CITATION: R. v. Brown, 2016 ONSC 1881

COURT FILE NO.: CR-15-90000500-0000

DATE: 20160321

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEVINE BROWN

Chris De Sa and Elizabeth Bellerose, for the Crown

Kate Oja, for Mr. Brown

HEARD: March 7, 8, 2016

r.f. goldstein j.

[1] On February 5 2014 British customs authorities intercepted a package containing 1.13 kilograms of heroin. The heroin was hidden in pairs of women’s sandals. The consignor of the package was Suzan Hayatta of Forest Area, Monogoro, Tanzania. The package was addressed to Victor Mckenzie, 14 Rayoak Drive, Unit 706, Toronto. The person residing at that address was Tracy Brown. Tracy Brown is the sister of Kevine Brown.

[2] The British authorities sent the package to Canada, where the RCMP took possession of it. On February 12 2014 at 11:18 am an undercover RCMP officer posing as a DHL courier conducted a controlled delivery of the package. The undercover police officer buzzed Unit 706. Tracy Brown was home. She answered the buzzer. She signed for the package and took it. The police burst into the apartment to freeze it. They then waited for a search warrant. Mr. Brown appeared on scene about 3 ½ hours after the package was delivered. The RCMP detained and then arrested him. The Crown alleges that Mr. Brown was the true intended recipient of the heroin. He faces a charge of possession of heroin for the purpose of trafficking.

[3] Later in the evening of February 12 2014 Mr. Brown was questioned by Constable Doyle at an RCMP detachment. On March 10 2016 I ruled that the statement was voluntary. I indicated that I would provide my reasons in due course. The following are my reasons.

FACTS:

[4] At about 4:00 pm on February 12 2014 Mr. Brown got out of the elevator on the 7th floor of 14 Rayoak Drive. He was wearing a ski mask. Constable Burtch was in the hallway outside Apt. 706. Sgt Gollob and Constables Eskritt, Kellar and Willson were also present. The RCMP officers were in plainclothes. They were awaiting the arrival of a search warrant. Constable Burtch asked Mr. Brown to remove the mask. He asked if he was Kevine. He said yes. Constable Burtch then told him to put his hands on the wall. Mr. Brown asked if he was under arrest. Constable Burtch said that he was not, but that he was detained. He obtained Mr. Brown’s identification. Constable Kellar also asked him his name.

[5] Constable Burtch testified that Sgt Gollob directed Constable Willson to arrest Mr. Brown, and that Constable Willson did so at about 4:05 pm. He testified that Sgt Gollob explained the reasons for the arrest to him. Sgt Gollob, however, testified that he did not speak directly to Mr. Brown. He testified that he was speaking to the other officers in order to ensure that they explained the purpose of the arrest to Mr. Brown.

[6] Constable Willson testified that he arrested Mr. Brown at 4:00 pm for importing and trafficking and conspiracy re: a controlled substance. Mr. Brown responded “yes, I understand, this is bullshit”. He read Mr. Brown his rights to counsel from the card in his memo book. Mr. Brown stated “Yes I understand”. He then asked whether Mr. Brown wished to call a lawyer. Mr. Brown responded “yes”. Constable Willson then explained that Mr. Brown had the right to apply for assistance through Legal Aid. He read the caution, warning Mr. Brown that he need not say anything, but that anything he did say could be used in evidence. Mr. Brown responded “yeah”.

[7] During his examination-in-chief Constable Burtch testified that at 4:15 pm. Constable Willson read Mr. Brown his Charter rights and a caution from a card. In cross-examination he testified that he realized he made an error as to the time and that the reading of rights was probably just after 4:05 pm. Constable Willson, however, testified that he probably gave Mr. Brown his Charter rights closer to 4:15 pm.

[8] Constable Willson testified that he did not ask Mr. Brown anything outright. Mr. Brown volunteered that he was expecting a parcel for his friend Donny, and kept saying that it wasn’t for him. Mr. Brown also indicated that he was living in the apartment with his sister, and that his pain medication was in the apartment and he needed it. He said that he had suffered a gunshot injury. Constable Eskritt also testified that Mr. Brown told the officers that the package belonged to his friend Donny. Donny ordered lots of stuff online and had the package delivered to his place. Constable Eskritt did not recall whether the other officers were questioning Mr. Brown.

