Court File and Parties
COURT FILE NO.: 13-73 DATE: 2016/06/17 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Respondent – and – JARRETT SAUVE and JUSTIN STEWART Applicants
Counsel: Andre White, counsel for the Crown Donald W. Johnson, counsel for the Applicant, Jarrett Sauve Robert J. McGowan, counsel for the Applicant, Justin Stewart
HEARD: March 21, 22 and 23, 2016
RULING ON THE ADMISIBILITY OF THE ACCUSED, JARRETT SAUVE’S, UTTERANCES AND VIDEOTAPED STATEMENT
LACELLE, j.
Introduction
[1] Jared Sauve is charged with various weapons offences following his arrest in April 2012. The admissibility of a handgun and ammunition seized by police prior to his arrest has been addressed in separate reasons. In that ruling, I provided a general overview of the facts with respect to the police interaction with the accused and his co-accused. I will not repeat that summary here.
[2] Mr. Sauve also challenges the admissibility of his videotaped statement and other utterances made to police following his arrest because he says police violated his right to counsel. The Crown in turn seeks an on order confirming the voluntariness of the statements. These are my reasons in relation to those applications.
[3] Different factual considerations apply to the utterances Mr. Sauve is alleged to have made to the police, and to his videotaped statement. I will address each in turn, following a summary of the relevant evidence and legal principles.
Overview of the police evidence
[4] D/Cst McGillis first had contact with the accused when he was outside at the gas pumps, after Mr. Stewart had entered the gas station store. He spoke with Mr. Sauve in furtherance of the investigation under the Customs Act that he and Cst. Neily had commenced. At the time he spoke with Mr. Sauve, D/Cst. McGillis did not consider that he had detained him. He said Mr. Sauve would have been free to go if he walked away.
[5] The conversation between the two men occurred after D/Cst. McGillis approached Mr. Sauve and identified himself as a police officer. He asked Mr. Sauve for his driver’s license, and asked him what he was doing. Mr. Sauve provided him with a driver’s license with an Ottawa address. He told the officer that he was living in Ottawa and was just here driving around. D/Cst. McGillis asked him about the two individuals at the shoreline in the boat. The accused reported he knew one of the individuals was named Myles. He denied any knowledge of what was in the backpack. This conversation was not noted verbatim by the officer, but represented his best summary of what was said.
[6] After the gun was discovered by Cst. Neily in the backpack carried by Mr. Stewart into the gas station store, both men were arrested outside by D/Cst. McGillis at 6:49 p.m. D/Cst. McGillis testified that he read rights to counsel and cautioned both accused. He did so by reading from his police card. Both nodded that they understood their right to counsel. The officer did not recall what each accused had said about whether he wished to speak to counsel. He testified that he told them that they could contact a lawyer soon.
[7] Cst. St-Amand arrived at the scene at about 6:50 p.m., and was tasked with transporting Mr. Sauve to the police detachment. When he arrived at the scene, he said he knew that there was an individual at the scene who was possibly armed and dangerous, but that he had no information about the case.
[8] Cst. St-Amand testified that he placed the accused in the rear of his cruiser, and obtained verbal identification from the accused. He testified that he did not ask the accused any further questions, but that the accused then made various utterances to him. The officer testified that the accused said he did not understand why he was getting arrested. The officer told him it would be explained to him at the detachment. The accused then volunteered that he brought his friend down from Ottawa, and that he had just recently met him after a long time. Mr. Sauve said the pack sack was his, that the other guy got the bag from him and went inside the store, and that’s when it all went down. Cst. St-Amand acknowledged in cross-examation that there could have been further conversation en route to the detachment, but he did not recall any. With respect to the utterances he recorded, Cst. St-Amand confirmed that his notes were a summary of what the accused had said.
[9] Cpl. S. Drugea became involved with Mr. Sauve later in the evening. He first spoke with the accused at 7:17 p.m. by which time both accused were at the police detachment. Cpl. Drugea testified that Cst. Neily told him that he had not read the accused their Charter rights and caution, and asked Cpl. Drugea to do so. Consequently, at 7:17 p.m., Cpl. Drugea read Mr. Sauve the arrest notice, rights to counsel, and caution as set out in his police card. Mr. Sauve confirmed he understood his right to counsel. When asked if he wanted to contact counsel, he replied no, with a nervous laugh. When asked if he understood the caution, he said he did. After this procedure, Mr. Sauve was placed in a cell, on his own.
