DATE: 20160913 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N : HER MAJESTY THE QUEEN – and – ANTHONY ALAS
Scott Rogers and Tim Edwards for the Crown Monte MacGregor and Stephanie Boydell for Mr. Atlas
HEARD: April 18, 19, 25 and 26, 2016
R U L I N G ON VOLUNTARINESS
TROTTER J :
INTRODUCTION
[1] Mr. Alas was charged with second-degree murder. It was alleged, that on March 15, 2014, he killed Masud Khalif outside a Toronto Bar. He was arrested the next day and submitted to an interview with Toronto Police Service (TPS) officers.
[2] The Crown tendered Mr. Alas’ interview as part of its case. Mr. Alas contested the voluntariness of his statements. The main issue was whether the statements were the product of an atmosphere of oppression caused by the failure of the police to provide Mr. Alas with medication for a stomach ailment.
[3] At the end of the voir dire, I found that the statement was voluntary beyond a reasonable doubt, with reasons to follow. [1] These are my reasons.
THE FACTS
(a) Arrest and Transport
[4] At 10:00 p.m. on the day after Mr. Khalif was killed, Mr. Alas was arrested at gunpoint in the stairwell of his apartment building. He was smoking marijuana with a friend, Patricia Issacs. After Mr. Alas was handcuffed, officers got some shoes for him. He was allowed to say goodbye to his girlfriend, Catherine Descouteaux [2] and their young son.
[5] While being transported, Mr. Alas told the officers that he needed prescription pills for his stomach. As he said, “’cause if I don't take my pills and stuff I start getting…my stomach starts like burning and stuff.” One officer said, “Okay, we’ll call somebody up to grab it for you.” They did just that. When Mr. Alas entered the booking hall at the police station, his medications were already there. [3]
[6] Returning to the ride to the police station, the escorting officers asked Mr. Alas about whether any of his medications made him drowsy. He mentioned that one of them, Suboxone, did “sometimes, not all the time.” He said he took a pill around 7 p.m., but he was “okay.” Mr. Alas told the officers that he smoked marijuana that day. He said he smoked marijuana frequently because it helped with his stomach. He said it was not a big deal for him. Mr. Alas agreed that he was “clear headed” and “okay.” The following exchange occurred in the car:
Officer: ….I just wanna get an idea to make sure that you’re of clear mind and you’re speaking to me Mr. Alas: Yeah, yeah. Officer: You understand what’s going on, right? Mr. Alas: Yeah, I don’t drink either, so I’m not drunk.
[7] The escorting officers were polite and accommodating with Mr. Alas. They showed concern for his wellbeing. For instance, they adjusted the heat in the car when Mr. Alas complained of being cold.
(b) At The Station: The Videos
[8] The following is a summary of events that were captured by video recordings. The voir dire testimony of those mentioned is summarized under heading (c), below.
[9] The same professional approach of the transporting officers continued when Mr. Alas was paraded in the booking hall. Staff Sgt. Kevin Murrell (“Murrell”) immediately asked Mr. Alas about the numerous medications that were already on the counter. Mr. Alas told Murrell about his diabetes and his stomach ailment. After some discussion, Murrell said, “I’m not gonna go through it all right now but at some point we’ll let you take that medication. You’ll get what you need when we – when we go through it, okay?” Mr. Alas responded, “Ok.”
[10] Shortly afterwards, Murrell learned that Mr. Alas had smoked marijuana. He inquired into the quantity and timing of the consumption. Mr. Alas said that he was a regular user and that it helped with his stomach. The following exchange occurred:
Murrell: Okay. And can I ask you how you feel now in relation to the marijuana use? Mr. Alas: I’m okay. Like I – don’t get high, like I feel neutral during the whole day. I just – like I said, I just use it for my stomach now – like I just – I’m so immune to it that I really don't get that high anymore.
[11] While Mr. Alas was strip-searched, Murrell had a discussion with the booker, Stephen Marchetti (“Marchetti”), a civilian member of the TPS. As Marchetti logged Mr. Alas’ medications into a computer, Murrell said, “he’s been smoking marijuana…so we’ll give it some time…” When the search was over, Murrell discussed medications with Mr. Alas again. He clarified that Mr. Alas needed to take stomach medications that evening.
[12] While this was going on, a homicide investigator, Detective Sgt. Stephen Ryan (“Ryan”), was busy at the station. He conducted a videotaped interview of Ms. Descouteaux. This lasted from 12:17 to 1:50 a.m. He started the videotaped interview with Mr. Alas at 2:25 a.m.
