Crown seeks the admission of both statements. Voluntariness is conceded in respect to the first statement, but not the second. I have a reasonable doubt about the voluntariness of the second statement and find it inadmissible.
The Arrests of Majurathan Baskaran
[4] Mr. Baskaran was initially arrested on August 28, 2009. The police had a building at 130 Melford Drive under surveillance. At around 3:45 p.m. they saw a minivan enter the building’s back parking lot. A white cube truck followed the minivan. The truck backed up to unit 5.
[5] Once the truck pulled up to this location, a takedown was called and the police descended. Cst. Ian Harloff heard police yelling that there were people in the building and so he ran to the front. Once there, he saw Mr. Baskaran and another man enter a BMW. Cst. Harloff initiated a high-risk takedown, meaning that he drew his firearm. With his knowledge about the offences involved in the broader investigation, which included weapons offences, Cst. Harloff considered this situation to be dangerous.
[6] Cst. Harloff’s partner, Cst. Adrian Pannozzo, eventually arrived around the front of the building. He saw both Mr. Baskaran and another man on the ground. Cst. Pannozzo took charge of Mr. Baskaran and arrested him for possession of stolen property. Cst. Pannozzo handcuffed and searched Mr. Baskaran. He provided Mr. Baskaran with his right to counsel and cautioned him. Mr. Baskaran confirmed that he understood what Cst. Pannozzo said to him, and said that he wished to speak with a lawyer. Cst. Pannozzo had no further contact with Mr. Baskaran on that date.
[7] Mr. Baskaran was then arrested a second time on November 18, 2009. Along with Sgt. Derek Meeker, Cst. Harloff went to Mr. Baskaran’s residence at 9:58 a.m. Mr. Baskaran answered the door. He was arrested for robbery and provided with his right to counsel, a caution and secondary caution. When he was asked if he understood, he said, “Yes, I knew you guys were coming”. He confirmed that he wished to speak with a lawyer whose name he provided. He did not have his lawyer’s number. He confirmed that he knew he did not have to “talk”.
[8] Cst. Harloff recalls allowing Mr. Baskaran to put clothes on. He was placed in the back seat of the police cruiser and taken to 21 Division. Sgt. Meeker testified that he did not have a conversation with Mr. Baskaran. The officers did not observe any signs of impairment. Cst. Harloff testified that Mr. Baskaran was cooperative with the police and calm. The officers did not threaten him or promise him anything.
[9] Once at 21 Division, Cst. Harloff passed Mr. Baskaran off to a cells officer. He also left a message with an assistant to the lawyer whose name Mr. Baskaran had provided. He had no further dealings with Mr. Baskaran. Neither Cst. Harloff nor Sgt. Meeker were challenged on the content of the above evidence. They provided their evidence in a clear and concise manner. I accept their evidence as true.
[10] The Crown called three witnesses, who worked in the cells where Mr. Baskaran was detained awaiting his interview: Cst. Michael Murray, Cst. Chris Mandville and Cst. Bikramjit Wander. Each police officer testified about their dealings with Mr. Baskaran.
[11] Cst. Murray testified that Mr. Baskaran was brought into the cell area at 10:47 a.m. Cst. Murray called Mr. Baskaran’s lawyer at 10:55 a.m. and left a message. This is the same lawyer as the one Cst. Harloff called. Cst. Murray, Cst. Mandville and Cst. Wander each checked on Mr. Baskaran in about half-hour increments over the next number of hours. Mr. Baskaran confirmed to the officers that he had no medical conditions and that he did not require medication. He was provided with a meal at 2:30 p.m. The officers testified that they did not promise him anything or threaten him in any way. Nothing to the contrary was suggested to the officers in cross-examination. I am satisfied that there are no voluntariness concerns arising from the accused’s time in the cells.
Positions of the Parties
[12] Mr. Sone, on behalf of the Crown, argues that they have proven the voluntariness of the statement beyond a reasonable doubt. He submits that while Cst. Pannozzo used a number of techniques during the interview in an attempt to elicit a statement from Mr. Baskaran, none crossed the line and rendered the statement involuntary. For instance, while Cst. Pannozzo invented a story about having made a mistake when he hit his little girl in response to her leaving her bike in the driveway, his story was a strategy meant to encourage the accused to admit to his mistakes. The story was not intended to be threatening. Mr. Sone submits that there is no evidence to suggest that Mr. Baskaran took the story as a threat.
