CITATION: R. v. Buttazzoni, 2016 ONSC 1730
COURT FILE NO.: CRIMJ(F)643/13
DATE: 20160311
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Holly Akin and Pamela Larmondin, for the Public Prosecution Service of Canada
- and -
JAMES BUTTAZZONI, SEAN HUSSAIN, RAMPERSAUD RAMLALL, GARY RAMOUTAR
James Carlisle, for James Buttazzoni
Royland Moriah, for Sean Hussain
Mukesh Bhardwaj and Paul Dhaliwal, for Rampersaud Ramlall
Maurice J. Mattis, for Gary Ramoutar
VOLUNTARINESS RULING
Daley RSJ.
Introduction
[1] The accused, James Joseph Buttazzoni, Sean Mohammed Hussain, Rampersaud Ramlall, and Gary Glenn Ramoutar are each charged with offences relating to drug importation, including conspiracy to import a controlled substance, namely cocaine, importation of cocaine, and possession of cocaine for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act, section 6(1) and the Criminal Code of Canada, section 465(1)(c).
[2] The importation charges relate to a large quantity of cocaine, namely approximately 112 kg, which arrived in Canada in a sea shipping container from Guyana.
[3] The trial of these charges was to proceed before a court composed of a judge and jury, however, the accused re-elected to proceed with the trial before a judge alone.
[4] The Crown applied for an order that the statements of the accused Ramlall made by him to the investigating police officers on June 15 and 16 of 2012, were made voluntarily and as such they are admissible in the trial evidence.
[5] As there were several evidentiary applications pending, in addition to the Crown’s application, the trial proceeded with a blended voir dire as to the voluntariness of the statements made by the accused Ramlall.
[6] As considered below, the record shows that Ramlall made four statements to the police officers who were conducting the investigation of the drug importation, one while he was in a police vehicle en route from the place where he was arrested on the morning of June 15, 2012; a second statement being a video interview statement on the afternoon of June 15; a third being an unrecorded statement which was followed by a fourth statement, namely a second video interview statement on June 16, 2012.
[7] Counsel for the Crown sought a ruling as to the admissibility of two of the four statements, namely the statement made in the police vehicle, following his arrest, while in transit on the morning of June 15, and the video interview statement given by Ramlall on the same date.
[8] For the brief reasons given during the course of the trial, the Crown’s application was dismissed with further reasons to follow. These are those reasons.
Evidentiary Record on the Voir Dire
[9] Following an RCMP investigation, which commenced in May 2012, where information was developed that the sea container holding a quantity of cocaine was to be delivered by ship to St. John New Brunswick from Guyana, a container was located by the Canada Border Services Agency and the RCMP in New Brunswick and it was determined upon investigation that the container held approximately 112 kg of cocaine along with some food stuffs. The container was destined for the consignee Moe’s Island Grocery in Mississauga, Ontario.
[10] The cocaine was hidden in wooden pallets located in the container. The cocaine was removed from the pallets in the container and was ultimately transported by CN rail to a rail yard in Brampton, Ontario where the police prepared the container for a controlled delivery.
[11] As part of the controlled delivery, the police installed an audio probe within a pallet inside the container.
[12] Following its arrival at the CN rail yard, the container was then transported by truck to a storage location known as Public Storage at 921 Queensway East, Mississauga.
[13] The RCMP investigators maintained surveillance of the container while it was located at the Public Storage location and on June 14, 2012, observations were made of the pallets being offloaded from the container into a truck, which was then driven to Ramlall’s home at 14 Birch Park Street in Whitby.
[14] RCMP surveillance continued at that location and the pallets were observed being removed from the truck, which had picked them up at the Public Storage location and they were then placed in Ramlall’s garage on June 14. Surveillance was maintained at the home overnight.
[15] In the morning of June 15, 2012, banging sounds, consistent with the sounds of the pallets being pulled open, were heard via the audio probe which had been installed in one of the pallets, by the RCMP surveillance team. Upon hearing the sounds emanating from the area where the pallets were located, the officer in charge ordered a takedown of the persons at the house at 9:36 a.m.
[16] In the course of the RCMP takedown, the accused Ramlall and Ramoutar were arrested outside the home.