[9] In cross-examination, Constable Willson agreed that he had an obligation to hold off questioning once Mr. Brown asked to speak to a lawyer. He did, however, testified that his understanding was that once an accused person is cautioned then he can still write down everything that person says.

[10] Constable Willson transported Mr. Brown to the RCMP detachment where he was lodged in the cells. He called Legal Aid and left a message at 6:15. At 6:26 duty counsel called back and talked to Mr. Brown. He was placed in a private room for the telephone call.

[11] Constable Burtch also testified that right after the arrest Mr. Brown started talking. He said that Sgt Gollob did not mention anything about drugs in the package. He said that Mr. Brown stated that he had ordered the package for his buddy. He did not know what was in it or he would not have done it and that he was in his own shit with the Court from being shot three years previously.

[12] All of the RCMP officers testified that Mr. Brown was not threatened in any way; all of them testified that nobody made Mr. Brown any promises in their presence.

[13] Constable Doyle’s interview with Mr. Brown was recorded on video. He gave Mr. Brown the secondary caution before questioning him. The statement commenced at 9:56 pm and concluded on 11:18 pm. The interview commenced this way at pages 1-2 of the transcript:

PD: So Kevine my name is Constable Phil Doyle, I’m a police officer with the RCMP at the Toronto East Detachment and I work in Serious and Organized Crime. I’m gonna show you my badge, just so you can see that, okay. Now the purpose for us to talk to day Kevine is to go over the events today, alright. And I also want to cover some points. Those points being what yoru rights are and I want to make sure that you’ve received your rights, that you’ve been taken care of today. Do you understand that?

KB: Hmm.

PD: Okay. Now it’s my understanding that you’ve spoken to a lawyer.

KB: I have.

PD: Okay, that’s great. That’s good, now were you satisfied with the advice and counsel that you received?

KB: Yep.

PD: Good, excellent. Hum what I want you to know is that our talk today, its gonna be recorded, okay? And the things that we talk about today can be presented in court. Do you understand that?

KB: Yeah.

PD: Good. I also want you to know that if anyone’s promised you anything Kevine to talk to me today, I want you to know that promise will not be fulfilled. That’s not the way we do business. On the flip side, if anyone’s threatened you in any manner to make a statement to Police, I want you to know Kevine that you have no fear of that threat. Do you understand that?

KB: Yeah.

PD: So very simply, it’s you and I here meeting for the first time, starting fresh. Now do you understand Kevine why you were arrested today?

KB: Yes and no.

PD: Okay. And this is important that we talk about it, this is what’s called your charter of rights, okay, the reason for what you were arrested. I want you to tell me in your own words, why you were arrested just to make sure, I want to understand, make sure you’re

KB: Arrested for having drugs come to my sister’s house. A package, whatever it is.

[14] Mr. Brown indicated that he agreed to accept the package on behalf of his friend Donny. He said that Donny’s girlfriend did not like him spending money to order goods online. Donny asked if he would accept the package. He admitted telling his sister to sign a false name for the package and said that he would also have signed a false name. He did not divulge any contact information for Donny. Eventually, Mr. Brown confessed at pages 31-32 of the statement that he suspected that the package contained drugs:

PD: Why did you tell your sister to sign a fake name?

KB: Because, I didn’t want her to sign her name on that package. I wasn’t gonna sign, I wasn’t gonna put my real name either.

PD: Why?

KB: Because I had a feeling. I had a really bad feeling, so if, if worse did come to worse, my name wouldn’t be on that package. And like I said if I was there, I would have just not accepted it but I couldn’t see that package what it looked like.

PD: But then you told, you ordered your sister to sign for that package.

KB: Yes I did.

PD: Even though you had a bad feeling.

KB: It wasn’t, she, it was there so I was like alright sign for it but don’t put your real name cause

PD: And when you say a bad feeling, what does that mean?

KB: Something just wasn’t right about it, it could have been drugs, it could have been anyting I just had a feeling down here like

PD: Yeah

KB: Something’s not right.

PD: We’re getting closer Kevine. What was that feeling, what did you think was in that bag? Potentially in that package

KB: Some type of drug to be honest

PD: Some type of drug

KB: Some type of drug

[15] The police also arrested Tracy Brown, Mr. Brown’s sister. She had signed for the package under Mr. Brown’s instructions. She had been quite upset when she was arrested, and was taken to the hospital. She was pregnant at the time.

