CITATION: R. v. Ferguson, 2016 ONSC 310
COURT FILE NO.: CR-13-05-00
DATE: 2016-01-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Graham, Counsel for the Director of Public Prosecutions
- and -
SIOBHAN FERGUSON AND STEPHANIE AMANDA PEARCE
G.P. Logan, Counsel for Siobhan Ferguson
A. Goodman, Counsel for Stephanie Pearce
HEARD: October 5, 6, 7, 8, 2015
R U L I N G S
RE: VOLUNTARINESS OF STATEMENTS & SECTION 10(B) CHARTER OF RIGHTS APPLICATION
Information contained herein is prohibited from publication by order of The Honourable Mr. Justice Joseph Michael Fragomeni
FRAGOMENI J.
[1] The Crown seeks to have admitted into evidence at this trial statements made by each of the accused while being processed at Customs by the Canada Border Service Agents. At the outset of submissions by counsel, both counsel for the accused confirmed that they were not challenging the voluntariness of their respective clients’ statements taken on video by the RCMP on May 1, 2012. These statements were taken by Constable Wiseman.
[2] The issue relating to voluntariness involves the utterances made to the Canada Border Service Officers (CBSO).
[3] The accused Siobhan Ferguson also alleges that her Section 10(b) rights were violated in the time period between 16:43 to 17:21 and on that basis seeks an exclusion of her statements made during that time period to CBSO Yule and CBSO Mannella.
Review of Voir Dire Testimony
CBSO Brian Emanuel
[4] On May 1, 2012, CBSO Emanuel was on duty at Terminal 3 at the Toronto Pearson Airport. CBSO Mannella and CBSO Emanuel were working at the Secondary Inspection area. CBSO Emanuel called Ms. Pearce over to the counter and asked her the following questions:
Are these your bags?
Did you pack them yourself?
Are you aware of the contents?
Is there anything sharp in the bags?
[5] Ms. Pearce responded that the bags were hers; her fiancé/boyfriend packed them for her; she was aware that she is responsible for the contents; there was nothing sharp in the bags.
[6] CBSO Emanuel asked more questions and began to examine the bag. The bag was locked but Ms. Pearce’s travelling companion, who was also close by at the secondary counters, provided the key and he opened the bag. He emptied the first of two bags. He felt something so he decided to x-ray the bag. He also probed the bag and conducted a NIK test which revealed the presence of cocaine. Ms. Pearce was arrested for importing drugs and she was read her rights to counsel and cautioned.
[7] Prior to being taken to a phone to speak to counsel, Ms. Pearce stated “Sir, what does this mean, I can’t travel? I didn’t know what was in there”. Nine minutes later she is taken by CBSO Featherstonehaugh to speak to counsel.
[8] At 17:55, Ms. Pearce returns to CBSO Emanuel. He continues to examine her bag. He also seized a cell phone. He asked Ms. Pearce more questions while he was examining the bags:
Where did you go?
Reason for travel?
Who purchased your ticket?
Is she working?
[9] Ms. Pearce advised she was in school. Her reason or travelling was a birthday for Ms. Ferguson and an engagement party for Ms. Ferguson’s brother.
[10] The cell phone revealed the following text messages:
BSO MANNELLA advised that he had read several text messages to a “William” on FERGUSON’s cell phone and that he had observed them incidental to arrest. They were as follows:
“I have a k shit”
“wat to do”
I don’t trust him n he hasn’t paid me”
“Well his brother I’m dealing wit now”
“I said if I dn’t see my mom he won’t see this case”
“Cash before I leave Jamaica”
“I haven’t seen my money”
“He saying once I land my money so he sehh”
“He know once I get there. I’m not getting my money so if ur ppl dnt get me I’m taking a taxi home”
“advice”
Me – “ok tonight we put the ish in the suitcase but Jordan ish gonna make it to Canada.”
Me – “whare gonna cut wit the money”
Me – “okk”
Me – “she really does”
Me – “can’t wait to leave.”
[11] These messages were shown to Ms. Pearce and she said she had not used her phone from 9:57 p.m. to 10:02 p.m. She did not know who Jordan was. She only got the phone two days ago.
[12] At 20:25, CBSO Emanuel’s involvement in this matter was finished. At no time did he ask her investigative questions about the drugs or her knowledge of the drugs being in her bag. He offered her no inducements. He made no threats. He did not promise her anything. There were no physical or emotional threats or inducements.
