Court File and Parties

COURT FILE NO.: 126/15 DATE: 20160708 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Michael Sutton Defendant

Counsel: Laurie Tuttle, for the Crown Rob Kitto, for the defendant

HEARD: June 24, 2016 and July 7, 2016

BEFORE: Rady J.

Reasons for Judgment

[1] These are my reasons for granting the Crown’s application respecting the voluntariness of Mr. Sutton’s statement made to Detective Simone during his cautioned interview. There is no reasonable doubt that the statement was voluntarily given.

[2] Mr. Sutton is charged on a seven count indictment of assault, sexual assault and attempted murder.

[3] The evidence on this application includes a videotape of the interview, a transcript of it and the evidence of Detective Steve Simone and Officer Matthew Vanderidder of the London Police Service. A third officer involved in Mr. Sutton’s arrest, Officer Christopher Jackson did not testify. Counsel agreed that Officer Jackson made no offers or threats and did not offer any inducements designed to elicit a statement from the accused.

[4] Officer Vanderidder testified that in the early morning hours of October 23, 2014, he was dispatched to locate Mr. Sutton on outstanding warrants. He was directed to the Men’s Mission where he found him asleep in a dormitory-style room. The officer woke him easily and had no concerns about his sobriety.

[5] Officer Vanderidder gave the accused a couple of minutes to get up. He did not hurt him, did not raise his voice and did not unholster his service revolver. He described Mr. Sutton as cooperative. The officer arrested Mr. Sutton and explained why. He read him rights to counsel and caution, to which the accused acknowledged his understanding.

[6] The accused was taken to headquarters where he was handed over to Sergeant Skelton who facilitated a telephone call to a lawyer with whom the accused spoke. A cadet then escorted him to a cell.

[7] Detective Simone described his interview of the accused. The accused had been asleep in the cell, which he acknowledged could be cold and uncomfortable. The accused had just awakened and was yawning and groggy for a minute or two. He was steady when walking to the interview and the detective had no concerns about his sobriety. They went into the interview room where they took a seat. The detective was not armed.

[8] Shortly after the interview started, he got the accused a cup of coffee and offered him granola bars that were declined. He denied that he made any threats, offered any inducements or urged the accused in any way either before or after the interview. Detective Simone described his interviewing style as “laid back”. The accused talked more than other suspects and the interview was “free flowing”.

[9] The videotape of the interview reveals that the accused:

• he was alert, oriented and composed although early in the interview and in response to a question whether he had had an opportunity to speak to a lawyer, he did say his “mind didn’t work the greatest when I’m just woken up”;
• he was given a cup of coffee a few moments later;
• he was cooperative;
• he did most of the talking;
• his answers to questions were coherent and appropriate;
• he confessed to the offences but clearly denied the allegation of wilful damage;
• he wrote a letter of apology while Detective Simone was not in the room; and
• he appeared eager to describe what happened.

[10] It also shows that Detective Simone was courteous, respectful and low key.

The Crown’s Position

[11] The Crown submits that it has proved beyond a reasonable doubt that Mr. Sutton’s statement was voluntarily given. None of the hallmarks of a coerced confession are present to render it unreliable.

The Accused’s Position

[12] The accused submits that the Crown has not discharged its burden when one considers the totality of the evidence, including:

1. Mr. Sutton was arrested having been awakened in the wee hours of the morning and there is no evidence of how much sleep he had had;
2. he was deprived of food;
3. the cell in which he was housed awaiting the interview was uncomfortable;
4. the small room in which the interview was conducted created an oppressive atmosphere; and perhaps most importantly
5. the Crown has led no evidence respecting any interactions between the accused and other officers with whom he had contact that morning.

The Law

[13] The law regarding the admissibility of statements is well developed through a line of Supreme Court of Canada decisions, including R. v. Oikle, 2000 SCC 38, [2000] 2 S.C.R. 3, R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500 and others.

[14] The principles are helpfully summarized in Watt’s Manual of Criminal Evidence, 2013 Toronto: Carswell, as follows:

Para. 37.04

A confession that affords relevant and material evidence in respect of its maker, D, will not be admissible in respect of D unless P proves beyond a reasonable doubt that it was voluntary.

To decide whether a confession is voluntary, a judge must examine and evaluate all the circumstances surrounding the making of the statement. The approach is contextual. The evidence must satisfy the judge beyond a reasonable doubt of the voluntariness of the confession in order for the statement to be admissible.

The confessions rule is concerned with a broad definition of voluntariness. The predominant rationale for the rule, and the voluntariness requirement, is that involuntary confessions are more likely to be unreliable. The rule also protects the rights of the person charged without unduly limiting society’s need to investigate and solve crime.

Relevant factors for a trial judge to consider in deciding voluntariness include, but are not limited to evidence of i threats; ii promises; iii oppression; iv the operating mind requirement; and v police trickery.