[13] While Mr. Sone acknowledges that the officer spoke in a persistent and accusatorial way through much of the interview, he asserts that there was nothing inherently objectionable about the officer having done so. The officer did not threaten Mr. Baskaran or promise him anything in return for a statement. Mr. Sone argues that Mr. Baskaran was not the subject of oppression. Crown counsel submits that his will was not overborne. The accused made conscious decisions about when to speak. Indeed, as Crown counsel observes, Mr. Baskaran’s decisions to speak were so conscious that when he provided information to the police about knowing certain people, and the officer commented that they were making “progress”, Mr. Baskaran suggested that he had told this information to the police before. He was mistaken.
[14] Mr. Vaughan, on behalf of Mr. Baskaran, asserts that the interview crossed the line and resulted in an involuntary statement. He argues that Mr. Baskaran was the subject of threats and police oppression. The officer used an inappropriate tone, a great deal of profanity, and repeatedly interrupted the accused when he tried to speak. Mr. Vaughn also suggests that Cst. Pannozzo got too physically close to the accused.
[15] Mr. Vaughan also argues that his client was inappropriately belittled during the interview. His client was called “stupid” and “silly”. His lawyer was also belittled and the officer should not have commented on the cost of the legal proceedings. Counsel submits that all of these circumstances create at least a doubt about the voluntariness of the statement.
The Law of Voluntariness
[16] The Crown must prove the voluntariness of an accused’s statement beyond a reasonable doubt. This threshold for admissibility stands as one of the very few exceptions to the general rule that admissibility questions are to be determined on a balance of probabilities: R. v. Evans, [1993] 3 S.C.R. 653, at para. 25 [Evans]; R. v. B.(K.G.), [1993] 1 S.C.R. 740, at paras. 112-122. The higher admissibility threshold placed on questions of voluntariness is designed to fend off against the admission of unreliable statements and or those that serve to harm the reputation of justice because unacceptable tricks have been used.
[17] The voluntariness rule itself attempts to strike a balance between the interests of the accused in maintaining a choice whether to speak, and society, by protecting the societal interest in the effective investigation of crime. Maintaining a choice about whether to speak protects against unreliable confessions. In R. v. Oickle, 2000 SCC 38, at para. 33 [Oickle], 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 [Singh]; R. v. Hebert, [1990] 2 SCR 151, at p. 180 [Hebert].
[18] 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. As noted in Spencer, “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”: Spencer, at para. 15.
[19] 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.
[20] As for oppression, it has the potential to produce false confessions: Oickle, at para. 58. Oppression can result from the police creating conditions so distasteful that there is a risk that the accused will make a “stress-compliant confession” to escape the conditions. Alternatively, as set out in Oickle, oppressive circumstances can also run the risk that the suspect’s will could be overborne “to the point that he or she comes to doubt his or her own memory” and “believes the relentless accusations made by the police, and gives an induced confession”, at para. 58.
[21] While not an exhaustive list, the types of things to consider when determining whether the circumstances surrounding the taking of a statement have been oppressive include a lack of food, water, clothing, sleep, medical attention, counsel, aggressive questioning, and intimidating and prolonged questioning. See, Oickle, paras. 59-60; R. v. Hoilett (1999), 121 O.A.C. 391; R. v. N.L., [2009] O.J. No. 1902, at para. 30.
[22] In terms of an operating mind, 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] S.C.J. No. 69, at para. 49. There is no suggestion here that Mr. Baskaran did not have an operating mind. The videotape reveals an operating mind.
[23] Ultimately, the trial judge must take a contextual approach and consider the entire statement: Oickle, at paras. 54, 57; Spencer, at paras. 13-15, 19. One of the circumstances to consider is whether the individual has received a caution: R. v. E.B., 2011 ONCA 194, at para. 88; 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 entire context.
[24] There is nothing wrong with police persistence and persuasion in obtaining a statement. This does not offend the voluntariness rule or the constitutional right to silence: Hebert, at paras. 73, 110, 130. The law allows police officers to offer inducements in an effort to convince an accused to speak. As noted in Oickle, “[f]ew suspects will spontaneously confess to a crime”: at para. 57. The police are permitted to encourage, persuade and even convince a suspect to speak. They can even try to persuade a suspect that it would be in his or her interests to confess. As noted in Singh, while individuals have a right to remain silent, they do not have a right not to be spoken to by the police: Singh, at para. 28.
[25] 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 a trick in this case.