[13] As the interview started, Mr. Alas appeared to be in good spirits. After some small talk, Ryan asked Mr. Alas “what happened?” The following exchange took place:
Alas: Just one thing, sorry I, I know it’s not got to do with this, but um, like I was supposed to take my pills like around 10:00 tonight and the guy came in saying that he is not sure if he is gonna give me the pills tonight or not, because the Sunday ones are gone. Which I didn’t know this yesterday, and I took the Sunday ones by accident yesterday. Ryan: What are the pills for? Alas: My stomach and like the burning and the acids in my stomach and now I’m dying to have them. Ryan: Okay. Well, we’ll look into that, okay. I’m not so sure that they…. Alas: …Yeah, I know. I know. I was just asking about that. Ryan: …how that works. Uh, but I will check into it for you. But if you start to feel uncomfortable um and you want a break, let me know. Alas: Okay.
[14] After some prompting, Mr. Alas explained what led to the death of Mr. Khalif. In response to an open-ended question, he provided an uninterrupted narrative of events, which ended with: “And once they [Descouteaux and Issacs] jumped on him, I just – I just, just stabbed him in the throat and that was it.”
[15] After a few follow up questions, Mr. Alas raised the issue of his medication again. He said, “I’m sorry, just that my stomach is burning because of those pills. Like, like I really need those pills.” Ryan asked a few more questions about them. In the exchange that followed, Mr. Alas said that he was supposed to take his pills the previous night at 10:00 p.m. but he was not able to do so because of his arrest. Importantly, the following exchange took place:
Ryan: Okay. Can we – can we try to go for a, a bit longer and I will uh…. Alas: sure. Ryan: And then you can tell me how you feel… Alas: Sure.
[16] A few minutes later in the interview, an event occurred that requires mention. When Ryan was about to show some photographs to Mr. Alas, Mr. Alas can be seen to wince, as if he were in pain. The interview continued for another 45 minutes, ending at 3:35 a.m.
[17] At 4:10 a.m., Mr. Alas was taken to the hospital. He returned to station at 5:35 a.m. Mr. Alas received his medications when he was at the hospital, except for insulin, which the doctors did not believe he required after testing his blood sugar.
(c) At the Station: Competing Testimonial Accounts
[18] The videotape evidence provides the basic foundation for determining the voluntariness of the admissions made by Mr. Alas during the interview. However, evidence was heard on the following issues: (a) the impact of Mr. Alas not receiving his stomach medication; (b) whether Ryan had spoken to Mr. Alas before commencing the interview captured on video; and (c) whether Mr. Alas had been led to believe that Ms. Descouteaux might be arrested.
[19] Murrell testified that he understood that Mr. Alas required various medications, including one for his stomach. After Mr. Alas left the booking hall, Murrell did not see him until later in the morning, when he was taken to the hospital.
[20] Murrell testified that he made the decision not to give Mr. Alas his stomach medication because of the marijuana that was in his system. For the sake of safety, he thought he should wait for it to dissipate. Similarly, he was not prepared to let Mr. Alas inject himself with insulin. Murrell said that Mr. Alas made no compliant to him about discomfort or stomach pain. Murrell did not believe that Mr. Alas’ situation was severe.
[21] In cross-examination, Murrell was asked about dealing with detainees in pain. He said that he would prioritize a person’s urgent medical needs an interview. However, he did not know what was going on in the interview room with Ryan.
[22] Marchetti testified about the events at the station that night. However, he was extremely busy with multiple prisoners and his recollection of dealing with Mr. Alas was understandably somewhat vague. Marchetti inventoried Mr. Alas’ medications. He testified that it was Murrell’s responsibility to decide if they should be administered. After Mr. Alas was paraded and searched, he was put in an interview room. Marchetti did frequent cell checks, every half hour, to ensure that his detainees were not in distress. Marchetti said he had a brief discussion with Alas in an interview room, but he could not remember what it was about. He said that, if Alas had complained of pain or required medication, he would have told Murrell.
[23] As already noted, Ryan interviewed Ms. Descouteaux from 12:20 a.m. to 1:50 a.m. He testified that, for the next half an hour, he spoke to Mr. Alas’ parents, and started the interview with Mr. Alas at 2:25 a.m. Before starting the interview with Mr. Alas, Ryan said that he did not speak to Murrell about Mr. Alas. From his perspective, the wellbeing of detained prisoners is always the responsibility of the Staff Sgt.