Cross-Examination by Counsel for Ms. Pearce
CBSO Emanuel again stated that the key to her bag was not on Ms. Pearce’s person. Ms. Pearce pointed to her travelling companion, Ms. Ferguson, who was also at secondary and said she had the key.
CBSO Emanuel stated that since 2005 he has done hundreds of investigations and has over the years taken lots of notes.
He stated that not all statements made go into his notes, only memorable ones.
The notes of what Ms. Pearce said were made about ½ hour later, after his examination of the bag.
Cross-Examination by Counsel for Ms. Ferguson
Although he was dealing with Ms. Pearce another officer assisted in escorting her to call her lawyer.
CBSO confirmed in re-examination that he could not recall if he received the keys to the bag directly from Ms. Ferguson or indirectly through CBSO Mannella.
CBSO Vincent Mannella
[13] CBSO Mannella was on duty on May 1, 2012. Both Ms. Pearce and Ms. Ferguson had been coded on their E311 cards to go to the secondary inspection counter.
[14] CBSO Mannella dealt with Ms. Ferguson. CBSO Emanuel was dealing with Ms. Pearce. He told CBSO Mannella that the key to Ms. Pearce’s bag was with Ms. Ferguson so Ms. Ferguson gave CBSO Mannella the key and he gave it to CBSO Emanuel. Ms. Pearce and Ms. Ferguson were travelling together. The trip itinerary for Ms. Ferguson was attached to that of Ms. Pearce.
[15] After CBSO Emanuel had arrested Ms. Pearce, CBSO Mannella arrested Ms. Ferguson as a party. She was handcuffed. He read to her her rights to counsel and cautioned.
[16] A female CBSO attended, CBSO Yule, and took Ms. Ferguson to the bathroom.
[17] On that walk to the bathroom with him and CBSO Yule, Ms. Ferguson was crying and upset. She began to talk about the incident. Ms. Ferguson admitted knowledge of the drugs in the bag. K had delivered the bag to her hotel the night before. CBSO Mannella stated that he did not take this down verbatim.
[18] CBSO Mannella felt that she should be able to speak to her lawyer immediately. He called and made contact with her lawyer. He verified it was her lawyer on the phone and he gave his work phone to Ms. Ferguson while she was in the cell. He left the room so she could talk to him in private. This contact with her lawyer was at 17:21. She was on the phone for nine minutes. The statement she had made just prior to speaking to her lawyer was made just before 17:00 hours. CBSO Mannella made the note relating to that statement at 18:00 hours. The statement she made prior to speaking to her lawyer was as follows:
Her boyfriend asked her for a favour for a girl to bring money to Canada.
That girl got in trouble for that the previous week.
She did not want to go to jail.
She had nothing to do with the drugs in her friend’s bag.
She was not feeling well, she was sick.
[19] CBSO Yule had attended other duties during this interaction between Ms. Ferguson and CBSO Mannella. At 18:25, CBSO Yule and CBSO Featherstonehaugh arrive to deal with Ms. Ferguson and CBSO Mannella then has no further dealings with her.
Cross-Examination by Counsel for Ms. Ferguson
At secondary he dealt with Ms. Ferguson and asked her routine questions about her travel but he made no note of her responses.
He examined her bag at secondary for about 20 minutes. He made no notes of anything said by either of them. Nothing was found in her bag relating to drugs.
The reason for her arrest was as a party to smuggling drugs found in Ms. Pearce’s bag.
It was no big surprise Ms. Pearce and Ms. Ferguson were travelling together.
Once she is arrested two female officers are called to assist. After 13 minutes (16:43 to 16:56) CBSO Yule arrives. Ms. Ferguson had indicated to CBSO Mannella she had to use the washroom.
At 16:56, as they are walking to the washroom Ms. Ferguson is crying and becoming more upset. She had indicated to CBSO Mannella she was 25 weeks pregnant.
Ms. Ferguson is brought to the drug loo by CBSO Yule. While they were there CBSO Mannella is tracking down her lawyer, Mr. Corbin Cawkell.
Ms. Ferguson is brought to a private room to speak to her lawyer. At this point CBSO Yule is called away on other duties. Since the drug cell had a camera in it CBSO Mannella took her to a private room with no camera in it.
While she was sitting in the private room and prior to speaking to her lawyer, she was alone in the room and he was standing at the doorway; she began to make statements and he thought he could not wait any longer and she needed to speak to her lawyer immediately.
He let her talk for a bit and then he gave her his cell phone to call her lawyer. He had been standing at the door jam of the drug cell and the door to the private room was open so he could hear what she was saying just prior to handing her the phone to speak to her lawyer.
