CITATION: R. v. A.S., 2016 ONSC 2626
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
A.S.
Defendant
Mareike Newhouse, for the Crown
Michael Fairney, for the Defendant
HEARD: March 29, 30, 31, April 1 and April 4, 2016
RULING ON THE ADMISSIBILITY OF STATEMENTS
B. P. O’Marra, J.
background
1On February 10, 2014, members of the Toronto Police Service (TPS) commenced an investigation into alleged sexual assaults and related offences committed by J.K. against his stepdaughter, I.B. She was nine years old when she was interviewed that day. A.S. is her mother. The offences were alleged to have occurred in the family home shared by J.K., A.S., I.B. and her younger brother, R. Based on the information from I.B., J.K. was arrested and charged with various sexual offences.
2On February 11 and 12, 2014, A.S. had discussions with the police and provided statements as a potential witness against J.K.
3Based on the content of the statements provided by I.B. and A.S., there was evidence that A.S. knew about sexual activity between J.K. and her daughter from April 2013. As a result, A.S. was charged with criminal offences as follows:
(1) Failure to provide the necessaries of life, contrary to s. 215(2) (a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46;
(2) Criminal negligence, contrary to s. 221 of the Criminal Code; and
(3) Permitting prohibited sexual activity, contrary to s. 171 (a) of the Criminal Code.
4The Crown applied for rulings related to the admissibility of the utterances and statements made by A.S. to the TPS and the Catholic Children’s Aid Society (CAS) on February 11 and 12, 2014. A.S. submitted that all of those utterances and statements were involuntary and thus inadmissible.
5On April 4, 2016, I ruled that the utterances and statements provided by A.S. to the TPS on February 11, 2014, including a video statement that commenced that day at 4:29 p.m., were proven voluntary and admissible on the trial. I also ruled that all subsequent utterances and statements on February 12, 2014 have not been proven voluntary and are inadmissible. These are my reasons. An important issue is whether A.S. should have been viewed as a suspect and given the standard police caution. It is necessary to include extensive portions of the interviews on February 11 and 12, 2014 for this analysis.
EVIDENCE ON THE VOIR DIRE
Events of February 10, 2014
6Detective Constable Amy McGuire has been a member of the TPS since August 2006. She has worked in the sex crimes unit since October 2008. The Child and Youth Advocacy Centre (CYAC) is a joint task force involving the TPS and the CAS. One of the goals of the CYAC is to assist young victims of sexual abuse and prepare them to testify in court.
7On February 10, 2014, Detective Constable McGuire was assigned to work with Detective Constable Will Chen. The TPS had received information that a nine-year-old girl had disclosed to a physician at Toronto East General Hospital that her mother’s boyfriend had touched her vagina.
8Detective Constables McGuire and Chen attended the hospital at 5:50 p.m. and met with A.S., her son R., and the complainant, I.B. A.S. was nine months pregnant. Detective Constable McGuire was somewhat surprised that A.S. did not seem to be very upset. A.S. was breathing in a shallow manner but did not exhibit any other signs of discomfort.
9A.S. was cooperative with the police in the sense of facilitating access to her daughter. Detective Constable McGuire located a quiet room for the interview of I.B.
10The interview of I.B. commenced at 6:18 p.m. It was recorded on video. Detective Constables McGuire and Chen were present. Detective Constable McGuire took the lead in asking questions. Detective Constable Chen asked a few questions before the interview ended at 7:23 p.m.
11I.B.’s statement included the following information:
(i) She was nine years old and in grade four;
(ii) She lived with her stepfather, J.K., her mother, A.S., her brother, R., and sometimes J.K.’s children;
(iii) Her brother, R., is seven years old;
(iv) J.K. is 26 years old and A.S. is 27;
(v) Her mother has family in the Toronto area; and
(vi) Her birth father’s family lives in Vancouver.
12The following excerpts from I.B.’s statement of February 10, 2014 were relevant to the allegations against J.K. and also as to when A.S. may have known about the abuse of her daughter:
I.B.: … And then after when my mom’s not always home umm he does things to me, even though I don’t like it.
I.B.: Mmm so, on Saturday, he told me to take a video (sic) in the washroom. And then after he told my mom what he did when he’s not there. That’s why umm I was also crying because of (UI:02).
MCGUIRE: So, you said he told you to take a video in the washroom?
I.B.: Yes.
MCGUIRE: So, what did you use to take a video?
I.B.: His phone and after my mom, he’s like can you please pass me my phone; that was at dinner time then after my mom passed it to him after she opened it and then after there was a password and then after he grabbed it from my mom because he was hiding it. And after he deleted it and yeah (sic).
I.B.: … But like I didn’t want to do it but he was keeping forcing me. I did not wanna do it.
MCGUIRE: Mmhm.
I.B.: And then after I had to tell my mom all about it.
MCGUIRE: And what did your mom say?
I.B.: She says don’t worry we’ll get help.
MCGUIRE: Okay, when did you tell your mom?
I.B.: Umm on Saturday.
MCGUIRE: On Saturday?
I.B.: Yeah (sic).
MCGUIRE: So, when you do something then he does something for you?
I.B.: Mmhm.
MCGUIRE: Like what? What does he do?
I.B.: He buys something for me. But when I don’t wanna (sic) want to even though when I want to get something I even don’t want to do…yeah (sic). Then after then my mom went to work last time that’s the last time when it happened.
MCGUIRE: When he made you put your mouth on his penis, what did he do?
I.B.: Nothing because he kept on telling me to keep on doing it but I said I don’t want to. And after that like there’s only 5 more minutes because he told me we were going to do it for 19 minutes now. Then after now my mom started not going to work, now he stopped doing it.