[10] Cpl. Drugea did not ask Mr. Sauve to sign his notebook confirming that he did not wish to speak with counsel. He said he did not do this because it was not his practice.
[11] Cpl. Drugea repeated this procedure with Mr. Stewart, who did ask to speak with counsel. Cpl. Drugea facilitated that contact, and confirmed that Mr. Stewart was satisfied with the advice he had been given.
[12] Cpl. Drugea also assisted each accused with phone calls to their families. Mr. Sauve was given a chance to make calls at 8:32 p.m., and again at 8:55 p.m.
[13] Cpl. Drugea then provided each accused with meals. The interview of Mr. Sauve commenced after he finished eating.
Overview of the accused’s evidence
[14] Mr. Sauve testified that he was arrested at gunpoint, and was terrified at the time. He recalled that one of the officers told him he was being arrested for possession of a firearm, and he believed his rights were read to him a few minutes after his arrest. He said he did not believe that at the time, he understood them. He also testified that the officer did not tell him that he did not have to say anything. In cross-examination, he agreed that if officer McGillis said he had read him his rights, he would have to agree, given his difficulty in recalling what happened. He agreed that he told D/Cst McGillis he understood what had been read to him, and that he did not say anything to him to make him think otherwise. He said things were being said to him quickly, and he did not have time to “prepare anything”.
[15] With respect to his dealings with Cst. St-Amand, Mr. Sauve said he thought the officer had heard information about the case on dispatch. He said he thought it was the officer who asked him questions, and that he believed Cst. St-Amand said something to the effect that he was in something big.
[16] Mr. Sauve testified that he did not recall anyone talking to him about a lawyer after he was placed in cells at the detachment. When asked if he recalled Cpl. Drugea speaking to him at 7:17 p.m. and telling him why he was arrested, that he had a right to a lawyer, and that he did not have to say anything, Mr. Sauve testified that he did remember a conversation, but he could not recall its “terms” because he was in shock at the time. In cross-examination, Mr. Sauve agreed that Cpl. Drugea told him that what he said would be taken down in evidence, and that he told the officer he understood. He also agreed that when the officer read his right to counsel, the officer did not push him to not exercise that right.
[17] Mr. Sauve testified that during the interview, the officers conducting it did not tell him he could speak with a lawyer. He didn’t remember if they told him he did not need to say anything. He said he had not exercised his right to speak to a lawyer up to that point. He said that during the interview he was not given a phone book, or told he should speak with a lawyer.
[18] In cross-examination, Mr. Sauve agreed his memory was “sketchy on certain issues”. He recalled that he was able to call a family member, and that he spoke with his father. He said he did not take in what the officer told him during the videotaped interview when the officer said he could speak with a lawyer at any time. He also agreed that he had not told anyone during the interview that he did not understand things.
[19] Mr. Sauve agreed he had conversations with each of D/Cst. McGillis and Cst. Amand, but he disputed the accuracy of the utterances attributed to him. He did not agree that he told D/Cst. McGillis that he knew a person at the boat named Myles. He said this was not true, and that he only knew his co-accused. He agreed however that he denied knowledge of what was in the backpack.
[20] He disputed telling Cst. St-Amand that he had not seen his friend in a long time, although he agreed he may have said something about his co-accused. He agreed that he told the officer that the backpack was his, and that his friend went into the store and that’s when it all went down. He disagreed that he had started the conversation, and said he believed the officer was asking him questions.
The legal principles: section 10(b) of the Charter
[21] Section 10(b) of the Charter imposes three duties on police upon arresting or detaining an accused:
To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
The first duty has been characterized as “informational”, while the second and third are implementation duties: R. v. Bartle, [1994] 3 S.C.R. 173 at para 17.
[22] The implementation duties are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended. Further, an accused may waive her 10(b) rights, although the standard for waiver will be high, particularly where the alleged waiver is implicit: see Bartle at paras. 17-18.