[24] Ryan said that the first time he saw Mr. Alas was in the room where the interview was conducted. He denied speaking to Mr. Alas at any time before the interview. Ryan assumed that Mr. Alas had been lodged in a cell, not another interview room. Ryan acknowledged that, at the beginning of the interview, he said to Mr. Alas, “I know you are anxious to talk.” However, he said that this was not a reference a prior conversation.
[25] Ryan learned of Mr. Alas’ medical issues during the interview. He thought Mr. Alas was complaining of acid reflux or heartburn. While Mr. Alas expressed concern for his medication, Ryan did not think his discomfort was significant and that his symptoms seemed to dissipate. He testified that, had Mr. Alas been a great deal of pain, he would have stopped the interview. But this was not what he observed. Ryan acknowledged that the videotape of the interview appeared to show Mr. Alas wincing in pain at one point. Ryan said that he did not notice it at the time because he was organizing papers and photos. Had he seen it, this would have caused him concern. After Mr. Alas agreed to continue with the interview, and then confirmed that he would let Ryan know if he needed to stop, Mr. Alas raised no further complainant about his stomach. Ryan believed that Mr. Alas was content to continue.
[26] Mr. Alas testified that he was diagnosed with Type I diabetes at 14 and requires insulin. His stomach problems started at 19, occasionally resulting in hospitalization. He described his condition as gastroparesis. He took medication two times a day (morning and night). Mr. Alas explained that, without medication, he suffered severe pain and sometimes vomited. He also took a drug called Suboxone, which made him feel somewhat high and unable to concentrate.
[27] Mr. Alas smoked marijuana to deal with his stomach pain and to relax. On the day he was arrested, he consumed about 4 to 5 grams of marijuana. He was consuming a gram with Ms. Issacs when he was arrested. He took a dose of his stomach medication earlier in the day. He was arrested before he could take his second dose. Moreover, he mistakenly took his Sunday medication on Saturday. Consequently, when he arrived at the police station, it appeared as if he had already taken his medication for the day. However, he explained this to the officers.
[28] Even though he was arrested at gunpoint, Mr. Alas testified that, when things calmed down, the police treated him well. After being booked, Mr. Alas said that he was placed in an interview room, where he fell asleep. Mr. Alas said that he first met Ryan in this room. He told Ryan he did not want to speak, but Ryan persisted, mentioning that Ms. Descouteux might be arrested. This worried Mr. Alas and he became concerned about his son. Mr. Alas explained that this was why he decided to speak and take the blame for everything. He also said that he continued to speak so that he could get access to his medications sooner.
[29] Mr. Alas became nervous and concerned that, if he did not speak, he would make matters worse. Mr. Alas was tired because of his pills and marijuana. He said, “I was not 100% there.”
[30] Mr. Alas said, before the formal interview with Ryan, other officers came into the interview room to ask him a few questions and to facilitate contact with duty counsel. Mr. Alas’ memory was hazy on this issue. Mr. Alas said he was interviewed by Ryan in a different room.
ANALYSIS
(a) Basic Principles
[31] The contemporary confessions rule is reflected in the Supreme Court’s decisions in R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 (S.C.C.), R. v. Spencer (2007), 2007 SCC 11, 217 C.C.C. (3d) 353 (S.C.C.) and R. v. Singh (2008), 2007 SCC 48, 225 C.C.C. (3d) 103 (S.C.C.). Oickle clarified certain concepts, or categories of cases, for the purpose of determining voluntariness – threats and inducements, the lack of an operating mind, the existence of oppressive circumstances, and the use of extreme police trickery. These are handy markers or signposts in the voluntary analysis. However, the critical question is whether the will of the accused was overborne by the conduct of the police and the accused-police encounter. There is no onus (evidentiary or otherwise) on the accused person to bring his/her case within any of the Oickle categories. The onus is on the Crown to establish beyond a reasonable doubt that the will of the accused was not overborne.
(b) Application
[32] The Crown has proved beyond a reasonable doubt that the statement was voluntary, in the sense that Mr. Alas’ will was not overborne by the police.
i. An Operating Mind
[33] I start with Mr. Alas’ mental condition when he was arrested. He was apprehended while he was smoking marijuana in a stairwell. He had taken Suboxone earlier in evening.
[34] Despite the ingestion of these substances, it is beyond all doubt that that Mr. Alas had an operating mind. The Supreme Court of Canada defined an “operating mind” in R. v. Whittle (1994), 92 C.C.C. (3d) 11 (S.C.C.). As Sopinka J. said at p. 31:
The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused.
This formulation was adopted in Oickle, at pp. 351-352.