I.B.: So, he started rubbing my thing after I didn’t want it, I didn’t like it. So, umm I just stayed because I want to play and after my mom was taking a shower. Umm we went into the bedroom and we umm started doing it. Then after we went out because umm (UI:01) and after my mom she came out of the shower and we were there, it was like a long (UI) after that, we were still there and after my mom founded out she started crying. After he promised me that we’re not going to do it anymore but I’m like okay. Then after he started it, he actually lied to me.
MCGUIRE: Okay, so tell me more about that, how long ago was that time when you were playing on the computer?
I.B.: Umm I don’t remember but I was 8 years old.
MCGUIRE: You were 8 and you’re 9 now.
I.B.: Mmhm.
MCGUIRE: And you said your mommy found out?
I.B.: Yes then after he stopped doing it, he told me we are not going to do it anymore. I’m like okay. I was very happy when he said that. And then after the next time when he slept, then after we started doing it again. That was making my mind why is he still doing when he promised that we’re not going to do it anymore.
MCGUIRE: So, what did mommy found out happened?
I.B.: When I was sucking his penis and that umm my mom was crying cause it wasn’t, I didn’t plan to do it I never wanted to do it but he was forcing me to.
MCGUIRE: So how did your mom find out?
I.B.: By umm taking a shower and then after I hid in the closet because he told me to. Where my mom always dresses and grabs clothes.
MCGUIRE: Mmhm.
I.B.: Yeah (sic) so that’s how my mom founded out. And then after we moved for a few months later, then one year we went to my grandma’s house to stay and then after my stepdad, to get away from him right. So, my stepdad, my mom was still thinking my stepdad was forcing my mom just to go back to get me. Then ugh my mom she had nothing to do because she was also scared of him. Umm he’s scaring me, my mom and my brother. And he’s umm my aunt also said that when I told my aunt about the story when he smacked me on my butt. And then after she’s like why did he slap you because umm R. was putting his hand there and after I closed the door when I came up. He did not let me explain about anything.
MCGUIRE: Okay, so the…we can think of the time when you were umm when mommy was in the shower and he took you into the bedroom and locked the door.
I.B.: No, actually yeah (sic) the door was locked.
MCGUIRE: Or mommy, you said mom…sorry where was mommy that day?
I.B.: She was at the washroom taking a shower.
MCGUIRE: Okay and the next time we talked about was when you were on the computer.
I.B.: Mhmm.
MCGUIRE: Right and he started touching you while you were on the computer.
I.B.: Yeah (sic).
MCGUIRE: And then mommy went and had a shower.
I.B.: No, she wasn’t at the shower that time, she was at the bedroom.
MCGUIRE: Okay and he umm made you suck his penis and then you said he told you all about what happens if something comes out of his penis. Can you tell me what he told you?
I.B.: Yeah (sic) umm I forgot what he told me. I forgot what he told me.
I.B.: And then after I asked my mom when are you going to work and she’s like, sometimes yes sometimes no and that’s why I don’t really want her to go to work.
I.B.: I forgot (UI) but I don’t really like what he does to me. And I don’t even want to learn anything about that because I’m too young and all focusing on school and playing. And he keeps on telling me umm what it is and like I just say in my head like whatever. And after I was happy when we went to my grandma’s and then umm we have to leave because my mom said we are going back there and like no I was crying. Because I didn’t want to do it anymore. Because I knew that it was going to happen again.
MCGUIRE: Did you tell your mom that?
I.B.: No, it wasn’t the day when I told my mom; it was Saturday, this, last Saturday.
MCGUIRE: When your mom found out, did you have a conversation with her?
I.B.: Yes, he was with my brother buying batteries for the car. That’s when I gave him the idea and then after when he was upstairs, my mom asked me is there anything (UI:02) I didn’t want to tell my mom because he was scaring me and I didn’t want to tell her like nothing. But after when (UI) went upstairs I had to tell my mom, just so I can just get over with it, yeah (sic).
MCGUIRE: Okay but you said there was the time that she knew about it, right?
I.B.: Mmhm.
MCGUIRE: When you were 8?
I.B.: Yes, she was, I think I was 8 or 9. She was crying and crying. Then after he had a conversation with my mom but he never told me why he wants to do it. And he’s like…because actually he did he’s like because I love you but I’m like in my head if he loves me then why won’t he stop if I don’t want to do it. It doesn’t mean he loves me; it means that he just wants to do it for himself. Then after today I told my mom that if someone does that to your child, a stepfather or anything that means they don’t really love you right. And after she said yes and then after that’s why I didn’t really like love him. He asks he if I love him and I say yes because I don’t want to hurt his feelings but I don’t actually.
MCGUIRE: Mmhm. Okay, do you remember what time of year it was when mommy found out?
I.B.: Umm 2012.
MCGUIRE: 2012, so not last year?
I.B.: No.
MCGUIRE: Because it’s 2014 right now.
I.B.: Mmhm.
MCGUIRE: Okay.
I.B.: (UI) I think it was when I was 8, it happened 2012.
MCGUIRE: Do you remember what the weather was like out?
I.B.: It was night time.
MCGUIRE: Do you remember if it was cold or warm?
I.B.: I forgot.
MCGUIRE: Okay, umm was it close to any of your birthdays or holiday?
I.B.: It happened in December when it was almost going to be Christmas.
MCGUIRE: That’s when mommy found out?
I.B.: No, that was like I think it was September maybe. That’s when it started happening.
MCGUIRE: So, how did mommy know that it was happening?
