CITATION: R. v. M.J.M., 2016 ONSC 5780
COURT FILE NO.: 7610/15
DATE: 20160915
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
M.J.M.
L. Mehkeri, for the Crown
E. McCooeye, for the Accused
HEARD: August 26, 2016
REASONS ON VOLUNTARINESS
VOIR DIRE
A.D. kurkE j.
Overview
[1] On January 13, 2014, members of the Ontario Provincial Police (“the OPP”) arrested the accused at his residence in Bruce Mines. After his arrest, the accused was transported by police to the Thessalon OPP detachment. The accused exercised his right to speak with counsel. Less than two hours after the arrest, Cst. Kevin Fairburn conducted an interview with the accused on videotape. The Crown seeks a voluntariness ruling with respect to the exculpatory video interview conducted with the accused by Cst. Fairburn.
Facts
[2] Police interviewed complainant D.G. on referral from the C.A.S. After the interview on January 10, 2014, police formed grounds to charge the accused with various offences involving improper sexual conduct towards his step-son 8-year-old D.G. between October 1 and mid-November 2013.
[3] The general picture of events is clear:
a. Cst. Laurie Graham prepared the Information to Obtain an arrest warrant with a “Feeney” endorsement, which was signed January 13, 2014.
b. OPP officers assembled that day in Bruce Mines under the general direction of Det. Cst. Kevin Fairburn to perform the arrest. At that time, Cst. Fairburn was in charge of the investigation, but upon his retirement after the case had been investigated, the case was transferred to Cst. Graham. Sgt. Keith Nicolle was assigned to assist Cst. Fairburn on the arrest.
c. Police in various vehicles waited at the north and south ends of the accused’s street from before 11 a.m. to receive word that the arrest warrant was granted.
d. After Cst. Fairburn and Sgt. Nicolle received word at 2:45 p.m. that the warrant had been signed, they attended at the accused’s residence. Shortly before 3:35 p.m., Cst. Fairburn knocked, and entered the residence through the unlocked door. He told the accused, who was coming downstairs, that he had a warrant for his arrest.
e. The accused, who was dressed in work clothes, was searched, and a cell phone was seized from him. He was handcuffed, and placed in the cruiser. He was told he was under arrest, provided with his rights to counsel, and cautioned about statements.
f. Cst. Graham was present at the arrest, but she had no immediate or meaningful contact with the accused. Indeed, although there were other officers present in Bruce Mines before the arrest, only Cst. Fairburn and Sgt. Nicolle had direct contact with the accused sufficient to engage analysis of their evidence as “persons in authority”.
g. It was a point of some concern to the accused that the arrest was done in full view of neighbours on his street, which left him feeling “small”. He testified that he was pushed over the hood of the police car for the search, and then handcuffed and pushed inside. Police did not recall other persons being present at the scene of arrest.
h. On the ride to the detachment, the accused was with Sgt. Nicolle, who said nothing, and Cst. Fairburn, who said very little. The accused spoke a lot, about various subjects.
i. The accused was searched again at the detachment, and lodged in cell #1 at the detachment. He was provided with a blanket, and advised that everything in the cellblock was video and audio-recorded. He was given the opportunity to speak with counsel, and arrangements were made for someone to look after the accused’s dog, at the request of the accused.
j. From about 5:24 p.m., Cst. Fairburn conducted an hour-long videotaped interview with the accused, which was monitored by Cst. Graham.
k. There was almost no evidence on the voir dire that any person in authority made any threat or promise to the accused at any time, to encourage him to give a statement, or offered him any inducement to get him to cooperate. On occasions during the interview, Cst. Fairburn encouraged the accused to “save himself”, which is the subject of defence submissions.
l. The atmosphere throughout was calm and voices were rarely raised, except when the accused occasionally displayed signs of agitation, such as when it was suggested to him in his interview with Cst. Fairburn that he perhaps had been abused by his own father.
[4] Among contentious points on the voir dire was whether or not the accused was strip-searched outside the cells at the OPP detachment. The evidence on the point can be summarized as follows:
a. Cst. Graham did not see the accused searched, and she disagreed that he was strip-searched. She did not know where Cst. Cameron, a female officer, was during the accused’s processing at the detachment.
b. Sgt. Nicolle denied that the accused was stripped bare, but did acknowledge that a standard search before lodging in the cells would involve removal of shoes and belts and jewellery. If a person was wearing several shirts, extra shirts might be removed. If a person made suicidal comments, there would be a strip search, but there was no reason for such a search in this case.
c. Cst. Fairburn testified that at the cells, the handcuffs were removed, and the accused’s work boots and extra shirt removed. Although Cst. Fairburn could not say whether the accused’s pants were removed, he did indicate that a lighter was found in the accused’s pants pockets. Cst. Fairburn stated that a strip search would be done in privacy in the cell area, away from public scrutiny. In cross-examination, Cst. Fairburn agreed that the accused was asked to take off his shirt, and that the accused’s pants were removed. Cst. Fairburn insisted that no women would have been present during the search.
d. The accused testified that he was brought into the detachment, pushed against the wall, and told to remove his clothing, including his underwear. Female police officers were present in the area, and laughed at how many pieces of clothing the accused had on. The accused claimed that he was “freezing”, and that he could see the highway through the open detachment door, as he stood naked during the brief search. His long underwear and undershirt were returned to him to wear in the cell, and he was given a blanket and told he could call a lawyer. When Cst. Fairburn collected him for his interview, the accused was given his pants and another shirt. Indeed, the accused comments that he is “pretty cold” at the commencement of the videotaped interview, when Cst. Fairburn is seen giving him an additional shirt, which the accused puts on.