[17] Ramlall was arrested by RCMP Constable Johnson at 9:37 a.m. outside his home. He was provided with his rights to counsel and the required cautions. Counsel for Ramlall indicated that no issue was taken with respect to the conduct of Constable Johnson regarding his arrest of the accused.
[18] At the time of his arrest Ramlall was secured with handcuffs and then placed in a police vehicle by Constable Johnson and he remained in that vehicle, which was parked outside his home until 11:19 a.m., at which time he was turned over to RCMP Constable Verma, who was assigned to take charge of the accused and to transport him in his police vehicle to the RCMP offices at Pearson International Airport.
[19] Constable Verma testified that upon taking charge of Ramlall he advised the accused the reason for his arrest related to a drug investigation and conspiracy to import drugs. He further provided him with particulars as to his rights to counsel and caution.
[20] Constable Verma testified that Ramlall confirmed he understood the reason for the arrest and the caution. He also stated that the accused indicated to him that he wanted to speak to a lawyer. The officer testified that between 10:50 a.m. and 11:19 a.m. efforts were made to reach Mr. Ramlall’s lawyer of choice by way of Constable Johnson’s cell phone.
[21] After taking charge of Ramlall, Constable Verma contacted the RCMP dispatching centre at 11:25 a.m. and then left Ramlall’s home to travel to the RCMP facilities at Pearson International Airport. Constable Verma testified that at 11:45 a.m., approximately 20 minutes after leaving Ramlall’s home, the accused made a statement to him as they travelled in the police vehicle.
[22] Constable Verma testified that, as he was driving, he made a verbatim record of the accused’s statement in his notebook which read as follows: “He said he knew it was drugs. Was going to be paid 10 to 12 K, meaning $10-$12,000. The guy lives close to the container where he picked up the load near QEW and Cawthra, only met the guy three to four times, and that the male in charge of the load is of Indian Guyanese descent.”
[23] Constable Verma acknowledged that he engaged in “small talk” with the accused but the statement as outlined represented the extent of the interaction he had with the accused, that he felt compelled to write in his notes as it pertained to the case.
[24] There is no evidence that Constable Verma recorded in his notebook or elsewhere any other part of the conversation he and the accused engaged in during the one-hour drive from Whitby to the airport.
[25] Constable Verma was unable to offer any evidence as to the details of his discussions with the accused other than when prompted to in cross-examination.
[26] He agreed that included in this conversation with Ramlall, while within the police vehicle en route to the airport, were the following:
(1) he promised or advised the accused that he would be given the opportunity to speak with the senior officer on the case;
(2) he learned that the accused had a young family;
(3) that he was going to try to get him home to his family soon; and,
(4) he promised the accused on the drive that he would get down to the bottom of what was going on because he thought the accused’s situation was “pretty unique”.
[27] In the recorded video interview statement, Constable Verma made several references to unrecorded statements made by him to the accused during their trip in the police vehicle en route to the airport.
[28] The accused and Constable Verma arrived at the RCMP offices at the airport at 12:18 p.m. He was then lodged in a cell at 12:25 p.m. and his handcuffs were removed.
[29] At 13:45 p.m. the accused was taken by Constable Verma to a lawyer interview room, a short distance from his cell where he was left alone, while he engaged in a telephone conversation with his lawyer. He was returned to his cell by another officer.
[30] At 14:22 p.m. the accused was taken to the fingerprint room where Constable Verma examined his hands under a black light. No marks were detected on his hands. He was returned to his cell by another officer.
[31] Constable Verma testified that he was asked to assist in the interview of Ramlall which commenced in an interview room at approximately 15:22 p.m. and lasted 1 hour and 11 minutes ending at 16:33 p.m. He was not handcuffed during this interview. The interview was video recorded and the transcript of the interview statement was introduced as exhibit “A” on the voir dire. Counsel for the accused Ramllal agreed with the accuracy of this transcript.
[32] RCMP Corporal Singh participated in the interview of Ramlall, with Constable Verma.
[33] At the commencement of the interview by Constable Verma, after having confirmed that Ramlall had an opportunity to speak with his lawyer, the following exchange occurred between Constable Verma and the accused:
SV: Okay. And ah, I know you’re being ah held in the cell here at the airport ah, um and at some point you might have been interacted with by other officers that are here today. Like somebody else might have spoken to you to get some water.
RR: Uhm.