ANALYSIS

[16] Ms. Oja, on behalf of Mr. Brown, argues that the police provided an inducement to him such that his will was overborne. In other words, she argues, the inducement caused him to confess against his will. That inducement was a quid pro quo that if he gave a truthful statement then it would assist his sister, Tracy Brown. Ms. Oja further argues that the police breached Mr. Brown’s rights under s. 10(b) of the Charter of Rights when he was arrested. The police breached the duty to not to question until Mr. Brown had an opportunity to speak to a lawyer. Although she has not brought a s. 10(b) application (the Crown does not seek to tender those initial utterances) she says that the voluntariness of the videotaped statement is coloured by the earlier breach. She says that the Crown has failed to prove beyond a reasonable doubt that Mr. Brown’s statement was voluntary.

[17] Notwithstanding Ms. Oja’s skilful arguments, I respectfully disagree. I will deal with each of these in turn.

Did the police breach Mr. Brown’s rights under s. 10(b) of the Charter of rights?

[18] I find that the police did not breach Mr. Brown’s s. 10(b) Charter rights. There were some discrepancies in the evidence of the officers about when Constable Willson gave Mr. Brown his Charter rights. I am satisfied, however, that he did so. I am also satisfied that he did so immediately on arrest. There is no doubt that Sgt Gollob explained that the reason for the arrest was the fact that there was something illegal in the package. The conflict in the evidence is about whether he was telling his officers what to tell Mr. Brown (his evidence) or telling Mr. Brown the reasons for the arrest (Constable Burtch’s evidence). In this regard, I think that Sgt Gollob’s evidence is probably more reliable, but I also think it does not matter. The police had an obligation to tell Mr. Brown the reasons for the arrest and it is immaterial which officer told him. What is clear is that somebody told him.

[19] I am also satisfied that Mr. Brown simply told his story without being questioned by the police. Constable Willson said he did not question Mr. Brown. He testified that he was aware of his obligations in this regard. Constable Willson and Constable Burtch both testified that Mr. Brown simply started talking without being asked questions. Constable Eskritt recalled that Mr. Brown also started talking to the officers, but could not recall whether anyone questioned him.

[20] The tenor of the evidence of the police – and there is nothing to contradict that evidence – is that Mr. Brown was not questioned by any officers. He seems to have spontaneously started talking. Judging by his demeanour on the video-tape, Mr. Brown is a talker. He is not reticent. I accept the evidence of the officers that Mr. Brown simply started telling his story upon arrest. I find that Mr. Brown’s rights under s. 10(b) lf the Charter of Rights were not breached.

[21] I now turn to the next issue.

Did the conduct of the police induce Mr. Brown to give a statement against his will?

[22] Although the police are permitted to offer an inducement to obtain a confession, the inducement must not go so far as to be “strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 at para. 57.

[23] In my respectful view, the police did not offer an inducement such that it raises a reasonable doubt about the voluntariness of his statement. I also find that the police did not offer a bargain, or quid pro quo, to Mr. Brown in exchange for his cooperation or confession.

[24] In Oickle, Justice Iacobucci, for the majority, further pointed out at para. 57 that the police may offer some kind inducement to obtain a confession, but that a mere inducement is not sufficient to render a confession involuntary:

In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212, particularly apt:

Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.

The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.

[25] In R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, the accused was charged with a series of robberies. The police searched the residence that he shared with his girlfriend and found a handgun and jewellery from one of the robberies. The getaway car for three of the robberies was registered to his girlfriend. They were both arrested. The police conducted a long interview with him. He made inculpatory statements and asked for leniency on behalf of his girlfriend, as well as a visit with her. The interrogating officer would not make a deal with him. The trial judge ruled that the confession was voluntary and convicted him. The Court of Appeal allowed the appeal with a dissent, which is how the case found its way into the Supreme Court of Canada.

[26] For the majority, Deschamps J. allowed the Crown’s appeal and restored the convictions. In summarizing the principles in Oickle, she commented on the importance of a quid pro quo as a contextual factor:

Therefore, while a quid pro quo is an important factor in establishing the existence of a threat or promise, 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

[27] The analysis is a contextual one, as Iacobucci J. pointed out at para. 71 of Oickle:

In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an "inducement" as it was understood by the narrow Ibrahim formulation. Both results are incorrect.

Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all the aspects of the rule discussed above.