I.B.: Umm she knew there was something weird going on. Umm she told me that’s why she hurries up and takes a shower, so he doesn’t do it to me and that’s why she says I’m when she was taking a nap but she wasn’t, so she could get more evidence umm about what’s going on. And after she was cooking, she was looking after I was looking at her. She knew something was going on because she saw him giving me the phone. Then after I didn’t really want to do it but I had to. I had a plan in my head get a pan and smack him with a pan. And that’s funny. And also when I had another plan that umm when he comes out from somewhere, or the door I’d get the pan because I knew my mom was going to tell the police; I’d get the pan say hi and the pan’s right where his head is and then bring him to the police car. That’s funny.
MCGUIRE: Okay, I guess what I’m trying to ask is what did you tell mommy had happened back in 2012.
I.B.: I told her this year. Umm so, when I told her I told her everything he did to me and then after I told her that I don’t like it. Then after I told her that’s why we went to Yorkdale because he had to give me an exchange and that’s why I got a lot of elastic bands from the Rainbow Room.
MCGUIRE: Mmhm.
I.B.: And that’s why I got my Rainbow Room, umm yeah (sic).
MCGUIRE: So, when did you tell mommy?
I.B.: Umm on Saturday.
MCGUIRE: Like this Saturday.
I.B.: Yes.
MCGUIRE: Did mommy know before this?
I.B.: Umm yes because she knew that something’s happening. And now she knew something’s happening and I was going to warm my mom but I couldn’t because I had to go to school. Then he asked my mom to go get his phone in the car and my mom’s like no because she didn’t want anything to happen to me.
MCGUIRE: When was this?
I.B.: Yesterday.
MCGUIRE: Oh okay.
MCGUIRE: So, what, you said mommy had an idea things were going on before; had you told her he asked you that he made you suck his penis? Had you told her that?
I.B.: No, I never told her that but I told her that Saturday.
MCGUIRE: Okay so, until Saturday, you hadn’t told mommy?
I.B.: On Saturday, I told my mom everything all about it and after she called our friend to get some help and yeah (sic) she told me she has a plan so he could stop.
MCGUIRE: Okay have you ever had your other than the time he made you go into the bathroom with his phone, has he ever taken a picture or video of you when he’s touching you or –
I.B.: No.
MCGUIRE: No.
I.B.: But I did take a picture of my thing when he went in the bedroom.
MCGUIRE: Just once?
I.B.: More than once.
MCGUIRE: He took a picture?
I.B.: Yeah (sic) but then after he told me I’ll delete it. And I promise I did not want to do it and I’m like okay. Then I had to tell mom because it was very important to tell her. Because she told me the first time we went back that she told me tell me everything what he does, if he does if it’s not good and almost right away as soon as possible.
MCGUIRE: Okay, so what did you tell mom?
I.B.: So, I told mommy, yeah (sic) okay, then after I didn’t really tell her because I had a plan to tell her and then when she asked me I told her about everything. I was planning to tell her the next day but I’m like no, not at the bus stop. I just told her right away and I was crying and crying because of it.
MCGUIRE: And when was that?
I.B.: That was Saturday and mommy told me don’t go near him and when he has a blanket don’t go under it with him but he does force me to do that and umm yeah (sic).
CHEN: Okay, so are you completely naked at those times when you take the pictures?
I.B.: No.
CHEN: You have clothes on?
I.B.: I only have my clothes on but I only take off my underwear and pants.
I.B.: And I wanted to delete it but after I was thinking if I delete it, he will say go take another video. And then after umm I was thinking this in my head that umm if my mom takes it and gives it to him, I’ll be fine but I wasn’t. My mom came and looked at his phone; she was trying to find some evidence.
CHEN: Mmhm.
I.B.: That was there because she knows something was going on.
CHEN: So, when was the last time you remember taking pictures?
I.B.: I forgot.
CHEN: Was it a long time ago?
I.B.: Mmhm.
CHEN: When was the last time you saw on his phone those videos?
I.B.: Umm after I did it.
CHEN: Do you think he still has those videos on his phone?
I.B.: No.
CHEN: No, how do you know?
I.B.: It’s because my mom when she tried to take his phone and then after they were fighting over this my mom she’s like, he’s like, umm what did you tell; what did you write on your phone to show I.B. and then after he found that, after he’s like why can’t just you tell everyone, the family the whole thing. After she’s like because I just wanted attention but she was actually lying so she won’t get in trouble because if she gets in trouble, she had this bruise in her eye because umm when he slapped over here. I told my aunt about that and then after umm yeah (sic) and then after my mom, she was actually trusting my stepdad but she wasn’t supposed to. And my aunt told my mom that he might do something with I.B., something like those stuff that I told you. And my aunt was right because she knew by his face umm yeah (sic).
CHEN: Okay.
I.B.: And I never told my aunt or anyone else.
CHEN: And would he be completely naked as well or just his pants?
I.B.: No, just his pants a little off.
CHEN: Little off, so it’s not all the way down. It’s just taken down.
I.B.: And when I also told my mom and she said don’t go near him, don’t go near him don’t go under the covers because she doesn’t like that because she knows that and I also know that he’s going to do it to rub my thing yeah (sic).
MCGUIRE: When did mommy say that?
I.B.: When I told her.
MCGUIRE: On Saturday?
I.B.: Yeah (sic).
CHEN: No, okay. Besides telling your mom, have you told anyone else?
I.B.: Umm no.
I.B.: And he keeps on forcing me but it’s not really what…it’s not what you want.
CHEN: And is that during when you go to bed?
I.B.: Umm no. When my mom goes to work.
CHEN: To work, oh so, during the day?
I.B.: Mmhm.
13All of the events appeared to have occurred in the family home. A.S. and her son, R., were potential witnesses against J.K. and would have to be interviewed. The information from I.B. referred to sexual abuse against herself and domestic violence against A.S.