SV: Or something of that effect. I just want you to know that if you feel that they’ve threatened you in any way or if they said something to you that can, you just, you you understand what I’m saying though that if they said that, don’t feel that that should weigh or, or make you act in any way.
RR: ______
SV: You understand that though right?
RR: Uhm.
SV: So you have nothing to fear from anything.
RR: No.
SV: That these people have said.
RR: No.
SV: Is that cool?
RR: Yeah.
SV: Okay so as long as you understand that. Um, Ish is, ah remember when we were talking in the car here um in the car ride. Ish ah, Ish runs the section that ah, that’s dealing with this investigation.
RR: Uhm.
[34] In regard to his consultation with his lawyer, prior to the video interview, the following exchange took place between Ramlall and Constable Verma near the beginning of the interview:
RR: Yeah. My, my lawyer said to me, he said be careful what I’m saying and I’m scared to, he said careful of I’m saying because they can use that against me but.
SV: Certainly, certainly. You should listen to your lawyer and, and your lawyer will tell you stuff and I’m not trying to.
RR: Uhm.
SV: Entice you or, or implore you to say something. All I’m saying is, like we discussed on the car ride.
RR: Uhm, uhm.
[35] Further, at the beginning of the interview Constable Verma made reference to the conversation he had with Ramlall on their drive from Whitby to the RCMP offices and the following exchange occurred during the interview:
SV: And ah I had promised you on the drive here that we would ah, get down to the bottom of what’s going on because I think your situation is pretty unique.
RR: Uhm.
SV: Like you were saying, I don’t think. I said it before; you’re not the guy with the Ferrari in your garage. You’re a guy with ah, with a young family and a, a wife. And ah so we’ve been discussing it.
RR: Uhm.
[36] In cross-examination, Constable Verma acknowledged that he did not state to the accused that he was not being promised anything. A complete secondary caution was not given to the accused by the police at this time. At the end of the video statement the following exchange occurred between the accused and Singh:
IS: Rampersaud we deal with millions of people eh, you’re just one of, this file is just one of millions that we deal with. You’re not, you’re not the first and you’re not the last right?
RR: I know.
IS: We deal with this all the time. People come in here you know, talk, some guys go with ssh bullshit, some guys say what you’re saying you know. Tell us the story, it all goes through the bullshit strainer.
RR: What’s your experience, what, what, what do you think will happen to me?
IS: That’s really before the, before the.
RR: Just want to know, I just want to know man.
IS: I, I can’t comment on what the court system can do for you. Ah, I mean it will be noted that have been cooperative and that you’ve corroborated what, what has ah been observed there, what the police has ah as evidence. That we certainly can but again we can’t ah promise anything right. Ah this is not a court, we’re not here to like fear break you and go okay buddy.
RR: I know.
[37] Constable Verma acknowledged in cross-examination that a secondary caution was not provided to the accused during the video statement as recorded, however, he testified that the accused was told on numerous times, off camera, that they could not promise him anything nor do anything for him. No record or note of a secondary caution after arriving at the RCMP offices was adduced in evidence.
[38] Constable Verma further agreed in cross-examination that just up to the point of the exchange between the accused and Singh, where he was advised that no promises could be made to him, as outlined above, Constable Verma continued to advise Ramlall that they were going to tell the judge that he had cooperated.
[39] Constable Verma agreed that during the video interview the accused was calm, never raised his voice and never physically touched any officer.
[40] The following exchange took place between Constable Verma and Singh, as the interviewers and Ramlall near the end of the video interview:
IS: We can’t ah sit here and promise you anything or anything like that right? But ah appreciate your cooperation and ah it’s got to be before the judge really.
SV: But understand we’re going to make sure that the judge knows that you’re being cooperative, we’re going to play the tape, you know what I mean. Like it’s not going to be, you were being violent with us. You were good. You know, you were.
RR: Ah just asking police oh if any of you guys can help me buddy, I mean like I, I don’t want problems, I mean.
IS: Rampersaud we can’t help, you know like the way you’re mentioning.
RR: Uhm.
IS: It’s a process in place, right, that we all have to follow through.
RR: No like if, I don’t want whatever, I mean like I know how this goes but I don’t want nobody come up and say that I said so and I didn’t want nobody coming.
IS: That’s going to be ah before the courts really at this time, right?
RR: No I’m saying, like I don’t want nobody coming to say like if I tell you about, like I won’t can’t tell you about who is this one and he like sent somebody over at my house, you know what I mean?