[5] Another point of contention involved whether or not Cst. Fairburn properly indicated to the accused the reason for his arrest.
a. It was Cst. Fairburn’s evidence that he told the accused that he was under arrest for sexual assault right away in the accused’s house, and told him more formally in the back of the cruiser that it was for sexual assault on D.G. On Cst. Fairburn’s evidence, the accused did ask the reason for arrest, even after Cst. Fairburn had told him.
b. The accused testified that he was arrested only for assault while he was in the house, and that he thought the charge related to a neighbour with whom he had had difficulties. In the cruiser he was told the assault was on D.G., and he “went ballistic”. He was told later, when they were on Highway 17 en route to the detachment, that it was a sexual assault, which led him to rehearse a lot of his difficult history with D.G.’s mother and grandmother in front of the police.
[6] Also at issue was police knowledge of the accused’s intoxication by drug:
a. Police did not observe the accused to be intoxicated by drugs or alcohol. He responded appropriately to things said to him in the police vehicle, and appeared to understand things that were said to him. He displayed to police no signs of mental disorder.
b. According to the accused, however, he had smoked marijuana shortly before arrest, and he was stoned, and he told Cst. Fairburn he was “on weed”. And indeed, Sgt. Nicolle testified that he smelled marijuana at the accused’s house, but observed no indicia of impairment from the accused. The accused claimed that he rambled on in the interview because he was stoned and confused.
[7] In his testimony, the accused also testified to the following things:
a. The accused testified that when he was summoned downstairs at his house by police, he paused to put down the sledge hammer that he had been using on a project upstairs, before going down to the police.
b. The accused testified that in the cruiser on the way to the detachment, he was concerned because he had left his house unlocked, his “pot” out, and his guns unsecured. He was also worried about what would happen to his dog.
c. The accused testified that he understood what was going on in the police vehicle, but he stopped paying attention when Cst. Fairburn said that the assault was against D.G. When a sexual assault was specified, the accused said he was in shock.
d. The accused was indignant that Cst. Fairburn suggested in the videotaped interview that the accused’s father had sexually abused the accused. He stated, “if I wasn’t thinking properly, I would have had charges of assaulting police”.
e. When he was being interviewed, he understood that he was at a police detachment. He understood that he was on video. He understood that he was under arrest. He understood the questions that were asked, and agreed that some answers required more descriptive answers. He understood the responses that he gave. He was trying not to fall apart. His goal in the statement was to clarify everything. The police gave him a chance to talk, and he talked, to clarify everything, and tell police that D.G.’s mother and grandmother had “created this”.
Voluntariness
[8] The modern confessions rule has two main aspects. One aspect of the rule requires that the Crown prove, beyond a reasonable doubt, that a statement made by a suspect to a person in authority is voluntary in the sense that it has not been obtained by fear of prejudice or hope of advantage held out to him by a person in authority: R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38, at para. 24.
[9] However, since the Supreme Court of Canada decision in R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, Canadian courts have favoured a broader approach to the voluntariness rule, and have incorporated a more expansive aspect relating to whether the suspect has been deprived of the ability to choose between speaking or not, as a result of the conduct of persons in authority, other than by simply making threats, making promises or offering inducements: Oickle, at paras. 25-27; Hebert, at 166.
[10] The Court in Oickle, at para. 27, refers to this notion as “voluntariness, broadly understood.” However, this is not to be construed as a free-standing mechanism for assessing or condemning police misconduct. Rather, the conduct must somehow affect the suspect’s ability to make a free choice whether to speak or not: “Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession,” states the Supreme Court in Oickle (para. 47). As the quote demonstrates, the focus remains on voluntariness, and not on misconduct in and of itself.
[11] The Crown must also prove that the accused possessed an “operating mind”, in the sense that the accused must have a limited degree of cognitive ability, sufficient to give him or her the ability to understand what he or she is saying, and to comprehend that it can be used to his or her detriment in proceedings against the accused: R. v. Whittle, 1994 CanLII 55 (SCC), [1994] S.C.J. No. 69, at para. 45.
[12] Thus, relevant factors in assessing the voluntariness of a statement can include such things as threats or promises made, or oppressive circumstances in which authorities hold an accused, whether the accused possesses an operating mind that is capable of choosing to speak or not, and police trickery that can affect the accused’s ability to make an informed choice: Oickle, at paras. 47-67. The analysis of the factors is contextual; police conduct that may be innocuous in one circumstance may amount to oppression in another, where different factors are at play: “a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness”: Oickle, at para. 71.