14At the conclusion of the interview of I.B. on February 10, 2014, Detective Constable McGuire had specific information that A.S. was informed of the sexual abuse on February 8, 2014. There was also less definitive information that A.S. may have known of the abuse much earlier. Detective Constable McGuire testified that at that point she did not believe that A.S. could have known of the abuse for a longer time and not protected her daughter. She did not view A.S. as a suspect for any offence. There were grounds to charge J.K. with various sexual offences against I.B.
15Detective Constable McGuire wanted to speak to A.S. as a potential witness but decided it was not ideal to do so at the hospital. Patricia Williams of the CAS drove A.S. and her two children to the police station. J.K. had been contacted to surrender himself. A.S. and her children were moved to a back room to avoid any possible contact or sighting of J.K. when he arrived at the station. A.S. allowed Detective Constable McGuire to use her phone to contact J.K. at 9:45 p.m. He confirmed that he was en route to the station.
16A.S. was adamant with the police that her family not be contacted or informed about the situation. The police and CAS felt it would be unsafe for A.S. and her children to go home until J.K was in police custody.
17J.K. arrived at the station at approximately 10:00 p.m. He was interviewed extensively and admitted various sexual offences against I.B. He did not provide any information that implicated A.S. in any way.
18With J.K. in custody, the police felt it was safe for A.S. and her children to return to their home. A.S. promised that they would not touch or interfere with any electronic devices in the home. The police would be checking any computers and phones for evidence against J.K. Detective Constable McGuire testified that if A.S. was in any way a suspect at that time, the police would not have allowed her to return home to the crime scene. A.S. expressed concern for J.K. She and her children were driven home by the police close to midnight.
Events of February 11, 2014
19In the afternoon of February 11, 2014, A.S. and her children attended the offices of the CYAC at the request of Detective Constable McGuire. I.B. was to be examined by a registered nurse. A.S. agreed to that and was present as I.B. was examined. A follow-up appointment was arranged through A.S.
20Detective Constable McGuire spoke to A.S. outside the examination room. She did not make contemporaneous notes of this conversation but recalled it. She was surprised that despite the circumstances and criminal charges against J.K., A.S. continued to say she was concerned for him. She said she missed him and wanted to see him. Detective Constable McGuire was upset to hear of her concern for J.K. “despite what he had done”.
21A.S. agreed to be interviewed on video in a room provided by the CYAC. Detective Constable McGuire viewed her as a witness in the case against J.K. Detective Constable McGuire and A.S. were the only ones in the room. Patricia Williams of the CAS and Detective Barb Douglas watched the interview in real time in a separate room.
22The interview commenced at 4:29 p.m. The video was played on this application and a sixty-five page transcript was filed as an exhibit.
23At the outset of the February 11, 2012 interview, A.S. was told the following:
(vii) The statement would be under oath or affirmation;
(viii) She did not have to make the statement and had the right to choose whether to do so or not;
(ix) There were potential consequences if she lied or misled the police while making the statement and she could be liable to criminal prosecution; and
(x) She might be a witness at trial where her statement could be used against her if she recanted or claimed it was false.
24A.S. indicated that she understood. The applicant has accurately summarized the content of the interview at paras. 16-26 of her factum as follows:
The interview lasted approximately 1.5 hours. The Respondent, although nine months pregnant and at times slightly out of breath, appeared calm and relaxed throughout the interview. The Respondent’s first language is not English, but she communicated with relative ease. DC McGuire was soft-spoken and polite with the Respondent from start to finish.
During the first half of the interview, the Respondent discussed how she met J.K., and described the progression of their relationship. She described moving into J.K.’s apartment alone, and then having her children move in with them in November 2012.
The Respondent described a happy beginning to her relationship with J.K., but explained to DC McGuire that when her children moved in with them, things started to deteriorate. She described controlling and emotionally abusive behaviour by J.K. She then detailed instances of physical abuse from J.K. She also described physical disciplining of her children by J.K., which made her feel uneasy.
Still during the first half of the interview, the Respondent told DC McGuire the password for J.K.’s laptop computer, which was kept in the family home: “renagades”. The Respondent indicated that she was allowed to use this computer, but that she used it only occasionally.
Approximately 35 minutes into the interview, DC McGuire broached the topic of I.B.’s sexual abuse for the first time. DC McGuire asked the Respondent whether she had a ‘feeling’ that anything was going on and if so, when that started. The Respondent readily volunteered the following response:
She initially trusted J.K., since he had children of his own and appeared to be a good father
Her own children learned a lot from J.K., and they all had fun together
However, one night, when she and J.K. were talking ‘dirty’, he mentioned wanting to see I.B.’s ‘thing’. The Respondent asked why. He did not elaborate. The Respondent told him that she didn’t want him to see I.B.’s thing
Around February 2013, the Respondent had this ‘feeling’, ‘like what are you going to do to my daughter’, because he had been talking about it, and it kind of worried her. She and J.K. had fought about it, and she had warned him never to ‘do that thing he had talked about’
At this point in the interview, DC McGuire asked, ‘what did he say?’ The Respondent answered that ‘he said he wouldn't promise that he wasn't going to do that, and that if he did that he wouldn't tell me’. DC McGuire then asked whether J.K. had specified what he wanted to do. The Respondent provided the following answer:
J.K. talked about I.B.’s private thing. She was not really sure what he said he wanted to do. She knew he wanted to do something to I.B. that wasn’t good, so she warned him never to do that
The kids were often alone with him when she was at work, especially on weekends. She had a ‘feeling’ and was not comfortable. She was worried while at work so always called to check up on J.K.