Although he made notes of what she said, he did not make any notes of what he said to her to elicit the statements she made. He cannot recall what he said to her.
At 17:25, he called her lawyer and gave her the cell phone and he then closed the door so she could have a private conversation with her lawyer.
At 17:30, she is off the phone and is then taken to the search room.
At 18:25, CBSO Yule and Featherstonehaugh arrive.
In the search room, after she speaks to her lawyer, she makes further statements about her boyfriend asking her to do him a favour for a girl to bring money into Canada and that girl got into trouble for that the previous week.
[20] CBSO Mannella stated that it is possible there were other conversations with her but they were not relevant or he would have made a note of them. He only notes what he believes is relevant. He does not write things down verbatim. He only notes the gist of what is said or he paraphrases what is said. He does not record what he says.
CBSO Yule
[21] On May 1, 2012, she was on duty working at the primary counter. At 16:50 hours she was advised to attend the secondary area to assist with an investigation. At secondary she was paired with CBSO Mannella. She met Ms. Ferguson and cautioned her regarding statements. She told her she does not have to say anything; no one is influencing her to say anything; if she does say anything it can be used in court. Ms. Ferguson said she understood.
[22] At 16:57, Ms. Ferguson said she had to use the washroom and CBSO Yule took her to L176, a washroom that has a special toilet. At 16:59, she used the washroom and came out a minute later. When she came out she was upset and crying.
[23] CBSO Yule asked her what was wrong. Ms. Ferguson started talking about her boyfriend Kevin. Kevin paid for everything. Two female friends of Kevin’s picked her and Ms. Pearce up. Ms. Ferguson and Ms. Pearce had separated for a week. Kevin and his brother brought her a new suitcase and it was very heavy, so she took off the wheels. Kevin said he would pick her up instead of her taking a limo.
[24] Ms. Ferguson is making these utterances for 10 to 15 minutes and CBSO Yule is writing it down.
[25] At 17:16, Ms. Ferguson asks to use the loo again and she did. CBSO Mannella is outside of the loo.
[26] At 17:21, Ms. Ferguson goes to a different room to call her lawyer, L168. CBSOs Mannella and Yule stay outside of that room. It was at this point that CBSO Yule is told by her Superintendent to leave Ms. Ferguson and go to assist another search.
Cross-Examination by Counsel for Ms. Ferguson
At 17:01, after she uses the washroom she is upset and crying. CBSO Mannella and Yule are both with her. When Ms. Ferguson makes the utterances to CBSO Yule, CBSO Mannella is also present to hear it.
At 17:01, the only thing CBSO Yule said to Ms. Ferguson is what’s wrong. Ms. Ferguson makes the utterances between 17:01 to 17:16. At 17:16, she asks to use the washroom again. At 17:21, Ms. Ferguson enters L168 to speak to her lawyer.
When asked about CBSO Mannella’s testimony that once Ms. Ferguson finished using the washroom he took custody of her and put her in the drug cell area and CBSO Yule left to go and assist with another search, CBSO Yule stated that CBSO Mannella is mistaken, not her. CBSO Yule was present the whole time the utterances were made.
Ms. Ferguson did not speak to CBSO Mannella. If she did CBSO Yule would have seen it.
[27] Exhibit 1(a) is the Video Statement of Ms. Pearce taken by Constable Wiseman of the RCMP and Exhibit 1(b) is the transcript. Exhibit 2(a) is the Video Statement taken of Ms. Ferguson and Exhibit 2(f) is the transcript. On behalf of both Ms. Pearce and Ms. Ferguson there are no s. 10(b) issues relating to their videotaped statements to Constable Wiseman. Both counsel also concede that the videotaped statements are voluntary.
[28] The issues to be determined at this voir dire relate to the statements made by Ms. Pearce and Ms. Ferguson to CBSA Officers while they were being investigated at the airport.
Position of the Crown
Re: Ms. Pearce
[29] The Crown submits that CBSO Emanuel was very professional in his dealings with Ms. Pearce. The statements she made were voluntary. There were no threats or promises and there were no inducements offered to her. The exchange with CBSO Emanuel was not aggressive and there was no atmosphere of oppression. Ms. Pearce had an operating mind and understood what was going on. The atmosphere was comfortable. Ms. Pearce was given access to a lawyer.
Re: Ms. Ferguson
[30] The Crown acknowledges that the testimony of CBSO Mannella and CBSO Yule is different on many significant aspects of their respective interaction with Ms. Ferguson. The Crown submits, however, that with respect to the testimony of witnesses the Court can accept some, none or all of a witness’ testimony. The Crown argues that since CBSO Yule made verbatim notes of what Ms. Ferguson said I should accept her testimony in that regard despite the fact that it differs from the testimony of CBSO Mannella.