[28] Thus, a minor inducement in the context of an oppressive atmosphere may raise a doubt about the voluntariness of a statement. It will take a much stronger inducement to render the statement involuntary where the suspect is treated properly.

[29] Ms. Oja points to several passages in the statement as offering an inducement to Mr. Brown in exchange for leniency for his sister. At page 12 of the transcript, Constable Doyle raised the issue of Tracy Brown for the first time (I will refer to page numbers on the transcript rather than the time index on the video). Ms. Oja argues that the inducement started implicitly on page 19:

PD: Right, the truth. I think at least you owe that to your sister, to tell the truth right?

KB: That’s the only reason why I’m talking to you, otherwise I wouldn’t say anything to you. Cause she’s here, she doesn’t need to be here for this.

PD: She is here. She told us a lot. She told us that’s your package.

KB: She told you what?

PD: It’s your package. You’re Victor

KB: I’m not

[30] Mr. Brown mentioned Donny. He said that Donny arranged to send him the package. He indicated that he could not get in touch with Donny. Constable Doyle was sceptical. He again brought up Tracy Brown at pages 22-23 of the statement after telling Mr. Brown that the package contained over a kilogram of heroin:

PD: Do you know what heroin is valued at Kevine?

KB: I have no idea.

PD: Roughly three hundred fifty dollars a gram or eighty thousand dollars kilo.

KB: I can’t handle this, I can’t handle this. I’m so fucked. Oh why me. Why fuckin me. Holy shit. Heroin. Oh boy.

PD: And not only you, your pregnant sister as well. One kilo of heroin.

KB: Trust me, if there’s anything I can do right now to make this better, I fuckin will and I would.

PD: There absolutely is.

KB: And what is that?

PD: Just tell me everything, the truth.

[31] Mr. Brown then reiterated that he did not know Donny’s last name although they went to high school together. They just smoked weed on occasion together. He said that Donny did not pay him. He thought the package only contained innocuous items. He agreed that he told his sister to sign for the package. It was at that point that Mr. Brown gave the key admission: he admitted that he thought there might be some type of drug in the package.

[32] Constable Doyle then mentioned Tracy Brown again, and Mr. Brown’s mother, at page 33 of the transcript:

PD: I’m proud of ya, you came a long from the time we started this interview, you’ve been accountable. You said there might have been drugs in there, you asked our sister to sign to get it. We’re around the 70% mark. There’s a little bit more.

KB: No

PD: I want you to take a couple of minutes to think about yourself, your sister, and your mother. And then I’m gonna come back to talk to you just a little bit more.

KB: There’s

PD: Okay Kevine?

KB: There’s nothing else to talk about.

[33] Mr. Brown did not subsequently change the story about Donny, although he added more details. He did not provide a contact number, a description (other than Donny being a tall white guy) or a last name.

[34] Constable Doyle mentioned Tracy Brown at other points in the interview. He noted at page 36 that she had been fully cooperative and had agreed to do a lie detector test. He then asked if Mr. Brown would also take a lie detector test:

PD: Would you do the same?

KB: Hmm

PD: In regards to Donny

KB: Hmm

PD: And of course you know how accurate those machines are

KB: Yes 99.9% accurate

PD: Right. You think you’d pass the test?

KB: I should.

PD: No there should be no should, if you’re suggesting there’s no involvement you should pass it.

KB: (coughs)

PD: Why would you fail?

KB: Sorry. I shouldn’t fail, I have no reason, I have nothing ot hide. I just got played that’s all. In a really bad ay, in a really bad ay.

PD: The worse way that your pregnant sister has been dragged in.

KB: Yeah along with myself.

PD: How’s that gonna affect her life? How’s it going to affect her unborn child? Hows it gonna affect your mother?

KB: I can’t even think about that right now.

[35] Constable Doyle then went on to suggest that Mr. Brown’s story sounded ridiculous and suggested that Donny did not exist. He brought up Tracy Brown again at pages 38-39. The effort to obtain more information about Donny, however, was ultimately fruitless:

PD: What do you have to say about that?

KB: I don’t have anything to say about that. It’s fucked up. It’s so fucked up. Anyways it is what it is. I’d like to go back to my cell now cause there’s no more point of me being in here, fuck. I’m already fucked as it is.

PD: Well there’s one more thing you can do. You can be accountable for your sister, you can do the right thing.

KB: Which is?

PD: Give me the other 30%. The bit that you left out.