The first four factors are not subject to a discrete inquiry, apart from the rest of the confessions rule. The inquiry into other police trickery is distinct because its more specific objective is to maintain the integrity of the criminal justice system.

Not every threat or promise will render a confession involuntary. Offers of lenient treatment and possibility of a reduced charge in return for a confession are likely to warrant exclusion. Offers of psychiatric assistance or other counselling in exchange for a confession do not per se vitiate. A contextual approach is required. To render a confession involuntary, a threat or promise does not have to be aimed directly at the suspect. Phrases like “it would be better if you told the truth” do not automatically require exclusion. Context controls.

Moral or spiritual inducements will generally not produce an involuntary confession because the inducement offered is not within the control of person in authority.

Despite the absence of a satisfactory definition, there can be no doubt that “oppression” has the potential to produce unreliable confessions. Amongst the many factors that can create an atmosphere of oppression are i depriving D of food, clothing, water, sleep or medical attention; ii denying D access to counsel; iii excessively aggressive, intimidating questioning over a long time; and iv the use of nonexistent evidence.

There is no exhaustive list of factors that may create an oppressive atmosphere.

A confession must also be the product of an operating mind. Persons who are in an hypnotic state, in shock after a motor vehicle accident, or in a state of extreme intoxication, for example, may not meet this requirement. The standard only requires, however, that D have a limited degree of cognitive ability. D must be able to understand what s/he is saying and to comprehend that the evidence may be used in proceedings against him/her. The confession must be the product of D’s free will exercising a choice whether to speak to a person in authority.

The primary concern in cases involving threats, promises, and oppression is with the reliability of the confession. The operating mind requirement and the inquiry into other police trickery focus more on the protection of D’s rights and fairness in the criminal process.

Analysis and Disposition

[15] It is clear from reviewing the videotape that no promises were made or inducements offered. Nor were there any threats or trickery. Detective Simone was courteous and respectful. He did not raise his voice or attempt to physically intimidate the accused. It is true that the interview room is somewhat small but it is not so cramped that the detective was seated sufficiently close to the accused to create a sense of physical oppression.

[16] Mr. Sutton clearly possessed an operating mind. There may have been initial grogginess but that soon passed. As already noted, he was oriented and coherent. There were no signs of intoxication. He answered appropriately when asked questions but it must be said that he did most of the talking. It is very clear he wanted to make a statement (notwithstanding his earlier conversation with a lawyer who no doubt cautioned him that he was under no obligation to do so). He was prepared to admit to some of the offences but clearly maintained his innocence with respect to the allegation of property damage.

[17] Officer Vanderidder and Detective Simone explained why the arrest occurred when it did. It clearly was not timed to take advantage of a sleepy accused but was a function of how busy the police were that day and the priority that was given to the case.

[18] There is no evidence that the accused was deliberately deprived of sleep. I acknowledge that he was arrested in the early morning hours after having been awakened. It appears that he slept in the police cell before being interviewed. He does not appear to be tired during the interview but rather is alert. He was also given some coffee and offered food. The interview itself was not excessively long in duration beginning at 9:02 and finishing at 11:02. And Detective Simone left the room for almost 30 minutes while the accused wrote a letter of apology to the complainant. Detective Simone did not coerce or pressure him to write the letter but offered the opportunity.

[19] Finally, with respect to any interactions with other officers, the decision in R. v. Dessouza, [2012] O.J. 275 (S.C.J.) is instructive. It reviews such decision as R. v. Menezes, 2010 ONSC 4601, [2010] O.J. No. 3758 in which Justice Hill wrote at paras. 19 and 20:

The facts here are a far cry from the circumstances in a case like R. v. Woodward (1975), 23 C.C.C. (2d) 508 (Ont. C.A.) where the prosecution failed to call persons in authority who had contact at all relevant times with an accused between his arrest and the making of a statement. There is no absolute rule that every person in authority irrespective of the degree of contact with the accused need be called on a confessional voir dire. Each case turns on its own facts. A flexible rule designed to examine the role of any police officer with real investigatory or custodial contact generally promotes meaningful scrutiny of relevant governmental conduct.

Not only the facts here, but also the relevant jurisprudence respecting the Crown’s obligation to call all persons in authority, support rejection of the accused’s argument.

[20] The police are not required “to account for every part of that period with respect to contacts with the accused”: R. v. W.G., [2010] O.J. No. 4484 (S.C.J.).

[21] In this case, there is no direct evidence or any other evidence that could reasonably support an inference that the accused had any meaningful contact with other officers. He had interactions with the cell sergeant and a cadet but there is no evidence that they attempted to influence him in any way. There was no hint or suggestion during the interview that there had been.

[22] For these reasons, I am satisfied beyond a reasonable doubt that Mr. Sutton’s statement was voluntarily made.

"Justice H. A. Rady" Justice H. A. Rady Released: July 8, 2016