The Law Applied to the Facts
[26] From the moment of his arrest to his delivery to the interview room, I find that Mr. Baskaran was treated in a respectful and professional manner. The accused was provided with his right to counsel. He also received a caution and secondary caution at the time of his arrest. Mr. Baskaran commented that he understood his rights and that he knew he did not have to say anything. There was nothing at the scene of the arrest that would have impacted the voluntariness of his subsequent statement.
[27] As above, I also find that nothing in the holding cell area could have adversely impacted the voluntariness of his statement. Mr. Baskaran was treated well in the holding cell area.
[28] This leaves the context of the actual interview to be assessed. With the exception of his call to counsel, everything in the interview room was videotaped. The video was shut off when he spoke to counsel. I had the advantage of reviewing the videotape and listening to Officer Pannozzo’s evidence. Nothing in the interview, standing on its own, causes me concern about the voluntariness of Mr. Baskaran’s statement. However, taken together, I am left with a reasonable doubt about voluntariness.
[29] The video reveals an accused individual who is not timid. This is evident from the very beginning when he enters the interview room. While sitting alone, Mr. Baskaran picks up a phone that is located on the desk. Apparently unable to get a dial tone, he checks the phone cord.
[30] When Cst. Pannozzo enters the interview room, he provides Mr. Baskaran with his right to counsel, as well as a caution and secondary caution. Cst. Pannozzo reinforces with Mr. Baskaran that he need not say anything and if he decides to speak, it will be “because you want to and only because you want to”. Mr. Baskaran expresses an understanding about his rights and asks for the same lawyer for whom two messages had already been left earlier in the day, just prior to 11:00 a.m. It was now about 4:40 p.m.[^1]
[31] When the officer leaves the room in attempt to contact Mr. Baskaran’s chosen lawyer, Mr. Baskaran gets up, summons another officer and asks if the phone in the interview room could be hooked up. The officer tells him that he cannot make outgoing calls, but that Cst. Pannozzo will be back. Despite this, Mr. Baskaran returns to the phone and lifts the receiver again.
[32] Cst. Pannozzo then returns and tells Mr. Baskaran that he left a message with his lawyer’s assistant. This was the third message left for the accused’s chosen lawyer. The officer asks Mr. Baskaran if he would like to avail himself of duty counsel. Mr. Baskaran eventually says he would like to speak with duty counsel and this was facilitated.
[33] At this stage of the interview, Mr. Baskaran’s actions and comments reveal an individual who is not intimidated by his environment. I find that he understood and was afforded his right to counsel.
[34] After Mr. Baskaran consulted with counsel, the tone of the interview changed quickly. Defence counsel is right to suggest that the officer repeatedly interrupted Mr. Baskaran during the interview. At times Cst. Pannozzo’s voice is raised and animated. The officer uses numerous swear words. At another point, when the accused tries to explain why his phone number may have been registering in certain locations, the officer said that he sounded “silly” and “stupid”.
[35] Despite the tone of much of the interview, on its own, this does not cause me concern. It was open to the officer to use an aggressive tone. Depending on the circumstances faced, a loud and even aggressive tone may be entirely appropriate.
[36] The difficulty, though, is that the tone combines with a number of other factors, the constellation of which cause me concern for voluntariness. After the accused spoke with counsel, the officer became physically imposing from time-to-time. As an interview technique, he moved his chair closer to Mr. Baskaran on a few occasions.
[37] Again, while standing on their own, tone and physical proximity are not problematic, these factors must be assessed against the fact that the officer repeatedly places his foot up onto a small table in the interview room. His foot is pointed toward the accused. To be clear, there is nothing about this posture that is, standing on its own, problematic. When combining all of these factors, though, I start to become concerned about the context of the interview and what Mr. Baskaran would have taken from it. This is particularly true given that it had been made clear to Mr. Baskaran that the interview may continue all night, until he was taken to court the next morning. This would have been well over 12 hours later.
