R. v. SHEARER, 2015 ONSC 983
COURT FILE NO.: 13309/13
DATE: 2015/02/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICHARD THOMAS SHEARER
Defendant
D. Slessor & L.A. Turner, for the Crown
C. Avery, for the Defendant
HEARD: February 2,3,4 & 5/ 2015
Justice B. A. Glass
There is An Order Banning Publication of this Motion Until the Jury Has Commenced Their Deliberations
Crown Application to Tender a Statement of the Defendant as Voluntary
Introduction
[1] Mr. Shearer faces a first degree murder charge flowing from the death of Charles Bath in August 2012. He was arrested by Durham Regional Police Service and transported to the police station in Oshawa where he was processed, photographed, questioned and held in custody on August 19th.
[2] At one point, Mr. Shearer asked to speak to Detective Bird, who worked out of a Durham Regional Police detachment in the area of his residence in the Beaverton area. The Defendant spoke with his lawyer prior to Detective Bird arriving in Oshawa.
[3] Detective Bird had been conducting some of the investigative work and had about a one-hour drive to get to Oshawa.
[4] The Crown presented evidence that the Defendant was cautioned and provided with a Charter notice that he was charged with a homicide and had the right to consult a lawyer. He told the homicide officer that he did not want to speak with his lawyer. He wanted to speak with Detective Bird. The homicide officer, Detective Darren Short, encouraged him to speak with a lawyer, but Mr. Shearer did not want to do so.
[5] Prior to Detective Bird arriving, the Defendant did speak with his lawyer, John Adamson.
[6] While in the holding cells, Mr. Shearer was clothed in a white jump suit because all his clothing had been seized by the identification officers. This suit is colloquially called a bunny suit.
[7] The Defendant was with the police for several hours. Until Detective Bird arrived, he was fed standard food and drink supplies to prisoners, granola bars and fruit juice.
[8] He suffers from Hodgkin’s Disease, a form of cancer, and had an open wound about the size of a golf ball. When arrested, he brought to the police station some but not all of his medication.
[9] Mr. Shearer was taken to an interview room when Detective Bird arrived. He told the officer that he was very cold. This is a common complaint from prisoners according to Constable Scott who was the acting Sergeant for booking when Mr. Shearer was brought to the Oshawa police station.
[10] After Detective Bird became aware that the Defendant had not been fed, he arranged to get him pizza. Mr. Shearer ate about 1 ½ pieces of pizza. He also had several cigarettes supplied by the officer.
[11] At the commencement of his meeting with Detective Bird, the Defendant said he did not want to say any comments to the officer. The video-recorded interview lasted over two hours. On several occasions, the accused stated that he did not want to speak to the Detective and that he had spoken to Mr. Adamson.
The Position of the Crown
[12] The Crown position is that Mr. Shearer had been properly cautioned and advised of his Charter rights to counsel and what his charge was. The homicide detective had tried to get him to speak with his lawyer. He was provided food and drink in the cells and later pizza as well as cigarettes by Detective Bird. The officer was wearing a short sleeve shirt and did not feel cold. The same with Detective Short. Any comments made by Detective Bird were not oppressive and did not amount to an inducement or threat to obtain any statement from Mr. Shearer.
The Position of the Defence
[13] Mr. Avery for Mr. Shearer submits that the whole atmosphere from the time he was taken into police custody was oppressive. Here, the court has a cancer patient who is hauled off to Oshawa with some of his medication wearing underwear, a ball cap and a pair of shorts only. No shoes or shirt. When paraded into the booking area in Oshawa, the accused in the public open area of the booking section is photographed and told to remove his cap and shorts leaving him standing in his underwear with a female police officer sitting looking at him. Had another woman come through this area, she would have seen him in a state of undress. He was removed to a room to take off his underwear, but the door to that room was open partially again so that there was a chance for people to see him in a naked state. Once nude, Mr. Shearer was given a white jump suit, called a bunny suit and brought out to the open area. There were times when Mr. Shearer asked for food.