[23] Where a waiver is alleged, the court must be satisfied that the accused was clearly and fully informed of her rights at the outset, because otherwise, the accused may not make an informed choice about whether to exercise her right to counsel. Further, in light of the rule that absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution, it is important that the standard caution given by police be as instructive and clear as possible. Consequently, in circumstances which suggest that a particular detainee may not understand the information being communicated to him or her by state authorities, a mere recitation of the right to counsel will not suffice. Authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10(b) rights: see Bartle at paras. 19-20.
The legal principles: voluntariness
[24] R. v. Oickle sets out the common law confessions rule and confirms that the rule is concerned with voluntariness, broadly defined. It seeks to balance both societal and individual interests, and particularly, to guard against unreliable confessions which can lead to miscarriages of justice. The twin goals of the confessions rule are to protect the rights of the accused, without unduly limiting society’s need to investigate and solve crimes: R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38 at paras 32 – 33.
[25] Prior to Oickle, the approach to voluntariness mandated by Ibrahim v. The King focused on the “negative right” not to be tortured or coerced into making a statement by threats or promises held out by a person in authority. R. v. Hebert and subsequent cases broadened the test by adding an additional requirement of a mental element (the “operating mind”) that included concepts such as an "atmosphere of oppression" or "complete emotional disintegration". Oickle incorporates these concerns into the modern day confessions rule, which requires an analysis of the circumstances surrounding a statement made to a person in authority with particular reference to a) threats or promises, b) oppression, c) operating mind, and d) other police trickery. Only the inquiry relating to “other police trickery” is discreet. The analysis is otherwise contextual, and all the relevant factors must be considered. A court should strive to understand the circumstances surrounding the statement and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule: Oickle, at paras 24-31; 47-71; R. v. Hebert, [1990] 2 S.C.R. 151; Ibrahim v. The King, [1914] A.C. 599 (P.C.); R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48 at paras 35-36.
[26] The Court in Oickle clarified the law surrounding permissible inducements. The Court recognized that few suspects will spontaneously confess to a crime. In most cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. Inducements become improper only when, standing alone or in combination with other factors, they are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. The most important consideration is to look for a quid pro quo offer by the interrogators that may be in the form of a threat or a promise: Oickle, at paras 48-57.
[27] The Court also recognized that an accused will often have mixed motives in providing a statement to authorities, and that confessions are often motivated by a self-generated hope of advantage. An accused person’s self-generated hope that a statement will be beneficial, even if it is promoted by a person in authority, does not vitiate its voluntariness. The following direction on the issue was provided by Justice Iacobucci at para. 57:
Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.
The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise. [emphasis added]
[28] Phrases like "it would be better if you told the truth" do not automatically require exclusion. The trial judge must examine the entire context of the confession, and ask whether the circumstances reveal an implicit threat or promise to the degree that there is a reasonable doubt that the resulting confession was voluntary. There is nothing wrong with “mere moral inducements that suggest to an accused that he would feel better if he confessed and began addressing his problems”: Oickle, at paras 53-55 and 79.
[29] Inhumane or degrading treatment, utterly intolerable conditions, hostile, aggressive or intimidating interrogation over a prolonged period of time, deprivation of food, clothing, water, sleep, access to counsel or medical attention may lead to an atmosphere of oppression. The case of R. v. Hoilett provides an example of circumstances leading to an atmosphere of oppression. A confession made to escape inhumane conditions is not voluntary: Oickle, at paras 60-68; R. v. Roy, [2002] O.J. No. 5541 (S.C.J.) at paras 250-4; Hoilett (1999), 136 C.C.C. (3d) 449 (Ont. C.A.).
[30] An accused’s own timidity or subjective fear of the police will not avail to avoid the admissibility of a statement or confession unless there are external circumstances brought about by the conduct of the police that can be said to cast doubt on the voluntariness of a statement by the accused, or there are considerations affecting the accused which would justify doubt as to voluntariness. Oppression and oppressive circumstances arise from conditions created by police conduct. They are not self-generated: R. v. Hobbins, [1982] S.C.J. No. 25 (S.C.C.) at p. 3; R. v. Roy, [2002] O.J. No. 5541 (S.C.J.) at paras 252-3.