[31] The Crown points out that if all three of them were in the same room together it is unusual that CBSO Mannella would not have recorded what Ms. Ferguson said to CBSO Yule or that CBSO Yule would not have recorded what Ms. Ferguson said to CBSO Mannella. The Crown concedes that the utterances as recorded by the two officers are different but, the Crown argues, the inconsistencies are not important and the ultimate weight to be attached to the evidence is for the jury to decide.
[32] In summary, therefore, the Crown submits that the utterances were voluntary. They were unprompted and unsolicited utterances.
Re: Section 10(b)
[33] The Crown acknowledges that law enforcement officers are required to refrain from soliciting evidence from a detainee until she has had a reasonable opportunity to consult counsel. The Crown submits, however, that the implementation duty arises at a point in time upon arrest or detention.
[34] It is not a continuum. Absent a change in circumstances or jeopardy an accused has no right to be reinstructed each time she makes an incriminating statement or utterance.
[35] Although the officer is required to give effect to the accused’s request to speak to counsel immediately, if there is a delay, whether the delay is reasonable is a factual inquiry. The Crown asserts that immediate does not mean instantaneous.
[36] In this case the delay was half an hour but during that time the accused had two bathroom breaks, the officers were looking for her lawyer’s phone number. CBSO Yule was calming her down as she was upset and crying. In these circumstances therefore, any delay was reasonable. At paragraphs 28 and 29 of his factum the Crown sets out the following:
- Where an inculpatory statement is voluntarily made by the accused after the caution was read but before the right was exercised, the Court found that the accused s. 10(b) rights were not violated and the statements were admissible.
R. v. Legere (1995) 1994 CanLII 3851 (NB CA), 95 C.C.C. (3d) 139 (N.B.C.A.)
- Even though the accused’s 10(b) rights had been violated, the Supreme Court found that the 10(b) violation did not affect the accused’s behaviour. The accused made a spontaneous statement following police caution about his rights to counsel and to silence and an express acknowledgement by the accused that he understood those rights. The inculpatory statement was admitted.
Harper v. The Queen (1994), 1994 CanLII 68 (SCC), 92 C.C.C. (3d) 423 (S.C.C.)
Position of Ms. Pearce
[37] Voluntariness is the only issue in dispute with respect to Ms. Pearce. The defence acknowledges that there were no promises, threats or inducements. The defence submits, however, that the narrative of what transpired with respect to Ms. Pearce is incomplete. The narrative heard at the voir dire comes from CBSO Emanuel and Constable Wiseman. However, other officers had contact with Ms. Pearce but the court did not hear from them.
[38] The defence points out that CBSO Yule, at the direction of her Superintendent conducted a s. 98 strip search. Constable Wiseman and other officers are also involved in that process but not all of them were called as witnesses.
[39] Further, the defence submits that the interaction with Ms. Pearce should have been video recorded and/or audio recorded. This is especially significant since CBSO Emanuel’s testimony confirms that his notes were only a summary or a recap of what she said. They were not verbatim. In these circumstances, therefore, the reliability of the utterances is problematic and ought not to be admitted.
Position of Ms. Ferguson
[40] Ms. Ferguson’s position is that the utterances made by her between the times 16:43 to 17:21 to CBSO Mannella and CBSO Yule are not admissible.
[41] The defence concedes that the informational component of her s. 10(b) rights was complied with however, the officers failed to comply with the implementation component of her s. 10(b) rights. The defence points to the following factors in support of that position:
Ms. Ferguson clearly asserted her right to call a lawyer while she is at the secondary inspection area.
When she is taken to the washroom very close to that room is an office that has a phone available for her use.
After her washroom use she is just sitting in a room from 17:01 to 17:21, a period of 19 minutes. CBSO Mannella has his cell phone available for her use and the office room has a phone available as well.
While Ms. Ferguson is using the washroom CBSO Mannella obtains her lawyer’s phone number so when she came out of the washroom he had the number readily available for her. Yet for 19 minutes she is not given a chance to speak to her lawyer. There is a phone room exclusively used for accused persons to call counsel.
There was no need to wait 19 minutes as there was no urgency relating to the police investigation.