In April 2013, she ‘caught’ him: she had been taking a shower with him and he exited before her. She let the shower run but left the washroom because she could ‘sense already’. She could not find I.B. and she ‘already had that heartbeat’ so she knocked on the bedroom door. J.K. neglected to open the door right away, so she knew that something was wrong. When he opened the door he still had only a towel around him, and pretended as though nothing was wrong, asking to make love with the Respondent. The Respondent asked where I.B. was. The Respondent was ‘shaking’, sensing that something was wrong. The Respondent found I.B. hiding in the bedroom closet. I.B. did not initially respond when the Respondent asked her what she was doing there. J.K. would not tell her either. The Respondent asked I.B. again, at which point I.B. mentioned something about ‘suck’. The Respondent knew this meant ‘his private thing’. The Respondent confronted J.K., who apologized and told the Respondent he loved her
The Respondent added that ‘this was the first time it happened’.
DC McGuire inquired at this point whether it happened another time, to which the Respondent replied:
He did not think it happened again because J.K. promised it would not
After going on a trip to the Philippines, the children stayed with their aunt (the Respondent’s sister). This was fine with the Respondent, because she knew they were not safe with her (the Respondent)
After J.K. promised he would not do ‘that’ anymore (‘the hitting and everything that happened to I.B.’), the Respondent decided that the children would come back to live with them again. The Respondent knew it was not ‘right’ and that it was not ‘kinda safe’, but she decided to trust J.K. and to give him a chance to change
When the children returned home, the Respondent was ‘still observing’ J.K., in the light of what had happened. She then started to ‘feel something’, like a mother’s instinct, that there was something wrong. This feeling still bothered her every time she went to work
More recently, because she had stopped working and was home most of the time, the Respondent noticed that I.B. would often follow J.K. into various rooms in the apartment, and that they would be silently alone together. This made the Respondent suspicious
On Saturday February 8, 2014 (three days prior), the Respondent noticed suspicious gesturing by J.K. directed at I.B. I.B. went into the washroom and then came out with J.K.’s cellular phone, handing it to him. The Respondent could see that I.B. looked unhappy. The Respondent wanted to see what was on that phone, but J.K. refused to let her see it. She knew that something was wrong, and could tell that the video camera application was open
After this happened, the Respondent confronted I.B., asking her, ‘did daddy do that thing again like last time?’ I.B. eventually told her ‘everything’
At this point, for the first time in twenty minutes, DC McGuire interjected, asking what the Respondent meant when she said that I.B. told her ‘everything’. The Respondent answered:
I.B. said that ‘daddy rubbed her thing’ while the Respondent was taking a nap that day
I.B. said that daddy had later asked her to take a video of her ‘thing’ (privates) in the washroom
The Respondent said or thought, ‘oh my god’ and couldn’t believe it
The Respondent had trusted him and given him a chance, because they were about to have a baby
DC McGuire asked the Respondent if there was anything else, to which the Respondent replied:
She (the Respondent) asked I.B. when this had happened. I.B. responded that it was when she (the Respondent) was at work
I.B. said the sucking thing happened last month, and that that was the last time
I.B. said that J.K. most often rubbed her ‘thing’
The Respondent asked if this happened while J.K.’s own kids were home (J.K.’s children often visited and stayed over). I.B. responded in the affirmative, providing specific details about one instance when J.K. daughter was in another room
I.B. told the Respondent that she really did not want to do this, and that J.K. was forcing her
The Respondent commented that ‘she can't do anything because she is just a child’
The Respondent described a ‘plan’ she had formulated the next day (Sunday, February 9), explaining that she ‘couldn’t take this anymore’ and ‘needed to talk to someone about my situation’. The Respondent told I.B. that she would be asking for help and disclosing what had happened to her friend and downstairs neighbour, D. I.B. initially objected but eventually agreed.
The Respondent told D. everything that she had been ‘hiding’, then explained ‘...not hiding but ...it's been a year I've been holding onto this situation’
The following day (Monday, February 10), D. convinced the Respondent to take I.B. to the hospital, which she did. D. was the one who decided that J.K. should be arrested
The above information was relayed by the Respondent over the course of nearly fifteen minutes without interruption by DC McGuire. Once the Respondent had provided this information, DC McGuire left the room for approximately four minutes to consult with her partner, DC Chen. She returned and asked a number of follow-up questions about topics such as the Respondent’s work schedule, the family computer, and pornography sites accessed by J.K.
Before concluding the interview, DC McGuire asked the Respondent why she did not go to the police in April 2013, when I.B. first reported that she had sucked on J.K. The Respondent answered that it was because she cared for J.K. and about her kids, because she was confused, and because she was ‘going to plan this thing until it comes to this point’, to determine ‘if he still can be trusted or not’. When DC McGuire commented that this meant taking a risk, the Respondent agreed, adding that ‘when I knew what happened Saturday, I said this needs to stop; I know it's hard for me but this needs to stop’. The interview ended at this point, at approximately 6 p.m.
25Detective Constable McGuire testified that she did not view A.S. as a suspect through the completion of this interview. A.S. was an important potential witness against J.K. She provided information that related to her daughter but also domestic abuse directed towards herself. That was consistent with some of the information provided earlier by I.B. Detective Constable McGuire planned to follow-up on the domestic abuse allegations but her primary focus was on the sexual abuse of I.B. A.S. seemed to fear J.K. but also defended him in part.
Events of February 12, 2014
26The issue of when A.S. knew that her daughter was being abused was ancillary in the interview of February 11, 2014. It was front and centre in the interview of February 12, 2014.
27At approximately 2:20 p.m., Detective Constable McGuire met with Detective Douglas and Cindy Ross of the CAS. They reviewed the video statement of I.B. from February 10, 2014. They discussed adding pornography-related charges to the sexual offences already laid against J.K.