[31] The “operating mind” criteria was addressed in R. v. Whittle, where the Supreme Court held that the operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment.” There is no inquiry necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest. Like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the confessions rule. The operating mind doctrine is just one application of the general rule that involuntary confessions are inadmissible: Oickle, at paras 63-65; Whittle v. The Queen (1994), 92 C.C.C. (3d) 11 (S.C.C.); R. v. Roy, [2002] O.J. No. 5541 (S.C.J.) at paras 255-7.
[32] There is no absolute rule requiring the recording of statements. However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio or video recording. Where a suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate a suspect without giving any thought to the making of a reliable record, the resulting non-recorded interrogation will be suspect. The trial judge in those cases must address whether there is a sufficient substitute for an audio or video tape record to prove voluntariness beyond a reasonable doubt: R. v. Moore-McFarlane, [2001] O.J. No. 4646 (CA.) at paras. 62-65.
[33] The sufficiency of the record is relevant to the admissibility of a statement, and not just to its ultimate reliability. While issues of accuracy and completeness of a recording are issues for the trier of fact in a proceeding (see R. v. Gauthier, [1977] 1 S.C.R. 441, and R. v. Lapointe (1983), 9 C.C.C. (3d) 366) the completeness, accuracy and reliability of the record are central to the court’s inquiry into and scrutiny of the circumstances surrounding the taking of the statement: Moore-McFarlane at paras. 66-67.
Issue #1: Are the utterances to D/Cst. McGillis admissible?
The positions of the parties
[34] The accused does not argue that he was detained at the time of the alleged utterances to D/Cst. McGillis, but argues that the utterances made to D/Cst. McGillis ought not to be admitted. He disputes he said what was alleged by the officer, and argues that the utterances have not been proved by the Crown, in part because they were not recorded or otherwise confirmed by the accused. He emphasizes the principles from Moore-McFarlane and says the utterances ought not to be admissible at trial.
[35] The Crown argues that the evidence of D/Cst. McGillis as to what the accused told him when he first spoke with him at the gas station pumps is reliable, because the officer made notes of the questions posed and answers received. He argues the accused’s admissions about what was said bolsters the reliability of the utterances attributed to him by D/Cst. McGillis, and that the law as set out in R. v. Moore-McFarlane does not preclude receiving these utterances into evidence.
Analysis
[36] The parties agree that the accused was not detained at the time he made the utterances. This is consistent with the evidence of D/Cst. McGillis to the effect that Mr. Sauve was free to walk away when he first approached him at the gas pumps. Because Mr. Sauve was not arrested or detained, police were not under an obligation to provide him with his rights to counsel.
[37] With respect to the voluntariness of the statement, I find that the Crown has proved beyond a reasonable doubt that the utterances were voluntary. The accused has not suggested how the officer’s conduct resulted in his will being overborne in deciding whether to speak to him, and I find there is no evidence to suggest that it was.
[38] The principles set out in Moore-McFarlane do not preclude the admissibility of a statement made in these circumstances. The police were not in a situation where recording what was said was feasible. The recording of the conversation in the officer’s notes was reasonable in the circumstances. I do not find the failure to more fully record conversation with an accused prior to his arrest or detention as suspect, such that the voluntariness of the statement is in doubt.
[39] With respect to the accuracy of the utterances alleged, this is an admissibility voir dire. There is some admissible evidence that the accused made the utterances alleged, which is all that the Crown need prove at this stage: R. v. Gauthier, [1977] 1 S.C.R. 441. As I have said, in the circumstances here, the failure to more fully record the statement does not vitiate the court’s view of the voluntariness of the statements. The ultimate finding as to which specific utterances were made by the accused is an issue to be determined at trial.
[40] The Crown has proved beyond a reasonable doubt the voluntariness of the accused’s utterances to D/Cst. McGillis. They are accordingly admissible in the trial.
Issue #2: Are the utterance to Cst. St-Amand admissible?
The positions of the parties
[41] The accused objects to the admissibility of the utterances to Cst. St-Amand because he says police did not comply with their obligations under s. 10(b) prior to any utterances made, and because the Crown has not proved that the utterances alleged were made. He points out the utterances were not recorded in any fashion, and the officer’s notes are incomplete as to what was said by each of them. He says it would be unfair to permit the Crown to introduce the statement.