Issues
[14] What must the Crown prove for the admission of confessions of Mr. Shearer into evidence?
[15] What amounts to oppression in this case?
How To Approach the Issues
[16] The Crown maintains that the foundation for admission of a statement by a person is that it be proven to be a voluntary statement beyond a reasonable doubt. Voluntariness is proved should there be circumstances that demonstrate that Mr. Shearer spoke to persons in authority free of threats, promises, oppression, absence of excessive police trickery and made with an operating mind.
[17] At the bottom of the Defence submissions is the point that the circumstances were significant enough to find that Mr. Shearer was deprived of the ability to make a choice whether or not to speak. This is akin to the ruling by the Supreme Court of Canada in R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48 at paragraph 47 where the Court noted that police persistence may open an argument that a statement is not the result of a free will to speak with persons in authority. The icing on the cake might be having the Defendant reduced to a total state of undress in an open area with a female officer present or in the vicinity.
[18] The Crown position is that the Defendant was treated with respect, was fed and made some comments that should be found to be acceptable as in R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38, R. v. Singh (supra) so that the court ought to conclude that the Crown has proven that the statement is voluntary beyond a reasonable doubt. This fact situation did not fall within the extreme circumstances found in R. v. Hoilett (1999), 1999 3740 (ON CA), 136 C.C.C. (3d) 449 from the Ontario Court of Appeal where the Defendant hoped to receive clothing if he spoke with police. The Crown submits that the strip search conducted here meets the guidelines set out in R. v. Golden at 2001 SCC 83, [2001] S.C.J. No. 81 from the Supreme Court of Canada.
[19] On the other side of the coin, the Defendant acknowledges that the officers involved were persons in authority who went through the motions of providing a caution about speaking to persons in authority and his Charter right to consult with his lawyer, but there is a major failure because in effect the efforts of the persons in authority amounted to paying lip service. By doing so, the investigating police service effectively created an oppressive situation that overpowered Mr. Shearer so as to raise a reasonable doubt whether his statements were voluntary.
The Crown Outline
[20] On the Crown side of the argument is Mr. Slessor emphasizing that this was not excessive police conduct. As stated in the Singh decision (supra) from the Supreme Court, police do not have to stop talking simply because a person says he or she does not want to speak. The demeanour of the officer was low key and without pressure upon the accused man. In fact, Mr. Shearer did receive some food. Although the quantity was not akin to a banquet, he did receive food and drink and then pizza when Detective Bird spoke with him. When Detective Short spoke with him in the holding cell area, he made arrangements for clothing looking ahead to a video-recorded interview in which the optics of an in-custody person wearing a bunny suit would be a poor viewing. Another officer had testified that clothing was not supplied in the holding cell area for inmates. That explains why the white jump suit is the type of clothing provided.
[21] Detective Short had urged Richard Shearer to speak with a lawyer at a time when the Defendant was stating that he did not want to speak to a lawyer. It is acknowledged that in fact he spoke with John Adamson, his lawyer.
[22] Just because a lawyer might advise a client that he does not have to talk to the police and even further not to make a statement to the police, the police do not have to stop talking. They can continue conveying information to the person and inviting comments from the individual.
An Outline of the Scenario That Mr. Avery Has Presented
[23] First of all, the Defendant is a cancer patient with Hodgkin’s Disease. He had an open wound on his left hip about the size of a golf ball. This area required treatment twice daily. Pain reduction medication was required. When the police officers arrived at his residence, he was tending to this open sore.
[24] He was arrested and removed wearing underwear, shorts and a ball cap. He was not given an opportunity to get a shirt or other clothing or footwear. This was on August 19th, 2012. The officers transported Mr. Shearer to 17 Division for Durham Regional Police Service in Oshawa. There, he was taken to the booking Sergeant. His personal and medication information was taken.