28Detective Constable Chen had obtained a search warrant for the home shared by J.K., A.S. and her children. The search warrant was executed at approximately 5:30 p.m. A.S. was fully cooperative and assisted the police in locating certain items they were looking for. A number of electronic items were seized. Detective Constable McGuire escorted A.S. and her children out of the apartment so the search warrant could be executed. They went to the apartment of a friend of A.S.’s on another floor.
29At approximately 5:45 p.m., Detective Constable McGuire and Cindy Ross conducted a brief interview with A.S.’s younger child, R. Nothing of investigative interest was revealed in that interview.
30At approximately 6:25 p.m., Cindy Ross began an interview of A.S. This was in a room inside the apartment of A.S.’s friend. Detective Constable McGuire was present. It was audio recorded. A.S. was cooperative and agreed to be interviewed. Detective Constable McGuire introduced Cindy Ross at the outset and said they were “just having a little discussion on behalf of Children’s Aid at this point”. Cindy Ross identified herself as “the lead Children’s Aid worker with this particular investigation”.
31The questions from Cindy Ross went directly to what actions, if any, A.S. took when she learned of the abuse of I.B. many months before the matters were reported to police in February of 2014. The applicant has accurately summarized the content of the interview at paragraphs 35 - 47 of her factum:
Ms. Ross advised the Respondent that she wanted to have a discussion with her on behalf of the CCAS. She told the Respondent that she had reviewed I.B.’s statement, and that she wanted to clarify a few things from the statement. She asked the Respondent to ‘walk her through’ the decisions made when I.B. came to her (the Respondent) in April.
The Respondent repeated almost exactly what she had told DC McGuire in her initial statement, namely that:
The Respondent had been ‘observing’ J.K. ever since he had mentioned I.B. during their ‘dirty talk’ in April 2013
The Respondent ‘caught them’ later in April, when she found I.B. hiding in the bedroom closet after her shower. J.K. would not tell her what was going on so she asked I.B., who ‘mentioned about the suck word’. This meant to the Respondent that J.K. had told I.B. to suck his ‘thing’
The Respondent confronted J.K., telling him that she had already warned him not to do that after the ‘dirty talk’ incident earlier that month. J.K. promised it would not happen again. She did not fully believe or trust him, but wanted the relationship to move forward
Between April 2013 and February 2014, she did not ask and I.B. did not disclose further abuse. Everything seemed ‘okay’ until she started to get a ‘feeling’ again
On Saturday February 8, 2014, J.K. followed I.B. into the washroom, then the bedroom. The Respondent was listening and there were no sounds of conversation coming from the bedroom. The Respondent then thought to herself either, ‘oh, what’s happening’ or ‘oh, it’s happening’; and added ‘so I’m just observing’ (it is difficult to discern from the audio whether the Respondent said ‘it’s happening’ or ‘what’s happening’, although DC McGuire recorded it in her notes as ‘oh, it’s happening’)
After the Respondent disclosed that she was wondering what was happening in the bedroom (or was thinking that ‘it’ was happening) and that she was ‘just observing’, Cindy Ross asked her whether she would go into the room. The Respondent replied, ‘no’. This was twelve minutes into the interview.
Upon hearing the Respondent’s last comments, DC McGuire put a stop to the interview. She told the Respondent that she was going to caution her and asked her to stop talking. She then advised that she was going to consult with her supervising officer, Det. Douglas. Although she did not say so to the Respondent at that moment, DC McGuire interpreted the Respondent’s last comments as an admission of awareness of I.B.’s sexual abuse.
DC McGuire left the room, with the audio-tape still running, for approximately ten minutes.
At 6:46 p.m., DC McGuire returned with Det. Douglas, at which time the latter cautioned the Respondent that what she was saying would be leading into a criminal investigation against her. Det. Douglas provided the Respondent with her rights to counsel. The Respondent indicated that she wanted to speak with duty counsel, and the interview was discontinued in order for her to do so.
The interview resumed at 7:12 p.m., after the Respondent had spoken with duty counsel. The Respondent declined to say anything further. The recording was stopped three minutes later.
The Respondent was given a chance to speak privately with the CCAS after her second statement. The Crown is not seeking to admit this conversation into evidence.
At approximately 7:30 p.m., the audio police interview re-commenced. Det. Douglas told the Respondent that she would like to ask her more questions. The Respondent declined to speak any further with the police. DC McGuire explained her interpretation of what the Respondent had said just prior to her putting a stop to the interview, namely that the Respondent answered ‘no’ when Cindy Ross asked if she would have gone into the bedroom when the door was closed, knowing that something was going on. Det. Douglas later explained to the Respondent that this was new information, not provided in the Respondent’s first statement.
Det. Douglas asked why the Respondent failed to put a stop to things if she knew that something was going on. The Respondent declined to answer any further questions. She also declined offers of medical attention, and told Det. Douglas that she just wanted to be left alone. The interview ended at 7:54 p.m.
The Respondent’s [Mental Health Act R.S.O. 1990, c. M.7 apprehension
After the conclusion of the second interview, DC McGuire informed the Respondent that she would be interviewing the Respondent’s family members in furtherance of her investigation. The Respondent became extremely upset about this proposition, and began to grab at things. She stated repeatedly that she wanted to kill herself and that she could not handle this. She was crying hysterically. DC McGuire determined that the Respondent would need to be apprehended under the Mental Health Act and called for an ambulance.
During this incident, the Respondent made further utterances to Det. Douglas which the Crown does not seek to admit into evidence, given the Respondent’s unstable mental and emotional state at the time.
As a result of the Respondent’s apprehension, her children were placed in the care of the CCAS.