[42] The defence also submits that the Court cannot reconcile the inconsistencies in the testimony of CBSO Mannella and CBSO Yule. Their testimony relating to their respective interactions with Ms. Ferguson are too different and makes their testimony unreliable. The defence submits that a sufficient evidentiary record as to what was said has not been established by the Crown.
Analysis and Conclusion
Re: Ms. Pearce
[43] The defence position on the statements made to CBSO Emanuel and Constable Wiseman is that they were not voluntary. The essential argument set out by Ms. Pearce relates to the fact that not all of the officers who dealt with her were called at the voir dire. On that point the defence relies on the decision in R. v. S.S. [1996] O.J. No. 4564. In S.S., Ferguson J. sets out the following at paragraphs 11 to 16:
When the cases state that, generally speaking, the crown must call as witnesses all persons present when the statement is made and all persons who had some contact with the accused before the statement was made, they are not stating a rule of law. They are just stating that it is commonplace for the trial judge to conclude that he or she is not satisfied the statement was voluntary if all those person are not called. While judges and counsel frequently recite these passages as if they expressed a legal principle they do not express one.
I believe the law is accurately summarized in The Law of Evidence in Canada as follows:
“The issue on the voir dire is not who was present when the statement was made or who had contact with the accused. Rather, the issue is whether the Crown has discharged the burden of proof in the context of the facts of a particular case that the statement was voluntary. In some circumstances, however, the unexplained absence of a witness who was present or had control over the accused may raise a reasonable doubt on the issue of voluntariness.” (p.354)
When the defence contends that a certain witness should have been called, the issue is this: taking into account the circumstances revealed by the witnesses who have testified, does the absence of that witness leave the trial judge with a reasonable doubt as to the voluntariness of the statement?
Whether or not the absence of that witness raises a reasonable doubt is a question of fact ad(sic) depends on the circumstances of the case. R. v. Haughton (No. 2) (1982), 1982 CanLII 2032 (ON SC), 38 O.R. (2d) 496 at 497. There is no reason for the judge to be left with a reasonable doubt if there is nothing more than mere possibility or conjecture that the missing witness was involved in a way that would affect the statement. The Law of Evidence in Canada, p. 354; Regina v. Settee(1974), 1974 CanLII 971 (SK CA), 29 C.R.N.S. 104 at 118; R. v. Haughton.
The point was clearly stated by the British Columbia Court of Appeal this way:
“In different cases, the application of the principle [that voluntariness must be proved] may require the production of all or some or none of the persons in authority who were present when the statement was made and of all or some or none of the persons not in authority who were then present.” R. v. Wert (1979), 1979 CanLII 4421 (BC CA), 12 C.R. (3d) 254 at 258.
- I also seems to me that whether or not the absent witness was a person in authority is a relevant consideration in determining whether or not the absence of that person’s evidence laves the judge with a reasonable doubt. Presumably one of the reason for the voluntariness rule is that such persons are more likely to be in a position to influence the accused.
[44] The defence takes issue with the fact that the primary officer was not called as a witness. The primary officer is the first point of contact when a traveller enters the country. Routine questions are asked about their travel and from those questions and answers the primary officer will determine if the traveller will be sent for a secondary inspection. Another reason for sending the traveller to secondary could be that the traveller is coded as a lookout and that information would be available to the primary officer.
[45] In these circumstances it is difficult to see how this witness was involved in any way that would affect the statement. It would be nothing more than speculation or conjecture that the primary officer would be relevant to the issue of voluntariness of the utterances to CBSO Emanuel.
[46] Although other officers may have been present while Ms. Pearce was escorted throughout the process, again, there is nothing to suggest that these missing witnesses would have anything to offer that could affect the voluntariness of the utterances.
[47] The more significant concern raised by the defence relates to the reliability of CBSO Emanuel’s notes. The defence argues that the utterances should have been either video recorded or audio recorded. As Ms. Pearce was known to be the subject of a lookout, the CBSO Officers knew that it would be likely that a statement may be given by Ms. Pearce and steps could have and should have been taken to record any utterances she made. The significance of this is amplified by the fact that CBSO Emanuel’s note taking was less than complete.
[48] In support of this argument the defence relies on the decision of Justice Baltman in R. v. Ebanks [2012] O.J. No. 4625. At paras 14, 15 & 17, Justice Baltman states:
In assessing voluntariness the court must keep in mind the twin goals of protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes. The focus is on the conduct of the police and its effect on the accused’s ability to exercise her free will. The relevant factors include threats or promises, oppression, the requirement of an operating mind and police trickery. These inquiries are highly fact-specific: R v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 (S.C.C.).