[25] Identification officers arrived wearing white jump suits. They proceeded to take photographs of the Defendant in the open area of the booking section. Then, he was directed to remove his shorts in this open area. This was done with a female officer present looking in the direction of the Defendant. At one point, the female officer appeared to turn to her left perhaps looking away from Mr. Shearer. He was taken over to a room in the booking area, taken inside and directed to remove his underwear while the photographing officer took photographs of the Defendant. The door to this room was open partially with the photographer standing at that door and partially in the booking area. There were police officers in the booking area. Although the door was not open completely, there is some possibility for others to see Mr. Shearer in a state of undress. This could include the female officer or any female person who came through the booking area. After Detective Duxbury finished taking photographs of the naked Defendant, the officers provided him with a white jump suit that is referenced by the officers as a bunny suit.
[26] After putting on the bunny suit, he was taken to holding cell #26. While at the holding cell area, Richard Shearer received some medical attention from two female paramedics. He was provided with a nutrition bar and fruit juice twice. While in cell #26, Mr. Shearer asked to speak to his lawyer, John Adamson, but that was not done immediately. Sometime between this booking and photographing activity and when Detective Bird arrived, he spoke with his lawyer. He asked to speak to Detective Bird, but he spoke with his lawyer before Detective Bird arrived. He complained about feeling cold in this holding cell. Officer William Scott had been the acting booking Sergeant when Mr. Shearer was brought to 17 Division. Officer Scott acknowledged that they did not have blankets for prisoners nor clothing and that the holding cell area was a source of cold temperature complaints by prisoners. While in the holding cell area, he was provided a police caution regarding making any statement to persons in authority and told of his Charter right to speak to a lawyer.
[27] Detective Bird commenced an interview with Mr. Shearer later. When the Defendant entered the interview room, he immediately complained about the cold. He told the Detective that he did not want to say any comments. He had spoken to a lawyer. The officer mentioned that he had come from his detachment because Mr. Shearer had asked him to come to speak to him. He was cold and wanted to return to the cell area. The officer did not return him, but rather continued talking and attempting to encourage the Defendant to talk.
[28] The interview might fall within the considerations in Oickle and Singh (supra), but if the police interviewer goes overboard, the results may not be the product of an operating mind. Rather, any comment made by Mr. Shearer might be considered to be involuntary. The most extreme actions involved the strip search in the booking area. With a female officer present facing the direction of the Defendant as he was directed to remove shorts and stand in his underwear in the open area coupled with removing his underwear completely in the adjoining room with the door open so that persons outside the room might see a naked person within that room is submitted by Mr. Avery to be excessive. These activities occurred prior to Detective Bird had his interview with the Defendant.
[29] Being stripped down, being cold to the knowledge of the police service, receiving very little food, references to the mother and son of the Defendant being in jeopardy of receiving charges all couple together the create an oppressive state for Mr. Shearer.
[30] Mr. Avery submits that this oppressive scenario removes Mr. Shearer from acting with a clear mind and willingly speaking to the officers. No means no. The Defendant said no or that he did not want to speak to the police many times. The officer ignored him and pressed forward as if he had said nothing. Comments uttered by Ricky Shearer are in the category of words pried from his lips rather than being voluntarily expressed.
What is Not At Play with This Application
[31] The issue of the admissibility of any comment made by the Defendant is not affected by inducements or threats to Mr. Shearer. Nor is trickery of concern. The focus is on all activities and whether or not they are oppressive.
Analysis
[32] There are facts to consider that the circumstances became oppressive. I conclude that they have reached a stage of removing any comments made by Mr. Shearer from being voluntary. When he was arrested at his residence, he was cautioned about making statements to persons in authority, and he was informed of his right to get a lawyer. Initially, he chose not to speak to a lawyer. He was transported to 17 Division of the Durham Regional Police Service in Oshawa wearing shorts, underwear and a baseball cap. This was on August 19, 2012. One might think that the arresting officers should have encouraged the Defendant to wear some form of footwear and a shirt; however, this was summer.