[35] Mr. MacGregor did not press this issue in his submissions. However, in his testimony, Mr. Alas suggested otherwise. I find that Mr. Alas exaggerated the effects of marijuana and Suboxone. His claim of being confused was contradicted by the observations of all officers who interacted with him that night. Mr. Alas’ position is also undermined by his own words that night. He told anyone who asked that he was feeling fine. He told some officers that, due to his frequent use of marijuana, it had a negligible effect on him. Moreover, the video recordings belie any complaint that Mr. Alas was in a compromised state. He presented on video in much the same manner as he did while testifying – aware, lucid and responsive.
ii. Threats, Promises or Inducements
[36] Mr. Alas made some suggestion that he was induced into making a statement in order to prevent his partner, Catherine Descouteaux, from being arrested. As Mr. Alas testified, he decided to “take the fall” for the killing.
[37] I am satisfied that Mr. Alas was not told that Ms. Descouteaux might be arrested. Mr. Alas said that this occurred during a prior, unrecorded interview with Ryan. However, I reject the suggestion that there were two interviews. On all of the evidence, it does not make sense. Ryan was busy interviewing Ms. Descouteaux for about two hours before interviewing Mr. Alas. It is true that there was a 35-minute gap between the Descouteux interview and the interview of Mr. Alas. I accept Ryan’s evidence that he was speaking to Mr. Alas’s parents during this time.
[38] There are other factors that confirm this conclusion. First, I accept Ryan’s evidence that he believed that Mr. Alas had been detained in a cell before being brought to the interview room where Ryan first encountered him. One ought never to be overly influenced by demeanour, especially when considering the testimony of a police witness who has testified countless times. However, I was struck by Ryan’s expression of surprise to hear that Mr. Alas had been housed in another interview room, and not in a cell. I accept his evidence on this point.
[39] Secondly, during the videotaped interview, Ryan advised Mr. Alas that he had already spoken to Ms. Descouteaux. There was no discussion of her being arrested. As Mr. Rogers demonstrated during a skillful cross-examination of Mr. Alas, Ms. Descouteaux’s name was mentioned 49 times during the course of an interview that lasted approximately 70 minutes. At no time did Mr. Alas ask if she would be arrested.
[40] Mr. Marchetti interacted with Mr. Alas as he performed his routine checks that night. However, being a civilian member of the TPS, he was not part of the investigation. I doubt that he had any knowledge of the case against Mr. Alas, or Ms. Descouteaux’s involvement. Therefore, Marchetti was not the source of Mr. Alas’ belief.
[41] I am satisfied beyond a reasonable doubt that nobody offered any threat or inducement to Mr. Alas concerning the legal situation of Ms. Descouteaux. If Mr. Alas did entertain a belief or hope that, by giving a statement, he might shield Ms. Descouteaux from liability, it would have been “self generated”: see R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212 (cited in Oickle, by Iacobucci J. at pp. 349-350).
iii. Oppressive Circumstances
[42] I turn now to the question of oppression. This aspect of the voluntariness rule was addressed in Oickle. Justice Iacobucci described this concept at pp. 350-351:
If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions. Alternately, oppressive circumstances could overbear the suspect's will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession.
Under these circumstances, it is no surprise that the Court of Appeal concluded the statement was involuntary. Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions. Such a confession is not voluntary…. For similar examples of oppressive circumstances…… Without trying to indicate all the factors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time. [emphasis added]
[43] The presence of oppressive circumstances, standing alone, does not necessarily render a statement involuntary. As the Court in Spencer clarified at pp. 359-360, the touchstone of the voluntariness rule is whether the will of the accused person is overborne by the conduct of the police and the circumstances of the accused. It follows that not all privations lead inexorably to a conclusion that the accused’s will has been overborne. It will depend on all of the circumstances: Oickle, para. 71. See also David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 356.
[44] There are numerous examples of oppressive circumstances in the case law. In R. v. Hoilett (1999), 136 C.C.C. (3d) 449 (Ont. C.A.)), the Court of Appeal overturned a conviction based on an atmosphere of oppression that existed when the accused provided a statement. Mr. Hoilett was intoxicated when he was arrested and left naked in a cold cell for two hours before being provided with inadequate clothing. He was awakened in the middle of the night, after sleeping for a very brief period, and subjected to questioning, during which he fell asleep five times. He was even denied a tissue to wipe his nose.
[45] Writing for the Court, Feldman J.A. concluded that it was “impossible” (p. 459) for a judge to be satisfied beyond a reasonable doubt that the statement was not induced by the oppressive conduct of the police. Speaking in broader terms, Feldman J.A. said (at p. 458):
Oppressive conduct by the police, in and of itself, will not in every case render a statement of an accused inadmissible as involuntary. There may be circumstances where an accused person has the self-confidence to withstand the more subtle intimidation that is communicated by the police through an atmosphere of oppression. Or an accused may have his or her own reasons for believing that it is in their interests to speak to the police so that oppressive police conduct may not have the effect of making a statement involuntary.