[42] The Crown argues that the officer’s evidence as to what was said is reliable, and that the accused’s own admissions about the utterances made confirm this. He argues that the utterances made to Cst. St-Amand were spontaneous, and police did not fail in their duty to hold off in eliciting evidence from him until he had had an opportunity to exercise his right to counsel. The Crown maintains that the utterances were voluntary, and should be admissible at trial.
Analysis
[43] I find that the accused has not established on a balance of probabilities that at the time the accused made the utterances to Cst. St-Amand, police breached his s. 10(b) rights.
[44] On the evidence adduced, I find that at the time of the utterances, Mr. Sauve had not yet been given an opportunity to speak with counsel. There is no evidence that he had waived his right to counsel, as D/Cst. McGillis could not recall what the accused’s response was when he was asked whether he wished to contact counsel. Therefore, the police were under an obligation to hold off from eliciting evidence from the accused at the time the utterances were made.
[45] Accordingly, the issue I have to decide is whether the utterances were made spontaneously, such that the police did not breach their duty under s. 10(b) to hold off from eliciting evidence from the accused when the utterances were made.
[46] The evidence of the accused and Cst. St-Amand differs on this issue. I find that the evidence of each of these witnesses is compromised by the time that has passed since the utterances were made four years ago. While the officer made notes of his dealings with the accused, it was clear in his evidence that his independent recall of these events was limited. He fairly acknowledged, for instance, that there might have been other conversation in the cruiser between him and the accused.
[47] The accused testified that he believed the officer had told him something to the effect that he was involved in something big, and that he believed the officer had information about the case. The evidence of Cst. St-Amand confirms he had information that one individual at the scene was armed and dangerous. He also gave some evidence indicating that at the time he attended the scene, he was aware that the allegations involved two other males who had left via the river.
[48] I find that the officer had some information about the circumstances leading up to Mr. Sauve’s arrest prior to his dealings with him. Given this, the accused’s evidence about the officer making comments to him is possible. However, the accused’s testimony in this regard was less than firm. He acknowledged he had a poor memory of what happened in the vehicle, and attributed that to the fact that he was impacted by having recently been arrested at gunpoint. He said he “believed” the officer asked him questions to elicit his utterances. He gave no detail as to what he was asked, or what the officer said to him to elicit his utterances beyond suggesting to him that he was involved in something big.
[49] In the circumstances, despite the officer’s acknowledgement that there may have been additional interaction between him and the accused, I am not persuaded that the accused’s utterances were elicited by the officer’s questions. I find the accused has not proved on a balance of probabilities that police failed in their duty to hold off on eliciting evidence from him until he had had an opportunity to exercise his right to counsel.
[50] With respect to voluntariness, the accused has not suggested there is anything in the conduct of police which caused his will to be overborne before he decided whether to speak to Cst. St-Amand. Rather, he suggests the record of the utterances is insufficient to permit them to be admissible at trial.
[51] For the reasons indicated with respect to the admissibility analysis of the utterances made to D/Cst. McGillis, I find that there is a sufficient record of the statements to permit an assessment of the circumstances in which they were given, and I do not find those circumstances suspect because the utterances were not recorded. In this instance, the officer had the accused in the back of his cruiser and was transporting him to the detachment. There is nothing suspect in the fact that the only recording of the utterances was by the officer in his notebook. After considering all of the circumstances bearing on the voluntariness of these utterances, I find the Crown has proved their voluntariness beyond a reasonable doubt.
[52] The utterances to Cst. St-Amand are admissible at trial.
Issue #3: Is the videotaped statement admissible?
The positions of the parties
[53] The accused argues that his videotaped statement was obtained in violation of his right to counsel, because the police failed in their implementation duty to provide him with an opportunity to exercise his right to counsel before attempting to elicit evidence from him. With respect to voluntariness, Mr. Sauve submits that the court should have a reasonable doubt about the voluntariness of his statement because one of the officers made a threat/inducement which compelled him to make a statement. He further argues that the court should have a reasonable doubt about whether his will was overborne by that threat/inducement having regard to his mental condition at the time of the interview, and the atmosphere in which he was in. In that regard he highlights the difference in his smaller physical stature compared to that of the officers.