[33] When Mr. Shearer arrived at 17 Division, he was booked at the booking area of the police station. Inquiries were made with respect to his health. He had brought some of his medications after advising the officers of his medical issues. The officers appear to have realized that the Defendant was not exaggerating on his medical conditions.
[34] As the accused man was being entered into the police system in Oshawa, he was photographed by the identification officers who took photographs of him. During this phase, he was directed to remove his shorts and baseball cap while standing in the open booking area where a female officer was looking in his direction. When the officers wanted him to remove his underwear as they continued to photograph him, they took him to a separate room where they kept the door partly open. Had other people, including officers and others, passed through this area, it is conceivable to see into this room where he was standing naked being photographed by officers. This strip search and photographing was done improperly.
[35] As I asked during the voir dire, had the in-custody person been a female person who was told to undress to the underwear stage in the presence of a male officer, there would have been a major complaint for the lack of disrespect to the person. Further, had a female prisoner been taken to the adjacent room and directed to remove the underwear for the purpose of taking photographs without clothing being worn, with the door open partly and with a male officer in the vicinity with a possibility of seeing her in a state of undress, again I would expect a major complaint would have been raised. Well, it should be no different for a male prisoner. And with Mr. Shearer, he had a wound from a cancerous condition for which he required medical treatment.
[36] This application is not a Charter application; however, it focuses on whether or not there is evidence of oppression regarding comments that Mr. Shearer made to the police. The strip search in an open area of the police station with a female officer present does create an intimidating and embarrassing situation for a person in Mr. Shearer’s position. The question might be whether such a circumstance takes his situation above and beyond appropriate bounds.
[37] He was not fed a great deal of food, but he was fed what is customarily fed inmates in Durham Police custody, i.e. granular bars and fruit juice. Such food sources are not meant to replace full meals but rather to feed a person during a few hours.
[38] Detective Bird added to the food supply when he heard sounds from the stomach of Mr. Shearer. He arranged to get him some pizza, water, and also some cigs. He brought Mr. Shearer 2 pieces of pizza. I noticed on the video-recording that the Defendant ate one piece of pizza completely and about one half of the other piece. It appears to me that Mr. Shearer ate as much as he wanted. He did not appear to be expressing a desire for more food.
[39] Detective Bird also provided cigarettes to Mr. Shearer.
[40] With both the pizza and the cigarettes supply, Detective Bird made a clear statement that he was not providing these items for the purpose of encouraging Mr. Shearer to speak to him. I point out that this application does not involve any allegation that the police were providing any material to induce the Defendant to speak to the officer.
[41] Although Mr. Shearer expressed his discomfort about being cold when he entered the interview room with Detective Bird, the officer wore a short-sleeved shirt and said he did not feel cold. In fairness to Mr. Shearer, another officer testified that complaints of cold from the air conditioning in the holding cell area were common.
[42] The cold issue appears to have been significant for prisoners in general and in particular for Mr. Shearer who is a cancer patient. He repeatedly mentioned the cold and wanted to leave the interview room. On at least 11 occasions when in the interview room with Detective Bird, Mr. Shearer said he was freezing. He told the officer that the officers at booking took all his clothes earlier as well.
[43] When Mr. Shearer entered the interview room, he told Detective Bird that he did not want to speak with him. The officer had come from a distance to speak with Mr. Shearer as a result of the accused man wanting to talk with him. The fly in the ointment is that between first asking to speak to Detective Bird and when the officer arrived, Mr. Shearer had spoken to his lawyer and no longer wanted to speak to Detective Bird or any officer.
[44] Detective Bird did not take this announcement that the accused did not want to speak with him as the end of any meeting with the Defendant. He explained that he had travelled for more than an hour and that he wanted to provide some information to the Defendant. He discussed some of facts surrounding the death of Charles Bath whom he confirmed was deceased. The officer knew that the police had spoken to several people who had seen some activity between the Defendant and the deceased. Detective Bird told Mr. Shearer that he knew officers had spoken to his mother and son whom he suggested were providing inaccurate information. Officer Bird commented that they could get in trouble if they were misleading the police and that Mr. Shearer would not want to draw them into trouble with him.