In R. v. Burke, 2010 ONSC 6530, [2010] O.J. No. 5219, at paras. 28-39, I reviewed the jurisprudence concerning the failure by police to adequately record statements. In sum:
• While there is no absolute rule requiring the recording of statements, not only is it the better practice but in many circumstances the failure to record will render a confession unreliable;
• Where a suspect is in custody, recording facilities are readily available and the police deliberately set out to interrogate the suspect, a non recorded statement will be suspect; in that case the court must consider whether there exists a “sufficient substitute” for the recording.
- See, in particular, Oickle, para. 46; R. v. Moore-McFarlane, 2001 CanLII 6363 (ON CA), [2001] O.J. No. 4646 (C.A.) at paras. 65 and 67; R. v. Ahmed, 2002 CanLII 695 (ON CA), [2002] O.J. No. 4597 (C.A.) at para. 22.
Evidence and Analysis
- It is undisputed in this case that the defendant was in custody during the relevant period. I am also satisfied that recording facilities are readily available. That recording devices are not currently supplied is no answer. With minimal effort and expense, tape recorders could be purchased and provided to border service officers (BSO’s).
[49] At paras. 22 & 23 Justice Baltman sets out the following:
- From the testimony given by the officers the following was evident:
• Most of them had minimal, if any, independent recollection of their interaction with the defendant; they depended heavily on the notes they made at the time and their subsequent “narrative reports”;
• Neither their notes nor their narratives purport to be a comprehensive account of all the conversation that took place between them and the defendant; while various utterances are allegedly quoted “verbatim”, the majority of their notes simply convey the “gist” of what they thought was important;
• For the most part their testimony consisted of a summary of what they thought was significant in their dealings with the defendant, punctuated by incriminating comments devoid of any real context.
• Significantly, in most cases none of the officers can state what occurred or was said immediately before the impugned utterances, thereby depriving the court of an accurate context in which to assess the remarks: see R. v. Hunter, 2001 CanLII 5637 (ON CA), [2001] O.J. No. 2388 (C.A.), paras. 14 and 19
- Given those factors, in my view the dangers of admitting the impugned statements are too great. While all the officers insist they made no threats or promises to induce the statements, the absence of a reliable, detailed record in this case makes it impossible for me to assess that claim objectively.
[50] I have considered the testimony of CBSO Emanuel relating to his notes. CBSO Emanuel’s evidence in this area is problematic. The notes he made of the conversation he had with Ms. Pearce are a recap of what was said. The utterances were not taken down verbatim and he was not sure when the notes were made in relation to when the utterances were made.
[51] CBSO Emanuel also stated that not all statements are put in his notes, only memorable statements. The approximate time he began his investigation was 16:28. He recapped what had transpired in his notebook at 17:12. As he was examining her bag he made this recap at the later time.
[52] At 17:03, Ms. Pearce stated: Sir, what does this mean. My first time down there. Does that mean I can’t go down there? I didn’t know what was in there.
[53] At 16:29, Ms. Pearce stated that she and Ms. Ferguson went to Jamaica for an engagement party for her brother and her birthday party.
[54] The difficulty that arises with respect to this evidence is similar to that expressed by Justice Baltman in Ebanks. The recap of his conversation with Ms. Pearce lacks the context of the full conversation. The recap only notes what Ms. Pearce said, it does not note what CBSO Emanuel said to elicit the statement. This lack of completeness creates a situation where the court cannot accurately assess the context in which the conversation between CBSO Emanuel and Ms. Pearce unfolded.
[55] In R. v. Scharf [2013] S.J. No. 564, the court stated the following at para. 31:
- This court accepts that the present state of the law is there is no absolute requirement for an accused’s statement to be recorded by means of audio or video equipment. However, those devices may make it easier for the Crown to discharge its heavy burden of proof. When such recording has not been done, the Crown does not face a reduced onus regarding admission of the statement. It faces the same onus, one which may be harder to meet in those circumstances.
[56] At para. 36 the court noted:
- Here, it cannot be said the evidence is “exhaustive” of what was said between Cst. Roszell and the accused. By the officer’s own admission he recalled some 15 seconds of a two‑minute conversation. He has placed roughly 12 percent of the conversation and its surrounding circumstances before the court. He agreed his notes and recollection form a “synopsis” or “snippet” of the entire conversation, much as the officer’s notes in G.C. captured the “scope” of the unrecorded interview. During cross‑examination, he admitted his synopsis might not be complete or accurate and admitted he could not recall whether he asked the accused directly if he was the driver. While he says the other officer can confirm the conversation, Cst. Burles can do no such thing. His conclusion is there were no threats or promises made, and the Crown relies upon his assertion. But that is not the officer’s decision to make – it is the court’s. Without sufficient evidence, the court cannot make that decision and, therefore, cannot determine whether the statement is admissible. None of the cases filed by the Crown are of assistance to it in patching over this significant hole in its case.