KB: Not again.

PD: There is more. There is more.

KB: Oh my gosh.

PD: You how that to your family Kevine.

PD: What you’re suggesting is not a realistic or believable story Kevine, at all. Doesn’t make any sense at all. I can’t make you be honest and tell the whole truth. I’m giving you an opportunity. I was off hours ago my friend, the reason I’m here is because your sister. I’m making the extra efforts for your sister and you’re not doing the same and I don’t understand why. I don’t get it. You’re sister is going to be charged with heroin importation, are you kidding me? Because you can’t stand up and do that right thing?

KB: I

PD: Come on man.

KB: I just told you, I just fucking told you. You think I want my sister to get in trouble, no.

PD: Then do the right thing and tell me the truth man. Tell me the rest.

KB: I just

PD: Give me Donny then. If there’s a Donny, give me something, give me Donny.

KB: I gave you all I can, he doesn’t have a fuckin number. Well he has a number but I don’t know it.

PD: What’s his last name?

KB: What we’re going backwards now?

PD: Just the stuff you haven’t told me.

KB: I don’t know his last name, fuck.

[36] Ms. Oja submitted several cases which she submitted were factually on point with this one. I will mention two.

[37] In R. v. Kiloh and Thiessen, 2003 BCSC 209, [2003] B.C.J. 321 the two men were charged with robbery. They both gave inclupatory statements. Thiessen’s was ruled voluntary. Kiloh’s was not. Ms. Oja relies on this passage at paras. 148-49 in the judgment as being similar to this case:

Kiloh told Cpl. Brown that Levy knew absolutely nothing. Kiloh repeatedly expressed to Cpl. Brown his reluctance to talk to him because he did not want to harm himself. The inducement regarding Levy occurred in the period where Kiloh expressed this concern and said he wanted to speak to a lawyer. Then, knowing how anxious Kiloh was about Levy's situation, Cpl. Brown said, "... Let me put it this way ... Like, I wanna ask you to help Levy ... I'm asking you to help Levy". Kiloh responded "I don't know how to help her without fucking myself". Corporal Brown replied, "Okay, by telling the truth". Kiloh then said, "But I don't wanna fuck myself" (by talking to the police). Corporal Brown replied, "But that's ... you gotta understand too, that's the honourable thing to do in a relationship".

I find as a fact the above passage discloses a clear inducement by Cpl. Brown to Kiloh with respect to lenient, or better treatment for his girlfriend, Levy, if Kiloh talked to him and told him the truth.

[38] Kiloh is distinguishable, however. First, the inducement offered by the police was much stronger than that offered here. Second, Kiloh’s feelings for his girlfriend were very strong, as MacKenzie J. observed at para. 157:

Whether an inducement regarding a person other than the accused is improper depends on the unique facts of the case: Oickle; R. v. Jackson (1977), 1977 CanLII 287 (BC CA), 34 C.C.C. (2d) 35 (B.C.C.A.), and R. v. Henri. An important factor is the nature of the relationship between the accused and the third person. In this case, Kiloh loved Levy very much and said this to Cpl. Brown. He told Cpl. Brown that she meant the world to him. He was most anxious about her arrest and tried to persuade Cpl. Brown that she had nothing to do with the robbery. The evidence reflects a relationship "such that the immunity of one was of such vital concern to the other that he would untruthfully confess to preserve it" (Oickle (at para. 52) quoting Jackson (at p. 39).

[39] Third, Kiloh had repeatedly asked to contact a lawyer that he viewed as independent of the police. That request was refused as he had already been permitted to contact duty counsel. MacKenzie J. found that the combination of the inducements and the futile requests to contact a lawyer created oppressive circumstances. That is clearly distinguishable factually from this case.

[40] Ms. Oja also relied on R. v. Umenwoke, 2013 ONSC 1554, [2013] O.J. No. 1188, a decision of my colleague Spies J. Umenwoke was charged with fraud. A police officer went into the holding cells. Umenwoke made inculpatory statements to the officer when they were alone together. He did not go to the cells to actually take a statement, but rather to see if Umenwoke would give one. Although there was video recording equipment available at the police station, the officer did not record the statements. They were written down in his notebook. On the voir dire, Umenwoke testified in chief that the officer told him that his girlfriend would go to jail if he did not cooperate. In cross-examination, Umenwoke changed his story slightly and said that the officer told him that his girlfriend would face jail time. He testified that the officer said that his girlfriend might not go to jail if he cooperated. The officer disagreed that he told Umenwoke that his girlfriend would go to jail, but did agree that he told him that he had put his girlfriend in jeopardy and that she could face jail time.