IS: Yeah, ah we can’t promise anything to you right Rampersaud. It’s, I mean, we’re just looking for your cooperation and then your involvement here and what you know, right? Your side of the story here. That’s, that’s what . . .
SV: And to benefit yourself too, right, I mean there’s a difference when, when a judge, and we’re not judges, but when a judge sees somebody that’s ah, and this is just from my past experience, and, and Ish will say the same thing. There’s a big difference in the judge’s eyes between somebody that, sometimes I’ll have somebody on video tape doing something and they’ll deny, deny that they’re doing it. Well the judge looks at it, in my past experience the judge has treated that person fairly harsh.
RR: Yes man, I am just wanna, just I don’t know man.
SV: No when a judge sees this, in my past experience from other investigations that are similar to this one, ah, I, I can tell you that they have always taken into consideration from my past experience, someone that is, like you’re saying, a family man caught in the middle.
RR: I don’t want to . . .
IS: But that, but that, that being said we want, don’t want to give you the false ah.
SV: Right.
IS: Impression or hope that.
RR: No I don’t wanna get you. And I don’t want to get you.
SV: You don’t want to get what?
RR: No I don’t want you ______ .
[41] Constable Verma agreed that throughout his interaction with the accused he advised him that he was dealing with very serious charges and he further acknowledged that he engaged in more conversation with the accused while in transit in his vehicle beyond that which was recorded in his notebook. He also acknowledged that he told the accused during their ride in the police vehicle that judges look at the cooperation offered by the suspect and that it is beneficial for an individual to cooperate and to speak to the police.
[42] Singh also agreed that during the video interview Ramlall was not advised of his right to remain silent. He acknowledged that Ramlall was cooperative but emotionally distressed and crying at times.
[43] Early on in the video statement Constable Verma engages in conversation with the accused by stating: “You have an opportunity, I brought you specifically, I, I brought the guy down that’s that’s running this file. If you’re going to have an opportunity to speak to what it is that went wrong, how you got railroaded into something, um.”
[44] Ramlall then goes on to make some statements regarding his involvement with the pallets that were in the container and the following exchange took place between Ramlall and Constable Verma:
RR: But he calls me yesterday morn or was it yesterday morning? Yes, he said okay everything’s ready, everything’s good, can you come and pick it up?
SV: Okay.
RR: So I went yesterday and pick it up. I hire a truck to come pick it up. I carry it to my house, I put in my garage and this morning I decide to start open it to see, to find.
SV: Right.
RR: Anyway I start to open it up. I find nothing inside and ah I call him just now and say ah hey I’m not find nothing here, like you better send someone cause I don’t you say oh I steal your stuff. Alright because I know this game and like if somebody steal some, a thing whatever, then they want to shoot you, they want to kill you. They want . . .
SV: Hey, hey we’re here, we’re here, it’s okay. It’s okay.
RR: No I can’t, I . . .
SV: No you can talk. It’s okay.
RR: I don’t want, I don’t want that so I call him right away, but I’m, but just off the phone, he say can’t get back to me just now, since I have the phone, you guys came.
SV: And that’s basically how it happened.
RR: Yeah.
SV: Now um, you had, did you have an idea like what was going on to some extent like?
RR: Ah basically the guy, yeah.
SV: Okay so, you had, did you know what it was or, what did you think it was?
RR: You know what he never tell me, but I think it was that.
SB: That meaning what?
RR: Ah white powder.
SV: White powder, probably, what would it be do you think?
RR: Ah it’s ah what you can use ah, people smoke it.
SV: Ah like cocaine, is that what you mean? You thought it was probably cocaine?
RR: Yeah.
SV: Um what um what was he going to pay you to help him unload it?
RR: I have no idea.
SV: Okay so he never threw any numbers around? You were just going to . . .
RR: No he said he’s gonna pay me good but I have no idea what he was going to pay me.
SV: Did you have a feeling for what good is . . .
RR: Ah I don’t know, maybe ten, fifteen, twenty thousand, I’m not sure.
SV: But, but good money like, good money.
RR: Yeah, yeah, good money.
SV: Okay, alright. Um, what name did he go by, like when you talked to him on the phone?
RR: Sherm. Sherm, I know him, I think his right name is Harvey Sherman.