[54] The Crown argues that the evidence establishes that the police had fully complied with their obligations under s. 10(b) at the time of the videotaped interview. He submits that the accused acted out of self-interest in speaking to the officer during the videotaped interview, and that the statement is voluntary.
The alleged Charter breach
[55] The accused has not met his onus in satisfying me that his s. 10(b) Charter right was breached because the police did not provide him with an opportunity to speak with a lawyer.
[56] The evidence on this issue during the voir dire does not establish a factual basis to find that the police did not provide him with an opportunity to speak with counsel. The accused’s own evidence was that he did recall a conversation with someone about his rights to counsel, but he could not recall the details because he was in shock. He acknowledges that officers told him he could speak with a lawyer. He did not testify that he indicated that he wished to exercise his right to counsel, or that he was not permitted to do so.
[57] Mr. Sauve also acknowledged that he was told on video that he could speak with a lawyer at any time. The videotape confirms that the officers told Mr. Sauve that they understood that he had expressed that he did not want to speak to a lawyer up to that point, but should that change, he could speak with a lawyer at any time. While on video, Mr. Sauve agreed with the suggestion that he had “expressed” that he did not wish to speak to a lawyer up until that point. While he testified that he did not understand what the officers were saying to him at that time, he agreed that he did not tell anyone he did not understand.
[58] Given this evidence, Mr. Sauve has not satisfied me on the balance of probabilities that police denied him an opportunity to speak with counsel. I find his position that he was not given an opportunity to speak with counsel is not made out on the evidence adduced on the voir dire. The accused’s agreement during the videotaped statement that he had expressed that he did not wish to speak with a lawyer is particularly powerful evidence that this is precisely what happened.
[59] Further, I note that the evidence is clear that Mr. Stewart was given an opportunity to speak with counsel, and that Mr. Sauve was given the opportunity to speak with a family member (his father), twice. I find it difficult to believe that the police would permit Mr. Stewart to speak to counsel and not Mr. Sauve, or that they would permit Mr. Sauve to speak to his father and not counsel, as he alleges. As I have said, his acknowledgement on video that he had expressed that he did not wish to speak to counsel confirms that he was given the opportunity to speak with counsel, and turned it down.
[60] The law is clear that accused persons may waive their rights to counsel. On the evidence here, I am satisfied that by the time he gave the videotaped statement, Mr. Sauve had waived his right to counsel. The police did not fail in the implementation component of providing Mr. Sauve with his rights to counsel. The police did not breach Mr. Sauve’s s. 10(b) rights.
Voluntariness
[61] Mr. Sauve was interviewed on video by Cst. I. Issa and Cst. S. Drugea for a period of approximately 40 minutes commencing at 9:51 p.m. on the day of his arrest. The interview took place after Mr. Sauve had been alone in a cell for about a couple of hours. During his time in the cell, he was given a meal. The interview started shortly after that.
[62] According to Mr. Sauve, the alleged threat/inducement was made during the interview when Cst. Issa told him “I hate for us to just to uh throw you in a cell and put you in court”. Mr. Sauve said the suggestion that he might be thrown in a cell had a big effect on him, and that his “mind changed at that point”. He said that at this point he started to get emotionally scared. He said he became concerned about his self and well-being, and was worried about his personal safety.
[63] The alleged threat/inducement and the subsequent interaction between the accused and the police is set out below:
S: um, um. See, I don’t exactly even know what happened, so it’s kind of hard for me to tell you about it.
II: No, no for sure. And, and I think, here’s the thing, it’s for, it’s for you it’s a chance to give us your side of the story. I hate for us to just to uh throw you in a cell and put you in court. You never got to say what happened, right?
S: Yeah
II: So, it’s not like around here to trick you or jam you up. We’re just trying to get your side of it to see who, what happened tonight.
S: Um, um.
II: ‘Cause I’ll tell you, I mean the offences (clearing throat) like they’re serious offences. Like any time there’s a gun involved.
S: Um, um.
II: It ups the ante a little bit, right?
S: Um, um.
II: So because they’re so serious, we want to make sure you get a chance to tell us what happened, what you know,
S: Um, um.
II: And then sometimes, there’s a simple explanation for things, right?
S: Yeah.