[57] I agree with the reasoning of both Justice Baltman in Ebanks and Justice Danyliuk in Scharf. I have serious concerns about the state of the notes and their reliability in setting out the context of the utterances and the completeness of what was said. CBSO Emanuel agreed that the notes he made were a recap. The conversation with Ms. Pearce was not audio recorded nor was it video recorded.
[58] I am not satisfied, therefore, that those statements made by Ms. Pearce to CBSO Emanuel are admissible. They will be excluded at trial.
Re: Ms. Ferguson
[59] I agree with the position of Ms. Ferguson that the utterances made by her between the times of 16:43 to 17:21 are not admissible.
[60] In R. v. Manninen 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233 the Court sets out the following at paras. 22 and 23:
In my view, this aspect of the right to counsel was clearly infringed in this case. The respondent clearly asserted his right to remain silent and his desire to consult his lawyer. There was a telephone immediately at hand in the office, which the officers used for their own purposes. It was not necessary for the respondent to make an express request to use the telephone. The duty to facilitate contact with counsel included the duty to offer the respondent the use of the telephone. Of course, there may be circumstances in which it is particularly urgent that the police continue with an investigation before it is possible to facilitate a detainee's communication with counsel. There was no urgency in the circumstances surrounding the offences in this case.
Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. In this case, the police officers correctly informed the respondent of his right to remain silent and the main function of counsel would be to confirm the existence of that right and then to advise him as to how to exercise it. For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence. I discussed the duty imposed on the police in the context of a breathalyzer demand in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at p. 624:
I do not want to be taken here as giving an exhaustive definition of the s. 10(b) rights and will limit my comments in that respect to what is strictly required for the disposition of this case. In my view, s. 10(b) requires at least that the authorities inform the detainee of his rights, not prevent him in any way from exercising them and, where a detainee is required to provide evidence which may be incriminating and refusal to comply is punishable as a criminal offence, as is the case under s. 235 of the Code, s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel. [Emphasis added.]
This passage was cited by Wilson J. in Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, at p. 394, in the context of confessions, and I agree that this duty is equally applicable in that context. The Ontario Court of Appeal came to the same conclusion in Anderson, supra, and in R. v. Esposito (1985), 1985 CanLII 118 (ON CA), 24 C.C.C. (3d) 88, at p. 97:
If the suspect states that he wishes to retain counsel all questioning must cease until he has been afforded the opportunity of consulting counsel....
[61] Ms. Ferguson could have and should have been afforded an opportunity to speak to her lawyer and within the lapse of 19 minutes there was plenty of time for her to do so and it would have been easy for CBSO Mannella to provide that opportunity to her.
[62] A further difficulty arises for the Crown with respect to these utterances. A sufficient evidentiary record has not been established. The notes record only what Ms. Ferguson said and not what either CBSO Mannella or CBSO Yule said. In those circumstances the conversations are incomplete and devoid of context. There were no notes made of what occurred or what was said by the officers before the utterances were made.
[63] In addition to that, the testimony of CBSO Mannella and CBSO Yule are so different they cannot be reconciled. Although CBSO Yule does state that she recorded verbatim what Ms. Ferguson said, this was prior to Ms. Ferguson having had the opportunity of speaking to her lawyer and the notes she made do not record CBSO Yule’s part of the conversation.
[64] With respect to CBSO Mannella he testified that he only wrote down what Ms. Ferguson said and only what he thought was important.
[65] In all of those circumstances the Crown has not met its onus of proving the utterances voluntary beyond a reasonable doubt.
[66] A further problem identified by the defence is that since the officers did not record what they themselves said the conversation with Ms. Ferguson is incomplete and without context. Again, this seriously undermines the reliability of such utterances made by Ms. Ferguson.
[67] I am not satisfied that the Crown has met its onus of establishing a sufficient and reliable evidentiary record to make the utterances admissible.
[68] I am also satisfied that the implementation component of her s. 10(b) rights were breached.
Section 24 (2)
[69] The Grant factors that the court must consider under s. 24(2) are as follows:
The seriousness of the Charter – infringing state conduct;
The impact on the Charter protected interested of the accused; and
Society’s interest in adjudication of the case on its merits.