THE LAW
32The onus is on the Crown to prove voluntariness beyond a reasonable doubt. The analysis as to voluntariness of statements is contextual. A trial judge is to consider all the circumstances surrounding the making of the statements to determine whether there is a reasonable doubt about the statement’s voluntariness. Relevant factors include the existence of threats, promises or inducements, the lack of an operating mind, oppressive conditions, or police trickery of such a nature that it denies the accused’s right to silence or shock the community. A further factor is the manner and quality in which the statement was recorded: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 47-67.
33Even where a person is a suspect, the absence of a standard caution is only one factor to be considered in the voluntariness analysis. The presence of a caution does not lead automatically to the conclusion that the statement is voluntary. The absence of a caution can be an important factor but it is not decisive. All the circumstances must be scrutinized carefully: see R. v. Bottineau, 2011 ONCA 194, 269 C.C.C. (3d) 227, at para. 88; and R. v. Esposito, (1985) 1985 CanLII 118 (ON CA), 24 C.C.C. (3d) 88 (Ont. C.A.)
34In R. v. Morrison, [2000] O.J. No. 5733 (S.C.) at para. 50, Justice Trafford defined “suspect” in the context of an investigation:
A person is a “suspect” when, objectively viewed, the information collected during an investigation tends to implicate him/her in the crime. It is an objective test, not a subjective one, that is to be applied to the totality of the information. An objective test better cares for the public interest in imposing duties on interrogating officers when the coercive power of the state is brought to bear on an individual in the context of a custodial interrogation. The frailty of the information collected during the investigation, if any, is to be considered in assessing its tendency to implicate a person. … The test is based upon information as opposed to evidence. It is to be distinguished from probable cause and prima facie proof. More often than not a competent officer diligently considering the information known to him/her will form an actual suspicion where there are objective grounds for doing so. A suspicion is to be distinguished from a belief that a person committed a crime.
In R. v. Heaney, [1992] 2 V.R. 531 at 548 (S.C.A.D.) the Court noted that suspicion is not a state of mind founded on speculation “or…‘mere idle wondering’… but is concerned with a state of mind arrived upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence is created…”. Lastly, see Ormiston J. in Commissioner for Corporate Affairs v. Guardian Investments Pty. Ltd., [1984] V.R. 1019 at 1025 (S.C.) where he said:
…the word ‘suspect’ requires a degree of satisfaction, not necessarily amounting to belief, but at least extending beyond speculation as to whether an event has occurred or not. …
35In R. v. Worrall, [2002] O.J. No. 2711 (S.C.), the investigators initially had no reason to caution Mr. Worrall when they spoke to him in relation to the death of his friend. However, Watt J. concluded, at paras. 104-6, the police officers should have told Mr. Worrall that his answers could be used in a prosecution against him once they had information that “would alert any reasonably competent investigator to the realistic prospect” that the deceased’s death may have been associated with an unlawful act committed by the person being interviewed, even though he was not arrested or detained.
36In R. v. Chui, 2015 ONSC 552, Justice Clark provided a useful summary of the law relating to when the police should caution a suspect:
In R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 32, Charron J., speaking for the majority, adopted as “a useful yardstick for the police on when they should caution a suspect” the following passage from René Marin, Admissibility of Statements (9th ed. (loose-leaf)), at pp. 2-24.2 and 2-24.3:
The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence. An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she would do if the person attempted to leave the questioning room or leave the presence of the officer where a communication or exchange is taking place. If the answer is arrest (or detain) the person, then the warning should be given.
It is generally accepted that the police are not required to caution a person with whom they speak unless they suspect the person of criminal activity, but the need to caution a person must be based on more than “mere speculation…or…even…reliable information that may warrant further inquiry”: R. v. A.D., [2003] O.J. No. 4901 (S.C.J.), at para. 75. Further, in deciding whether, in a given instance, the police ought to consider an accused to be a suspect, and, thus, ought to caution him, the court should not be overly expansive because “[t]o cast the net wider than this is to overemphasize an individual’s right to silence at the cost of stifling legitimate police investigation”: R. v. Carroll, [2009] O.J. No. 3993, 71 C.R. (6th) 169 (S.C.J.), at para. 72.
37A.S. does not allege that there were promises, threats or inducements that would vitiate voluntariness. She submits that before A.S. was interviewed on February 11, 2014, she was or should have been viewed as a suspect rather than a witness. This is based on the content of the interview of I.B. on February 10, 2014 that implicated A.S. with knowledge of the abuse of I.B. long before the police and CAS became involved. A.S. submits that the failure to properly and fully caution her before the interview of February 11, 2014 in the particular circumstances should lead this court to find that voluntariness has not been proven beyond a reasonable doubt. A.S. did not testify on the voir dire and had no obligation to do so or present evidence.
38The focus of this interview was clearly on the conduct of J.K. until the very end. That is when Detective Constable McGuire asked why A.S. did not go to police in April 2013. The questions and answers before that point were attempts to clarify the information provided by I.B. as to how long the abuse had gone on and the nature of the acts.
39In sexual assault investigations with child complainants, it is important for the police to look for confirmation or elaboration of information provided by the child. This is often done by interviewing adults who may be able to clarify information provided by the child. That is what happened in the interview of A.S. on February 11, 2014.
40The information from nine-year-old I.B. as to when her mother knew of the sexual abuse was unclear. At one stage, I.B. said her mother “knew about it” when I.B. was eight or nine years old. That could have been in 2012. I.B. said her mother “knew something weird was going on”, and that her mother told her she wanted to get more evidence. However, I.B. also said more than once that she did not tell her mother anything specific about the abuse until “the Saturday”, being two days before I.B. was interviewed by police. Detective Constable McGuire felt that A.S. had suspicions of earlier sexual abuse by J.K. but not “concrete proof”. Detective Constable McGuire confessed she may have been naïve in thinking that no mother would have allowed this to happen to their child.