[45] Throughout the interview, the Defendant would state that he did not want to say any comment to the officer. Sometimes, he sat or lay on the floor. At others, he sat on the floor and rested his head on a chair seat. Often, he ignored Detective Bird while at other times he said a few words. The Crown seeks to be able to use the accused’s comments in cross-examination should he testify at his trial.
[46] The interview is recorded from after 11 pm on August 19th and after 1 am on August 20th. Mr. Shearer had been arrested in the early afternoon of August 19th before being transported to Oshawa. One might conclude that a cancer patient might be tired by the midnight time when he was talking with Detective Bird. At times, he sat on the floor and lay on the floor as well as rested his head on a chair in the interview room while appearing to sleep or pay little attention to Detective Bird.
[47] With this passage of time with a person who is a Hodgkin’s Disease patient coupled with being cold, being strip searched in the presence of a female officer, being given little food throughout the time in custody along with an officer continuing to ask questions and talk was an accumulation of circumstances that might overwhelm a person. The video recording of the interview shows Mr. Shearer laying on the floor of the interview room or having his head on a chair not in an alert conscious state. Such observation draws one to question how the Defendant’s comments are emanating from an operating mind in a non-oppressive interview. These circumstances are pieces of a puzzle that accumulate with each other. One might conclude that oppression is established.
[48] Within the analysis of the Oickle and Singh decisions (supra), the police are not required to stop talking to a person in custody simply because the person does not want to talk with the police; however, if a continuation of such police conduct results in reducing the free thinking mind of the person so that the individual loses the will to be silent, the words spoken by Mr. Shearer might lose their usefulness.
[49] Oickle (supra) had noted that the operating mind doctrine only requires that a person knows what he is saying and that his words may be to his detriment.
[50] The Hoilett decision from the Ontario Court of Appeal (supra) dealt with a prisoner who was stripped naked and left for a time to sleep on a cold metal bunk. Those circumstances were found to be oppressive and led to a determination that the statement there was not voluntary.
[51] Although the strip search of Richard Shearer was conducted several hours before his meeting with Detective Bird, the Defendant mentioned all his clothes being taken when he was booked. This was brought to Detective Bird’s attention during his interview.
[52] I think that the rules laid out in R. v. Golden (supra) at paragraph 101 of that decision Supreme Court of Canada are important to list here:
Can the strip search be concluded at the police station and, if not, why not?
Will the strip search be conducted in a manner that ensures the health and safety of all involved?
Will the strip search be authorized by a police officer acting in a supervisory capacity?
Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
What is the minimum force necessary to conduct the strip search?
Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?
Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?
If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the opportunity of removing the object himself or of having the object removed by a trained medical professional?
Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?
[53] The Golden rules (supra) were not followed here. No clearance with a supervising officer was obtained. He was stripped to full nakedness. A female officer was present when Mr. Shearer was unclothed to his underwear. When he was told to remove the underwear, he was in an adjoining room, but the door was open so that there was some chance of another person viewing the Defendant in a state of complete undress. Those circumstances are serious. They obviously had some impact on the defendant because he mentioned having to give up all his clothing.
[54] With Mr. Shearer, the Defendant being viewed on the video-recordings appears to me to have been treated improperly. I find that oppression is established so that his comments are not voluntary. The Crown has not proven the comments to have been expressed voluntarily beyond a reasonable doubt.
Conclusion
[55] Not having achieved such a conclusion, the Crown application to be able to use his statement should he take the witness stand is dismissed because the statement is not proven beyond a reasonable doubt to be voluntary.
Justice B.A. Glass
Released: February 13, 2015
R. v. SHEARER, 2015 ONSC 983
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RICHARD THOMAS SHEARER
REASONS FOR JUDGMENT
Justice B. A. Glass
Released: February 13, 2015