[70] The Crown submits that the breach was not serious. There is no causal connection in that the utterances were spontaneous. Any delay in arranging for Ms. Ferguson to speak to counsel was reasonable. The CBSO officers did not act in bad faith deliberately with a view to infringing her Charter rights.
[71] The Crown submits that the breach was at the minor end of the spectrum and as such this factor favours admission.
[72] The Crown concedes that the second factor in Grant does favour exclusion. The Crown submits that the third factor favours admission considering the seriousness of the charge.
[73] On balance, therefore, the statements ought to be admitted.
[74] Ms. Ferguson submits that the breach is serious. An accused’s right to counsel is a very important right and the authorities must act in accordance with those rights. The defence does not allege malice on the part of the officers but submits that the officers were overzealous and acted in such a fashion that it disregarded the accused’s stated intention to speak to her lawyer. The delay was unreasonable. There was plenty of time and opportunity to make contact with her lawyer and the officers should have made it clear to Ms. Ferguson she did not have to say anything until she had an opportunity to speak to her lawyer.
[75] The second factor in Grant favours exclusion.
[76] The third factor in Grant cannot trump a serious breach so it favours exclusion.
[77] In balancing these factors the defence submits the statements ought to be excluded. Excluding these utterances does not gut the Crown’s case in any way.
[78] I agree with the position of the defence on Section 24(2).
[79] In Grant the Court set out the approach that the Court must follow pursuant to Section 24(2) commencing at paragraph 67. At paragraph 71 the Court states:
[71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
Seriousness of the Charter – Infringing State Conduct
[80] At paragraph 72 of the Grant decision the Court states:
[72] The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.
Impact of the Charter-Protected Interests of the Accused
[81] At paragraph 76 in Grant the Court states:
[76] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
Society’s Interest in an Adjudication on the Merits
[82] In Grant the Court set out the following at paragraphs 79 to 84:
[79] Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”: R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.
[80] The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (see R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272) is inconsistent with the Charter’s affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.
[81] This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.
[82] The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to “balance the interests of truth with the integrity of the justice system”: Mann, at para. 57, per Iacobucci J. The court must ask “whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial”: R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47, per Doherty J.A.
[83] The importance of the evidence to the prosecution’s case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.
[84] It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society’s interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) “operate independently of the type of crime for which the individual stands accused” (para. 51). And as Lamer J. observed in Collins, “[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority” (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.
Balancing The Three Factors
[83] At paragraphs 85 and 86 Grant states the following:
[85] To review, the three lines of inquiry identified above — the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits — reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
[86] In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.
[84] In all of the circumstances the statements are also excluded as a result of her s. 10(b) rights being violated.
[85] I agree with the defence position that the officers did not act with malice or bad faith, however, their conduct in not affording Ms. Ferguson an opportunity to speak to her lawyer right away, when there was clearly an opportunity for her to do so, rises to a level of constitutional concern.
[86] The characterization of the breach in these circumstances is, therefore, a serious one. This factor favours exclusion.
[87] The second factor in Grant also favours exclusion. I cannot agree with the Crown’s position that in the circumstances of this case the breach was minor or technical in nature. Not providing an accused with the opportunity to speak to counsel and obtain legal advice before deciding whether to exercise their right to silence has a serious impact on an accused.
[88] With respect to the third factor in Grant I agree with the Crown’s assertion that the charge is serious and there is a significant interest in an adjudication of this case on the merits. However, the consequences of admitting this statement has a more negative impact on the administration of justice that excluding the evidence would.
[89] Grant stated that the reliability of the evidence is an important factor the court must consider. An accused who has not had the benefit of legal advice pursuant to exercising her rights under s. 10(b) may not fall into that category of providing reliable evidence when speaking to the authorities.
[90] I am satisfied that in the circumstances of this case the Charter breach outweighs the seriousness of the offence.
[91] In balancing all of these factors I am satisfied that the utterances made by Ms. Ferguson to CBSO Mannella and CBSO Yule are excluded as a result of the breach of her s. 10(b) Charter rights.
Fragomeni, J.
Released: January 29, 2016
CITATION: R. v. Ferguson, 2016 ONSC 310
COURT FILE NO.: CR-13-05-00
DATE: 2016-01-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
SIOBHAN FERGUSON AND STEPHANIE AMANDA PEARCE
RULINGS
RE: VOLUNTARINESS OF STATEMENTS &
SECTION 10(B) CHARTER OF RIGHTS APPLICATION
Fragomeni, J.
Released: January 29, 2016