SV: Harvey Charon?
RR: I think Sherm, Harvey Charon.
SV: But he, he’s, he, he’s an Indian guy like us.
RR: Yeah he is. Indian.
SV: Okay he’s an Indian ______ guy.
RR: Yes, you know what, buddy as I’m saying, I’m willing to cooperate with you guys. I don’t want to ______ I want to, please let me get back to my family.
SV: That’s what we’re trying to do here.
[45] In this portion of the video interview the accused acknowledges that he knew the shipment of pallets contained cocaine, he hired a truck to pick up the pallets, he was to be paid between $10,000, and $20,000, and he opened some of the pallets after they were placed in the garage at his home.
Positions of the Parties
Position of the Crown:
[46] It was the position of the Crown that Ramall’s statements in the police cruiser and in the video interview on June 15 were voluntary and even if the statements were made by him as a result of something said or done by the police, any hope he had of receiving favourable treatment by the court was self generated and there was no quid pro quo offered by the police to him.
Position of the Defence:
[47] It was submitted on behalf of Ramall that the statement made while in transit in the police cruiser should remain to be presumptively involuntary due to the insufficient evidentiary record presented as to the full particulars of the interaction between the police officer and the accused, both before and after the statement, as recorded by the officer.
[48] Further, it was submitted that during the interaction between the officer and the accused in the police cruiser, there were promises or inducements made by the officer which resulted in the accused making the statements he did both in the cruiser and later in his video statement such that neither statement was voluntary.
[49] Finally, it was submitted that as the video recorded statement was a derived statement flowing from the involuntary statement made in the cruiser, it was tainted and thus involuntary.
Analysis:
Legal Framework:
[50] The burden on the Crown is to establish beyond reasonable doubt that the statement made by the accused was voluntary. If there is evidence that raises a reasonable doubt about whether the accused’s free will was overborne as a result of the police conduct in questioning the accused, the statement must be excluded.
[51] As to the evidentiary record available on this voir dire, for the reasons explained below, I am not satisfied that it is sufficient to allow for proper assessment as to whether the accused’s was voluntary.
[52] The statements made by the accused Ramlall were clearly made to police officers, persons in authority.
[53] The assessment of the voluntariness of a statement involves a two-stage contextual evaluation of the totality of the circumstances surrounding the making of the statement: R v. Oikle, 2000 SCC 38, [2000] 2 S. C. R. 3.
[54] The first stage involves examination of such factors as to whether the police used inducements, such as promises or threats resulting in a quid pro quo, whether the accused had an operating mind and whether the conduct of the police created an oppressive atmosphere. These factors are considered for the purpose of determining whether the will of the accused was overborne by the police conduct during the questioning, such that he or she did not freely exercise the right of choice to remain silent or to speak to the police.
[55] In weighing these considerations, the court should also examine the individual characteristics and personal history of the accused.
[56] The second stage of the analysis involves examination of any “police trickery” that may have been used in the course of the police questioning that resulted in a confession. It was acknowledged by counsel on behalf of the accused Ramlall that no police trickery was involved in the taking of the statement in the police cruiser, while in transit nor in the video recorded statement of June 15.
[57] As to the sufficiency of the record of a statement, in the voluntariness context, it has always been recognized that there must be a sufficient evidentiary record of the interaction between the accused and the police in order for the Crown to discharge its voluntariness onus: see R. v. Bou-Chahine, 2013 ONSC 6355, at paras. 18 – 28.
[58] Charron J.A., as she then was, stated as follows with respect to the sufficiency of a record in R. v. Moore-McFarlane (2012), 2001 6363 (ON CA), 160 C.C.C. (3d) 493 (Ont. C.A.):
The decision in Lapointe does not stand for the proposition that all issues of accuracy and completeness of recording are left to the triers of fact. Such an interpretation would run contrary to centuries of jurisprudence that require careful scrutiny of the circumstances surrounding the taking of a statement by persons in authority. And, in my view, the completeness, accuracy and reliability of the record have everything to do with the court’s inquiry into and scrutiny of the circumstances surrounding the taking of the statement. Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.
[59] The court further stated in Moore-McFarlane:
The Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. The onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.