[38] In the end, what tips the balance into a reasonable doubt about voluntariness for me, has to do with the comments about legal counsel during the interview. Close to the outset of the interview, shortly after Mr. Baskaran spoke to duty counsel, he said that his lawyer had told him to stay silent. The following exchange occurred:
Baskaran: I just don’t want say nothing, sir, because my lawyer said not to say nothing…
Pannozzo: Okay, so then what am I here for? You’re asking me these questions. I’m trying to sort out your life. This isn’t a joke. Your lawyer says don’t talk to me. We already know your lawyer’s gonna say don’t talk to me. ‘Cause your lawyer isn’t sitting in the hot seat, your lawyer doesn’t have all this evidence against you, your lawyer doesn’t care whether- what happens to you in two to three years from now. Your lawyer doe-, doesn’t know all the stuff that’s been obtained through these cell phone records. [emphasis added]
[39] Legal counsel, and the amount charged for legal representation, came in for comment later in the interview, after Mr. Baskaran suggested that he was not involved in the offences. He suggested that his lawyer would find out the “truth” and he just needed time. The following exchange occurred:
Pannozzo: Let me ask you a question. You keep talking about your lawyer. Do you have any idea what a bail hearing’s worth?
Baskaran: Yea.
Pannozzo: How much?
Baskaran: About 1500.
Pannozzo: Okay. The last bail hearing you had, who represented you?
Baskaran: Some different lawyer my friend got me.
Pannozzo: Okay. Was it [lawyer’s name]?
Baskaran: No.
Pannozzo: Okay. Some other lawyer?
Baskaran: Yeah.
Pannozzo: Did you pay him?
Baskaran: Yea.
Pannozzo: How much?
Baskaran: It was about fif -, 1200.
Pannozzo: That hurt. That hurt. $1200. Right?
Baskaran: Yeah.
Pannozzo: How much money you got in your bank account?
Baskaran: Just a few hundred dollars.
Pannozzo: Okay. Um, how much do you think a bail hearing’s gonna cost to get you out on all these charges?
Baskaran: Twelve hundred, fifteen hundred, two grand.
Pannozzo: About two grand. We haven’t even had a trial yet.
Baskaran: Mm-hmm.
Pannozzo: We haven’t had, had - , like we haven’t even touched the surface yet.
Baskaran: How long is trial gonna take?
Pannozzo: I have no idea. It could take a-, a number of months before you get a date and then start a trial and all that shit, right? It could take a number of months. I’m not sure. I can tell you that it’s gonna take a pile of money. That I can rest assure. It’ll take a pile of money. But I’m not here asking for money.
Baskaran: I know. I understand.
Pannozzo: I don’t want your money. Okay? I need a break.
The interview ended shortly after this exchange.
[40] The comments set out above could impact on an accused’s confidence in the legal advice given; legal advice that no doubt included the need to stay silent. Suggesting that Mr. Baskaran should speak because his lawyer did not care what happened to him in “two to three years” was not appropriate. Nor was it appropriate to delve into matters of solicitor-client privilege, including how much Mr. Baskaran paid for his earlier bail hearing. I find that these comments could have shaken whatever pre-existing confidence that the accused may have had in the legal advice he had been provided. This fact can have both constitutional and voluntariness dimensions.
[41] In R. v. Burlingham, [1995] 2 S.C.R. 206, at para. 14, Iacobucci J. found that “s. 10(b) specifically prohibits the police, as they did in this case, from belittling an accused's lawyer with the express goal or effect of undermining the accused's confidence in and relationship with defence counsel”. In a similar vein, Iacobucci J. held in R. v. Broyles, [1991] 3 S.C.R. 595, at para. 59 that the “right to counsel would be meaningless if the authorities were entitled to undermine the confidence of the accused in his counsel in order to extract a confession”.
[42] While I find that the officer was not intending to belittle the lawyer in this case, his advice may well have had this effect. More importantly, it may have had the effect of causing Mr. Baskaran to doubt the legal advice that would have almost certainly included staying silent. Along with all of the other facts noted above, this causes me to doubt the voluntariness of his statement.
[43] I am mindful of the fact that Mr. Baskaran did not testify and I do not have the benefit of his thoughts about how he perceived the interview and whether he feels that it impacted his decision to speak. Nonetheless, the voluntariness test is an objective one: Singh, at paragraph 26. In the end, and bearing in mind the entire context of the interview, including the comments about counsel, I have a reasonable doubt about voluntariness.
Conclusion
[44] The November 18, 2009 statement is excluded. In accordance with the concession of counsel, I find the August 28, 2009 statement voluntary beyond a reasonable doubt and admissible in this proceeding.
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 Majurathan Baskaran, November 18, 2009
FAIRBURN J
Released: November 22, 2015
[^1]: While the transcript of the interview suggests it was 5:40 p.m., Cst. Pannozzo testified that the clock captured on the videotape was ahead by an hour.