Analysis
[13] The accused points to remarks made to him by Cst. Fairburn in his interview, that the accused should “save himself” by speaking to police. In all of the circumstances of this case, I am not of the view that such statements operated to deprive the accused of his ability to choose whether or not he would speak to police. The suggestion is akin to that in Oickle, that police suggestions that “it would be better” if the accused spoke were improper threats or inducements (paras. 79-80). Such language in the interview is nothing more than a “moral inducement”, and suggests no “quid pro quo” that could vitiate the statement.
[14] On the evidence before the Court, I am satisfied beyond a reasonable doubt that persons in authority who dealt with the accused did not threaten him in any way to get him to speak to them. Although other officers may have played a minor role in the case than were called upon to testify and account for themselves, I am satisfied that I have received the evidence of the relevant persons in authority. They offered the accused no promises or inducements to get him to speak. Those things are simply not large issues in the circumstances of this case.
[15] The accused submits that the issue falls to be determined based on my assessment of his evidence and the police evidence. The accused urges that I accept his evidence that:
a. The accused was partly stoned when arrested, and told police so;
b. The accused was handcuffed in public view with great personal embarrassment;
c. At the detachment, the accused was forced to stand against a wall, to remove his many layers of clothing and stand naked exposed to the public in the detachment, and potentially to those outside the detachment through an open access door, while police commented in mocking manner on his many layers of clothing; and
d. He was merely given a blanket for warmth, put in a cell, and eventually questioned.
[16] The accused submits that, if I accept his testimony over the police officers – concerning in particular, whether the accused was strip searched, or rendered completely naked – then the statement must be found inadmissible to protect the integrity of the justice system. This argument appears to rely on the broader second aspect of the confessions rule. On this view, the fact that the evidence of the police, replete with contradictions and omissions, has been rejected on the issue of the strip search, would require the rejection of the accused’s statement, as its admission would “shock the conscience of the community”.
[17] But I do not understand that to be the law in Canada. The modern Canadian confessions rule, in either of its aspects, looks to the voluntariness of the statement. If police conduct, in the circumstances of the particular case, acted to deprive the accused of his ability to choose whether to speak to police or not, then the resulting statement must be excluded.
[18] In my view, even if I accept the evidence of the accused, which I do find to be more coherent and compelling than that offered by the police witnesses on the issue of the strip search, my decision on the statement is still a voluntariness decision. My task is not to act as champion of the justice system, but to assess the statement in the context of the relevant voluntariness factors at issue.
[19] In this case, I take into account, among other things:
a. the accused’s humiliation at being arrested in view of his neighbours;
b. the accused was explained the reasons for his arrest, his rights to counsel, and cautioned, all prior to his videotaped interview;
c. the accused’s sense, generated, I find, by a combination of minor drug intoxication and the stress of arrest, that he was not adequately made aware for some time about the reasons for his arrest;
d. the accused’s embarrassment and discomfort at being compelled to strip at the detachment;
e. the accused’s agitation at being told that Cst. Fairburn believed that the accused’s father may have abused the accused;
f. the accused had been smoking marijuana;
g. the accused was left in long johns and a single shirt with a blanket in a cell for a period of time, and did indicate that he was very cold at the start of the interview;
h. prior to speaking with Cst. Fairburn, the accused was given the opportunity to consult counsel;
i. the accused demonstrated by his conduct from arrest through interview that he remained in control of himself and his faculties, and understood what was going on around him. He himself spoke of putting down the sledge hammer before meeting police, being concerned about whether his house, marijuana, and guns were secure, and keeping himself from assaulting Cst. Fairburn after the latter’s suggestion about his father. He asked for assistance for his dog;
j. When the accused was given the opportunity to speak, he gave the majority of the statement with little or no prompting. While the accused was at times asked pointed questions, or offensive questions, Cst. Fairburn remained polite with him;
k. Cst. Fairburn did suggest to the accused that he save himself. I considered such comments innocuous above, but I still consider them in the mix of factors at issue.
[20] In considering all of the circumstances of this case, I am satisfied beyond a reasonable doubt that nothing done by persons in authority deprived the accused of his ability to choose to speak to police about the charges or not. The accused at all times had an operating mind. Nothing that the police did created an oppressive atmosphere that affected the accused’s ability or willingness to speak. However the accused may have been affected by his public arrest, by the vague information he felt he was given about the reasons for arrest, by his intoxication by drug, and by his strip search, he remained at all times capable to choose whether to speak to authorities or not. The accused chose to speak, and he did speak, voluntarily.
[21] I find, beyond a reasonable doubt, that the statement given to Cst. Fairburn by the accused is voluntary, and admissible for any purpose at this trial, at the discretion of the Crown.
A.D. KURKE J.
Released: September 15, 2016
CITATION: R. v. M.J.M., 2016 ONSC 5780
COURT FILE NO.: 7610/15
DATE: 20160915
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
M.J.M.
REASONS ON VOLUNTARINESS VOIR DIRE
A.D. KURKE J.
Released: 20160915