41The caution read to A.S. at the outset of this interview alerted her to the seriousness of the process, her choice as to whether to provide a statement and the potential implications of providing false or misleading information. She was not told the following components of the standard police caution to a suspect:
(i) That she might be charged with a criminal offence, and
(ii) That she has the right to remain silent and that anything she said during the interview could be used against her if she is charged with an offence.
42A.S. was not detained during her interview on February 11, 2014. There is no basis to find or infer that she felt any psychological detention. Detective Constable McGuire testified that A.S. could have terminated the interview and left the room if she wished.
43Detective Constable McGuire said that A.S. would have been a suspect if there were reasonable grounds to believe that she had committed an offence.
44At the conclusion of the interview of A.S. on February 11, 2014, Detective Constable McGuire stepped out to speak to her partner, Detective Constable Chen, and her supervisor, Detective Douglas. They decided there were no further questions for A.S. at that time. There was no mention of possible charges against A.S. Detective Constable McGuire was surprised at the demeanor of A.S. but as of the end of the interview felt she appeared to have acted in the best interests of her child.
45The police allowed A.S. to return home with her two children on February 10, 2014 on her promise that she and the children would not touch or tamper with any of the electronic items on site. A.S. submits that the reason she was allowed to go home late on February 10, 2014 with her children is that she was not a flight risk. This submission is based on the fact that A.S. was nine months pregnant and not aware that she was in fact a suspect. I disagree.
46If the police had viewed A.S. as a suspect based on the interview of I.B. on February 10, 2014, it is highly unlikely they would have allowed her to return home that night with her two children. All of the alleged offences by J.K. occurred in the home. I.B. had told police about pornography on a computer that J.K. had resorted to and forced I.B. to watch. The police planned to seek and execute a search warrant on the premises. The police had not yet interviewed A.S. or I.B.’s younger brother related to events within the home.
47The ultimate caution to A.S. on February 12, 2014 and the charges later laid against her were based on the belief that A.S. failed to protect I.B. in a timely way out of misguided loyalty to J.K. If the police suspected her of that on February 10, 2014, they ran distinct risks in allowing her to return home that night. She could have interfered with or tried to dispose of potential evidence against J.K. She could have tried to influence I.B. and her younger brother, R., as to what information they would supply to the police. The police did not suspect her as of February 10, 2014, and indeed trusted A.S. to the extent that they were satisfied that she would not interfere in the investigation based solely on her promise.
48I do not agree with the submission that the questions as to when suspicion turned into knowledge of the abuse were a form of trickery. At that stage, Detective Constable McGuire was trying to clarify time lines for certain events described by I.B. These questions were aimed at bolstering and clarifying the evidence of I.B. and were not directed towards A.S.’s potential liability.
49I accept the evidence of Detective Constable McGuire that she did not view A.S. as a suspect through the completion of this statement. However, on an objective basis, the admission by A.S. that she knew of the abuse in April 2013 implicated her in a crime and she should have been cautioned at that time. She had received a caution at the outset as to her status as a potential witness, but was not told that what she said to police could be used against her as an accused.
50The absence of this further caution is a factor but is not determinative on the issue of voluntariness. There was no suggestion of threats, promises or inducements. There was no indication that A.S. did not have an operating mind during the interview.
51I have carefully reviewed the video statement of February 11, 2014. The entire situation must have been very stressful for her. She was nine months pregnant, and her spouse was now under arrest for sexually assaulting her daughter. She was clearly responsive to the questions asked. At times she gave extended responses. She was calm and cooperative throughout. A.S. and Detective Constable McGuire were both focused on any and all information about the family dynamic and the interaction of J.K. and her daughter.
52After a careful review of this video interview, I am satisfied that the responses of A.S. were voluntary as defined by the Supreme Court of Canada in Oickle. The utterances and statements provided by A.S. through the completion of her interview of February 11, 2014 are admissible on the trial.
Audio Statement of A.S. dated February 12, 2014
53The interview of A.S. on February 12, 2014 was focused on her conduct. Before it commenced, Detective Constable McGuire had information from I.B. and A.S. that A.S. knew of the sexual abuse of her daughter from February or April 2013. At the outset of the interview of February 11, 2014, A.S. was at least cautioned as a potential witness. She was told she did not have to give a statement. She was told of the potential implications if she provided false information or misled police. A.S. did not receive any form of caution at the outset of the interview on February 12, 2014. She was clearly a suspect and should have received a full caution, including her right to remain silent and that anything she said could be used against her in a prosecution.
54The lack of any form of caution to A.S. on February 12, 2014 was exacerbated by the introductory comments of Detective Constable McGuire. A.S. was told that this would be “just a little discussion on behalf of Children’s Aid at this point”. Those words were a significant diminution of the potential jeopardy faced by A.S. in that interview. Those words reasonably conveyed the message that the questions to follow from Cindy Ross of the CAS were unrelated to the ongoing criminal investigation. This was potentially misleading information to A.S. before she proceeded to answer questions that clearly related to her as a suspect.
55In these particular circumstances, the combination of the failure to administer any form of caution plus the ratcheting down of the potential jeopardy of A.S. leaves me with reasonable doubt as to the voluntariness of the answers provided. I am not satisfied that any portion of the utterances or statements made by A.S. on February 12, 2014 have been proven voluntary. Thus, they are all inadmissible.
B. P. O’Marra, J.
Released: April 21, 2016
CITATION: R. v. A.S., 2016 ONSC 2626
COURT FILE NO.: CR-16-10000139-0000
DATE: 20160421
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
A.S.
Defendant
RULING ON THE ADMISSIBILITY OF STATEMENTS
B. P. O’Marra, J.
Released: April 21, 2016