[60] The accused Ramlall was arrested at 9:37 a.m. and placed in the police vehicle. Upon being turned over to Verma, and after attempts at reaching his lawyer by telephone, the accused was taken from his home in the police vehicle with Verma at 11:25 a.m. for the purpose of travelling to the airport offices of the RCMP. At approximately 20 minutes into the trip from Whitby to the RCMP offices, namely at 11:45 a.m., Verma testified that Ramlall made the statement outlined above.
[61] Thus, the accused was in police custody, handcuffed and within the police cruiser for approximately 2 hours before making the statement attributed to him.
[62] Verma acknowledged in cross-examination that while within the police vehicle en route to the airport he:
(1) promised or advised the accused that he would be given the opportunity to speak with the senior officer on the case;
(2) he learned that the accused had a young family;
(3) while in transit with the accused, he agreed that it was normal for him to have stated to him that he was going to try to get him home to his family soon; and
(4) he promised the accused on the drive that he would get down to the bottom of what was going on because he thought the accused’s situation was “pretty unique”.
[63] No evidence was offered with respect to what was recorded in Verma’s notebook apart from the statement attributed to the accused. He had no record of any other portion of the conversation he had with the accused, particularly, during the one hour drive from Whitby to the RCMP offices at the airport. Notably, Verma was unable to offer any evidence as to his recollection of the discussions he had with the accused, apart from the statement he attributed to him, other than when prompted to do so during cross-examination.
[64] As to the statement attributed to Ramlall while travelling with Verma in the police cruiser, I have concluded that the Crown has not established beyond reasonable doubt that this statement was voluntary. The record provided is wholly incomplete, and more than questionable as to its accuracy and reliability. Further, no evidence was offered by the Crown that would demonstrate that the brief note made by Verma in his notebook of an interaction he had with the accused while travelling in the police cruiser, constituted a sufficient substitute for an audio or video record of any statement made by the accused.
[65] As to the voluntariness of the recorded video statement taken of Mr. Ramlall on June 15, after his arrival at the RCMP offices, this engages the derived confessions rule.
[66] This common-law rule was considered thoroughly by Watt JA in R .v. D. (M.) 2012 ONCA 841 at paras. 53 to 59.
[67] Watt JA explained the derived confessions rule in paras. 53 – 59 which read as follows:
The Derived Confessions Rule
[53] The derived confessions rule is a common law rule that governs the admissibility of a confession that has been preceded by an involuntary, thus inadmissible confession. The derived confessions rule is not a per se or bright line rule that excludes all subsequent confessions on the ground that they are tainted, irrespective of the degree of their connection to the prior inadmissible statement: R. v. I (L.R.) and T. (E.), 1993 51 (SCC), [1993] 4 S.C.R. 504, at p. 526; and R. v. Hobbins, 1982 46 (SCC), [1982] 1 S.C.R. 553, at p. 558.
[54] To determine whether a subsequent statement will be excluded under the derived confessions rule because of the taint left by its involuntary and thus inadmissible predecessor, a trial judge must examine all the relevant circumstances to determine the degree of the connection between the two statements: T. (E.), at p. 526. The Supreme Court of Canada has set out some of the relevant circumstances or factors to consider in determining the degree of connection between the two statements, and thus the influence of the antecedent taint: see T. (E.), at p. 526; Hobbins, at p. 558; and R. v. G. (B.), 1999 690 (SCC), [1999] 2 S.C.R. 475, at para. 21. These include but are not limited to:
• the time span between the statements;
• advertence to the earlier statement during questioning in the subsequent interview;
• discovery of additional information after completion of the first statement;
• the presence of the same police officers during both interviews; and
• other similarities between the two sets of circumstances.
[55] The application of these factors will render a subsequent statement involuntary if either the tainting features that disqualified the first continue to be present, or if the fact that the first statement was made was a substantial factor that contributed to the making of the second statement: T. (E.), at p. 526; G. (B.), at paras. 21 and 23. It will generally be easier to establish that tainting affected the first when both these conditions are present. In the end, however, what matters most and mandates exclusion is that the connection is sufficient for the second to have been contaminated by the first: G. (B.), at para. 23.
[56] The inquiry required when the derived confessions rule is invoked to exclude a subsequent statement is essentially a causation inquiry that involves a consideration of the temporal, contextual, and causal connections between the proffered and earlier statements: R. v. Plaha (2004), 2004 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 46. The inquiry is a case-specific factual inquiry: R. v. Simon, 2008 ONCA 578, 269 O.A.C. 578, at para. 69.