[64] Mr. Sauve also testified that the officers were persistent in asking the same questions over and over. He said they were pushing him to answer whether or not the answer was correct or accurate. He said he gave them answers because he was worried about being thrown in a cell. He said he answered their questions because he felt it was “necessary”, and he had no other choice. He said he thought if he told them what they wanted, given the way they were talking, he might lessen his penalty. He said the officers were hinting he was in a lot of trouble, and that this would be the smartest thing for him to do. He agreed that they were pressing him to tell them about any circumstances that might mitigate his situation.
[65] Mr. Sauve agreed that he was motivated to tell the officers that the events leading up to his arrest had not been his idea, so they would have that picture of him. He agreed this was for his benefit, to reduce the potential penalties he might face.
[66] Mr. Sauve maintained that he was being intimidated by the officers, and that “what the officer said a couple of times” scared him.
Voluntariness
[67] It is the Crown’s onus to prove beyond a reasonable doubt that the videotaped statement given by Mr. Sauve was voluntary. I find that the Crown has done so.
[68] There is a marked difference in the accused’s account of his experience of being interviewed on videotape and the manner in which he presents during the interview. At all times, Mr. Sauve appears comfortable with the officers. There are no signs he is intimidated in any way. There is no evidence of conditions that would render the interview difficult for him, let alone oppressive.
[69] I have considered the argument that the officer’s comments to the effect that he would hate to have to throw the accused in a cell amounted to a threat or inducement. I note that the comment is not a “quid pro quo” statement. After considering the context for the comment, and the response by the accused to the comment as demonstrated by his conduct on video, I do not find that this comment rises to the level of being a threat or inducement that vitiated the voluntariness of Mr. Sauve’s decision to speak. In other words, I find that his will was not overborne by that statement by the officer.
[70] While Mr. Sauve testified that at the moment the officer made this utterance, things changed for him and he became emotionally concerned, his demeanour on the videotape suggests otherwise. Mr. Sauve continued to behave in exactly the same fashion as he had previously. He continues to chuckle from time to time. He continues to look relaxed in his posture. He does not say or do anything that suggests that the comment had an impact on him. He does not offer additional information to the officers on the heels of the comment having been made.
[71] I do not believe Mr. Sauve’s viva voce evidence that he became emotionally concerned in this moment, and that this is why he decided to speak with the authorities. He had responded to police questioning before the alleged threat/inducement, and he continued to do so after.
[72] For instance, at the outset of the interview, Mr. Sauve told police “I don’t really know anything other than I was driving there and I was turning around and I was coming right back once I got there”. He had also told the police that he had come to Cornwall because his “buddy” had asked him to earlier that day, and that his buddy told him that they were coming to Cornwall to pick something up. In the immediate aftermath of the alleged threat/inducement, the accused does not offer any additional information. Much later, he made some statements about the extent of his knowledge that they would be picking up a gun. At all times, he paints his co-accused as the leader in the operation. In context, I do not believe the alleged threat/inducement had any impact on the accused at all.
[73] Rather, I find that Mr. Sauve made a conscious choice over the course of the interview to speak in a manner that would mitigate the authorities’ view of his involvement in the offence. Mr. Sauve’s testimony during the voir dire confirms that he was motivated to tell the officers that the events leading up to his arrest had not been his idea for his own benefit, to reduce the potential penalties he might face. I find that his motivation in that regard was not the product of an impermissible inducement or threat. As noted in Oickle at para. 57, such motivation on the part of an accused, even if it is promoted by something said or done by a person in authority, does not lead inexorably to the exclusion of a confession. I find that the accused’s motivation to provide information painting him as a lesser player in the offence was largely self-generated. His decision to talk was not made in circumstances where his will was overborne by a threat or inducement.
[74] I also do not find that this was a situation where the officer’s questioning was so persistent as to vitiate the voluntariness of the statement. The officers were entitled to be persistent in their efforts to obtain information from Mr. Sauve. There was nothing in their conduct during the interview that could be said to have resulted in an atmosphere that contributed to Mr. Sauve’s will being overborne.
[75] Having regard to all the circumstances and the principles of law set out in Oickle and elsewhere, I am satisfied beyond a reasonable doubt that the video statement made by Mr. Sauve is voluntary. The statement is admissible in evidence.
Madam Justice Laurie Lacelle Released: June 17, 2016