[41] Spies J. found that on the evidence before her, there was a reasonable doubt about the voluntariness of the statement. Although she did not find the officer not to be credible, it did not assist that the statement was not recorded. Furthermore, there was explicit evidence that Umenwoke perceived the officer’s comments to be an inducement.

[42] In my respectful view, this case is also factually distinguishable from Umenwoke. The inducement and quid pro quo in that case were obvious and there was direct and un-contradicted evidence from the accused that it caused him to confess. There is no such evidence in this case.

[43] In the context of this case, Constable Doyle did not offer an inducement to Mr. Brown such that it raises a reasonable doubt about the voluntariness of the statement. If Constable Doyle’s comment about owing it to his sister to be honest could be called an inducement, it was not a strong one. The key issue is not the presence of a quid pro quo but voluntariness. The existence of a quid pro quo is simply a factor in the analysis: Spencer at para. 19.

[44] I find that there was no quid pro quo in exchange for Mr. Brown’s cooperation or confession.

[45] I make these findings for the following reasons:

• Mr. Brown wanted to tell his version of the story. He started talking as soon as he encountered the police, even before he had an opportunity to consult a lawyer and not in response to any questions by the officers.

• There was no mistreatment of Mr. Brown at any point. He was not threatened or roughed up or promised anything in exchange for his cooperation.

• Constable Doyle never promised leniency or any other benefit to Tracy Brown in exchange for Mr. Brown’s cooperation.

• Although Constable Doyle certainly stated to Mr. Brown that he could help his sister by being honest, and mentioned her pregnancy, he did not go further than that.

• The first significant mention of Tracy Brown came when Constable Doyle stated that Mr. Brown owed it to his sister to tell the truth. Mr. Brown provided no useful information at that point.

• The second significant mention of Tracy Brown was at pages 22-23 of the transcript. Mr. Brown asked what he could do to make it better, and Constable Doyle told him to tell the truth. It is not clear that Mr. Brown was responding in order to help himself or his sister at that point. The answer was ambiguous. In any event, at that point Constable Doyle’s comments still did not yield either a confession or useful information.

• Mr. Brown essentially confessed to being wilfully blind about the presence of drugs in the package at pages 31-32 of the transcript. That was in the context of a discussion about Donny. There was no discussion of Tracy Brown at that point. That confession is the key inculpatory evidence against Mr. Brown.

• After the wilful blindness confession, there was further mention of Tracy Brown but Mr. Brown never offered up any more useful information. He did not provide a telephone number or any kind of contact information about Donny, the supposed sender of the package. He did not inculpate himself any further.

• Constable Doyle never offered to speak to the Crown or to his superiors on Tracy Brown’s behalf if Mr. Brown provided more information. The furthest he went was to suggest that Mr. Brown could help himself, and his sister, by being honest.

[46] I will make one final point about the supposed inducement. Frankly, I have doubts about whether Mr. Brown was all that concerned about Tracy Brown or whether leniency for her was an issue for him. In the video, his concern for his pregnant sister did not seem to be all that strong. Furthermore, he had no difficulty in using his sister’s address to receive a package that he (at the least) suspected contained drugs, or in telling his sister to use a false name to sign for it. He was apparently quite willing to place her at significant risk, but on the video he appeared far more distraught about his prospects than about hers.

[47] I therefore find as a fact that the comments about Tracy Brown by Constable Doyle were not an inducement sufficient to raise a reasonable doubt about the voluntariness of the statement. I also find that Constable Doyle did not offer a quid pro quo to Mr. Brown in exchange for his cooperation or confession.

Conclusion

[48] I am satisfied beyond a reasonable doubt that Mr. Brown gave his statement voluntarily.

DISPOSITION

[49] As I ruled on March 10 2016, the Crown may introduce the statement.

R.F. Goldstein J.

Released: March 21, 2016

CITATION: R. v. Brown, 2016 ONSC 1881

COURT FILE NO.: CR-15-90000500-0000

DATE: 20160321

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEVINE BROWN

REASONS FOR JUDGMENT ON STATEMENT VOIR DIRE

R.F. Goldstein J.