R. v. G.F.

CITATION: R. v. G.F., 2016 ONSC 2510

COURT FILE NO. 97/14 (Cobourg)

DATE: 20160413

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. G.F.

BEFORE: Bale J.

COUNSEL: Sarah Repka, for the Crown

Nathan Gotlieb, for the Accused

HEARD: March 14, 1016

ENDORSEMENT

[1] At the commencement of trial, the Crown moved for an order allowing a video statement given by the accused, on the day of his arrest, at the Port Hope police station, to be introduced into evidence. On such a motion, the onus is on the Crown to prove the voluntariness of the statement, beyond a reasonable doubt. Following the hearing of the motion, I ruled that the statement was inadmissible, and indicated that I would provide brief written reasons for my ruling. The following are those reasons.

[2] The test for voluntariness is summarized as follows in Sydney N. Lederman, Alan W. Bryant, Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis, 2014), at p. 453:

Reduced to its essentials, the voluntariness inquiry focuses predominantly, though not exclusively, on the ability of the accused to make a meaningful choice whether or not to confess. All the surrounding circumstances, including the accused’s mental state, are considered in evaluating whether the conduct of the authorities deprived the suspect of making a meaningful choice by reason of threats, inducements, oppression, coercion, trickery, misinformation, or other abuse. Causation, which was a component of the traditional Ibrahim rule, thus remains relevant in analyzing the relationship between the police conduct and the resulting confession under the modern confession rule.

[3] The allegation against the accused was that his sexual activity with the complainant was consensual, but that he induced her to engage in the activity, by abusing a position of trust.

[4] On the evidence led on the voir dire, it was clear that the accused was deprived of the ability to make a meaningful choice, whether to confess or not, by reason of police trickery and misinformation.

[5] The accused was advised that he was under investigation for sexual assault, and sexual interference. He was then cautioned and availed himself of the opportunity to speak, by telephone, with duty counsel.

[6] Early in the police interview, after a more general discussion of the relationship between the accused and the complainant, the police officer asks the accused whether he ever had sex with her, and then repeatedly tells the accused that if they did have sex, and it was consensual, then no crime was committed. The officer even goes so far as to tell the accused that there is nothing wrong with consensual sex with someone “even if they’re younger.” He tells the accused that consensual sex does not amount to sexual assault. He leads the accused to believe that there are serious allegations against him of forced sex, and that therefore, if he had consensual sex with the complainant, it would be in his best interests to tell the officer about it. He tells the accused that the “worst case scenario” is that he will end up in court telling his story of consensual sex, and there is nothing wrong with consensual sex.

[7] The police officer tells the accused that the reason why he, rather than someone else, is conducting the interview is that he knows the accused, and when he saw the accused’s name, wanted to help him out. He says that by telling the accused that the allegation is that he forced himself on the complainant, and by telling him that there is nothing wrong with consensual sex, he is “throwing [the accused] a big bone.”

[8] The officer lied to the accused about the complainant’s allegations, and misled him as to the applicable law. He made the following misstatements to the accused with respect to the allegations:

The allegations are – is that, at one point in time that you went over to her – that you had her over to your house, sorry; and that, you had uh, un-consensual sex with her, and you forced yourself on her.

That you had un – you had – you did not have consensual sex with her. I’m telling you that; it’s – it’s a big bone I threw your way. Right? We don’t even have to explain that scenario to you.

Someone’s telling me that you’ve thrown yourself on a person and had un-consensual sex, and you’re not having anything to explain yourself – that scenario which isn’t very good, and the situation isn’t – isn’t positive.

I can’t help you, if you don’t give me anything to help you with.

[9] The police officer should not have purported to give the accused legal advice, and may have had no obligation to give him particulars of the allegations against him. However, if he was going to do either, he had an obligation to be accurate.

[10] The police officer tells the accused that it would be sad if the investigation went further, when it could all be cleared up “with one line” (presumably “I had consensual sex with the complainant”). He says that if the accused does not tell him what happened, the situation will spiral out of control, and the accused will be “up shit’s creek without a paddle”.

[11] When the accused finally made an inculpatory statement, he did so without intending to confess to anything. He only made the statement because he was falsely led to believe that the complainant was alleging that he had forced her to have sex, and that an admission of consensual sex would be exculpatory. As a result of the police lies, he did not know his jeopardy.

[12] Crown counsel relies upon the decision of Tranmer J. in R. v. Williamson, 2011 ONSC 6584. In that case, the accused was charged with an assault on an 11 year-old male. The accused was 26 years old at the time. The police officer advised him that, although the law was black and white, there is a moral grey area, when the sex occurs in the course of a relationship. He told the accused that he made a bad choice, but that the choice didn’t make him a bad person: rather, it made him human. One of the defence arguments, for the exclusion of the statement, was that the police had lied to him, and minimized his legal culpability. However, in holding that the statement was admissible, the trial judge found that the accused, at all times, understood the applicable law, and that the discussion related to the morality of the accused’s conduct, and not to whether the conduct was lawful or unlawful. In the present case, unlike in Williamson, the advice given to the accused was about the legality, and not the morality, of the sexual activity in question. The officer specifically says to the accused: “I’m talking from a police angle; there’s nothing wrong with consensual sex”, and that if the sex was consensual, “it’s not a criminal offence”.

[13] Also objectionable is the police officer’s attempt to undermine the advice given to the accused by duty counsel. After repeating several times that he is “throwing the accused a bone” by telling him the nature of the allegations, the officer says that he is put in a “bit of a situation”, as a result of duty counsel’s advice that the accused not say anything. He says that the lawyer with whom the accused spoke “doesn’t know anybody”, that he asks everyone the same questions, and “tells them whatever”. He suggests that the advice given by duty counsel is contrary to the accused’s best interests, because the accused could easily clear things up, by making what the police misrepresented to be an exculpatory statement.

[14] I understand that a certain degree of police trickery and misinformation may, in some cases, be acceptable. However, in the present case, if the inculpatory statement made by the accused even qualifies as a “confession”, then the accused was deprived of the ability to make a meaningful choice, whether to make that confession or not.

[15] For the reasons given, I ruled that the statement given by the accused was inadmissible.

“Bale J.”

Date: April 13, 2016