[57] Despite its origins as a common law rule where lack of voluntariness is the contaminating factor, the derived confessions rule is of more general application. The contaminating factor may be constitutional infringement, say a breach of s. 10(b) of the Charter. There, the subsequent statement is tainted if the breach and impugned statement can be said to be part of the same transaction or course of conduct. The admissibility analysis in these cases is performed under s. 24(2) of the Charter: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; Simon, at para. 69; and Plaha, at paras. 42-45.
[58] The derived confessions rule may also be engaged where the contaminant in the prior statement is a failure to comply with s. 146(2) of the YCJA, or its predecessor, s. 56 of the Young Offenders Act, R.S.C. 1985, c. Y-1, as repealed by Youth Criminal Justice Act, S.C. 2002, c. 1: T. (E.), at p. 527; R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at para. 28.
[59] To determine whether the derived confessions rule will warrant exclusion of a subsequent statement, a trial judge must follow a contextual and fact-based approach: S.G.T, at para. 29. The nature of the inquiry and the findings required in the derived confessions analysis have implications for the scope of appellate review. The admissibility of a confession that has been preceded by an involuntary (or otherwise) inadmissible confession, in other words, the application of the derived confession rule, involves a factual determination based on factors designed to ascertain the degree of connection between the two statements: T. (E.), at p. 526. This determination, like a determination of whether a statement is voluntary or compliant with s. 146(2) YCJA, is largely a question of fact. Appellate review of the judge’s decision is limited to deciding whether the judge erred in her assessment of the evidence, failed to consider relevant circumstances, or failed to apply the correct principles: T. (E.), at p. 526; R. v. McIntosh (1999), 1999 1403 (ON CA), 141 C.C.C. (3d) 97 (Ont. C.A.), at paras. 21-22.
[68] As I have determined that the police cruiser statement by Ramlall was involuntary, for the reasons expressed, it must then be determined whether the subsequent statement taken on the afternoon of July 15 at the police station is to be excluded under the derived confessions rule because of the taint left by the involuntary and thus inadmissible predecessor statement. This includes an examination as to the degree of connection between the two statements.
[69] As to the time span separating the taking these two statements, Verma testified that Ramlall made the in-cruiser statement at 11:45 a.m. The record shows that the video interview statement taken at the police station on July 15 commenced at 3:22 p.m., thus approximately 3 ½ hours after the in-cruiser statement.
[70] During the video recorded statement, Verma, who was present with the accused in the police cruiser, was also present during the video interview and engaged in questioning him at several points throughout that interview, which lasted 1 hour and 11 minutes.
[71] Verma made reference to the accused’s earlier statement during the questioning in this subsequent interview and made reference to their discussions in the ride in the cruiser during the video interview. He further made reference to his statement to the accused in the cruiser that “we would get down to the bottom of what’s going on because I think your situation is pretty unique”.
[72] Although Verma testified in cross-examination that a secondary caution was provided to the accused, off-camera, during his video interview, he agreed that one was not provided to the accused during the actual video statement recording.
[73] Similarly Singh agreed in cross-examination that during the video interview of Ramlall he was not advised as to his right to remain silent at any time.
[74] In my view the interaction between Verma and Ramlall that occurred in the police cruiser, although interrupted in time, and although also interrupted by the accused speaking with his lawyer, in reality constituted one interview in that the first statement made represented a substantial factor that contributed to the making of the second statement. Thus, the videotaped statement was causally, temporally and contextually connected with the first statement. None of the words used by Verma or Singh cleansed away the deficiencies associated with the first tainted statement so as to establish beyond a reasonable doubt that the video statement was voluntary.
[75] For these reasons, I have concluded that the Crown has failed to establish beyond a reasonable doubt that the statements made by Ramlall in the police cruiser and during the subsequent videotaped interview on June 15 were voluntary.
Daley RSJ.
Released: March 11, 2016
CITATION: R. v. Buttazzoni, 2016 ONSC 1730
COURT FILE NO.: CRIMJ(F)643/13
DATE: 20160311
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JAMES BUTTAZZONI, SEAN HUSSAIN, RAMPERSAUD RAMLALL, GARY RAMOUTAR
VOLUNTARINESS RULING
Daley RSJ.
Released: March 11, 2016