[46] In R. v. Slater, 2014 ONSC 1562, the 70-year-old accused was diabetic and had high blood pressure. It was argued that his statement was involuntary because the police failed to provide him with drops to relieve pressure that had built up in his eyes. Finding that the police did not intentionally withhold medications from the accused, and considering all of the circumstances, Parfett J. held that the statement was voluntary.
[47] A different result was reached in R. v. S.E.C., 2009 MBQB 242. The accused argued that an atmosphere of oppression was created by the refusal of the police to provide him with blood pressure medication, despite repeated requests. However, many other factors were in play in that case. In finding the statement involuntary, Duval J. listed the following factors (at para. 29):
….the totality of the circumstances surrounding the taking of the statement, including the circumstances itemized at para. 21, [4] the failure to provide the defendant with his medication despite five requests for it, the continued questioning over an extended period of time despite the defendant expressing his wish (on 13 occasions) to follow his lawyer's advice not to make a statement, requests which were all effectively ignored to his knowledge, his state of intoxication and apparent drowsiness, and the negative reaction of the officer when he closed his eyes, all during an eight and one-half hour period of time, during the early morning hours between 2:00 a.m. and 10:00 a.m., without any opportunity to rest and without nourishment, all lead me to conclude that the Crown has not satisfied the burden of proving beyond a reasonable doubt that the statement was made voluntarily.
[48] As these cases, and others, demonstrate, an atmosphere of oppression is a factor to be considered along with all other evidence in deciding whether the Crown has proved that the will of the accused was not overborne.
[49] I have some concerns about how Mr. Alas’ medical needs were addressed by the police. I am satisfied that Murrell and Marchetti treated Mr. Alas well and were conscientious in addressing their minds to the medication issue. Mr. Alas was led to believe that he would receive his stomach medication. However, it appears that Murrell and Marchetti changed their minds, or decided to delay administration of the stomach medication based on Mr. Alas’ self-reported consumption of marijuana. It is unclear whether this was clearly conveyed to Mr. Alas.
[50] Once Detective Ryan entered the picture, I was a little unclear who was actually responsible for Mr. Alas’ physical well being. However, there is no doubt that Ryan was in charge of the interview. When Mr. Alas raised the issue of his medication, Ryan probably should have looked into the matter more thoroughly. He could have easily walked down the hallway to speak to Murrell or Marchetti.
[51] Despite these lapses, I am satisfied beyond a reasonable doubt that the will of Mr. Alas was not overborne. With the exception of the gunpoint arrest, the police were polite and gentle with Mr. Alas. They showed concern for his wellbeing throughout the course of the night. They were attentive to his requests, even if they were unable to completely fulfill them. The interview with Ryan was not particularly lengthy. The tone of the interview was calm. Ryan never raised his voice with Mr. Alas and the encounter was not at all confrontational. The questions were mostly open ended. The mood was relaxed.
[52] In terms of Mr. Alas’ discomfort, Ryan could have done more to follow up on the issue. However, in a calm and polite manner, he asked Mr. Alas if they could continue. Mr. Alas said that they could. He asked Mr. Alas to tell him if it became a problem. Mr. Alas said that he would. By the end of the interview, Mr. Alas seemed somewhat relaxed. He did not present as a person in distress. His will was not overborne by the circumstances in which he found himself, nor by anything said or suggested to him by the many officers he encountered that night.
iv. Other Police Trickery
[53] There was nothing in the record that would engage an assessment of this aspect of the confessions rule.
CONCLUSION
[54] For these reasons, I ruled that the Crown proved the voluntariness of Mr. Alas’ statement beyond a reasonable doubt.
TROTTER J.
RELEASED: September 13, 2016
Footnotes
[1] Mr. Alas was subsequently found guilty of second-degree murder and has been sentenced.
[2] Ms. Descouteaux and Ms. Issacs were key figures in this trial. They were both involved in the altercation leading up to the stabbing of Mr. Khalif.
[3] Due to the number of detainees at the station that night, there was an hour delay before Mr. Alas was brought into the booking hall.
[4] In para. 21, Duval J. said: “The only requests made by the defendant were for water and a cigarette, which were provided, and a request to use the washroom, which request was also met. He was not offered food or coffee, nor did he make a request for same. He was not permitted to sleep.”