CITATION: R v. Picard, 2016 ONSC 6424

COURT FILE NO.: 12-M7874

DATE: 2016/10/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Adam Picard

Accused

Dallas Mack and James Cavanagh, for the Crown

Lawrence Greenspon and Eric Granger, for the Accused

HEARD: September 15, 2016

REASONS FOR Decision

Parfett J.

[1] Crown seeks to admit two statements made by the accused, Adam Picard, to police. For the reasons that follow, the statement of June 19, 2012 is not admissible but the statement of June 26, 2012 is.

[2] The accused made five statements in total. Only the first two statements are the subject of this motion. The two statements of July 30, 2012 and December 12, 2012 were not litigated during the course of this motion. The statement of June 1, 2016 is conceded by defence to be voluntary and admissible subject to an argument in relation to editing.

Background

[3] The accused is charged with the first degree murder of Fouad Nayel. Mr. Nayel went missing on June 17, 2012 and his remains were found six months later in a remote wooded area near Calabogie, Ontario. A month after that, Mr. Picard was arrested and charged with the murder.

[4] On June 17, Nayel was expected to meet his father for Father’s Day. It was a Sunday. He never showed up. He also missed work the next day and on June 19, his family filed a missing person’s report. Nayel’s father had been able to obtain some cellphone records for his son’s phone and there were several people Nayel had called that fateful morning, including Adam Picard.

June 19, 2012 statement

[5] On June 19, 2012, Cst. Rebecca Vanderwater was working in the missing persons section of the Ottawa Police Service. On that day, she was tasked with investigating the disappearance of Fouad Nayel. This case was not her first missing person’s case, but it was the first that resulted in criminal charges.

[6] Her first step was to contact family members and she spoke with Nayel’s parents. They said it was out of character for Nayel to be out of contact with his family. They advised her that they had obtained some cellphone records. Nayel’s father also told Vanderwater that he believed Nayel had been in the process of arranging a large drug deal and that Nayel’s phone had been turned off since the day he disappeared.

[7] Nayel’s cousin, Adam Mounzer, confirmed to Vanderwater that Nayel had been organizing a large drug deal. In addition, Mounzer told Vanderwater that he had spoken to Nayel early on the Sunday morning and Nayel had said he was on his way to Petawawa, Ontario.

[8] The cellphone records indicated that an outgoing call had been made at 11:07 a.m. on June 17, to a number that was registered to Adam Picard. It was the last outgoing call made on Nayel’s phone.

[9] Vanderwater called Picard at 2:30 p.m. on June 19 and spoke with him for 12 minutes. She called him again shortly after the first call when she realized she had forgotten to ask for contact information for one of the people Picard mentioned in that call. She could not reach Picard and left a message. She did not make any notes of what she said in her message. Some 20 minutes after that, Picard called Vanderwater, but she was unavailable and he left a message. Again there are no notes of what Picard said in his message. Finally, later that evening, Vanderwater succeeded in reaching Picard and spoke to him for four minutes.

[10] Vanderwater took notes of the first conversation she had with Picard. She testified that her notes were a summary of what was said. She did not take notes of any of the questions she asked and had no present memory of any questions she asked. On the other hand, she said the objective of the call was to learn what the connection was between Picard and Nayel and the purpose of their June 17 call. Any questions she asked were to further these objectives. At the time of calling Picard, Vanderwater had not checked his name on the police internal database. She did not know Picard.

[11] Picard said he had spoken to Nayel at 11 a.m., on June 17. Earlier that day, they had arranged via text message to go out to drive their all-terrain-vehicles. Picard’s brother was originally supposed to go with him, but his brother cancelled at the last minute so Picard called Nayel to invite him to go instead. Nayel initially agreed and they were supposed to meet at 10:45 a.m., but Nayel texted Picard that he was running late. Picard went to the Loblaws at 11 a.m. Nayel then called him and cancelled. Picard said he did not see Nayel that day and had not heard from him since. Picard also said Nayel did not mention to him that he was going to Petawawa.

[12] Vanderwater testified that she asked Picard how he came to know Nayel and Picard told her that they had met through his cousin. Vanderwater failed to get Picard’s cousin’s contact information during the call and therefore decided to speak to Picard again. When she reached Picard the second time, Vanderwater went over the earlier information Picard had provided and made some corrections. She also obtained the cousin’s contact information. Instead of writing a separate set of notes for this second call, Vanderwater added the new information to her original set of notes.

[13] Vanderwater testified there was limited new information received during the second call, but she agreed in cross-examination that apart from certain specific items of information, she cannot be sure what information was received in the first conversation versus the second conversation.

June 26, 2012 statement

[14] Sgt. Wayne Niemi interviewed Picard on June 26, 2012 at the police station. The interview was videotaped.

[15] Prior to asking Picard to come to the police station for an interview, Det. Niemi spoke to Picard on the phone. Det. Niemi was uncertain of the exact date he spoke to Picard and he had no notes of the conversation. However, he recalled that Picard told him that he and Nayel had exchanged text messages on that Sunday and he read those messages to Det. Niemi. Det. Niemi asked Picard to save the text messages and also to come into the station for an interview. Det. Niemi believed he offered Picard several possible dates and times and Picard chose June 26 in the morning. Det. Niemi did not have any notes indicating specifically how the interview was arranged.

[16] At the time of requesting the interview with Picard, Sgt. Niemi indicated that he knew the following:

• It was out of character for Nayel to not show up for Father’s day;
• Nayel loved his father and had planned to take him out for Chinese food;
• In addition, that day was the wake for Nayel’s uncle and again it was not like him not to attend;
• Picard was one of the last people to speak to Nayel;
• Police had received information that Nayel was a small-time marijuana dealer and it appeared that Nayel had been organizing a major drug deal;
• Nayel’s father had given Det. Niemi some paper with notes in Nayel’s handwriting. On one piece of paper was Picard’s name and cellphone number; and
• Det. Niemi did not think ‘anything good’ had happened to Nayel, but at that time, police did not have any grounds to believe that a criminal offence had been committed.

[17] Picard came to the station on June 26, 2012 at 11:40 a.m. Det. Niemi met Picard in the lobby of the station. Although he was not sure, Det. Niemi believed that he was elsewhere in the station when Picard arrived and that he was paged to go to the lobby to meet him. It was admitted by defence that in the ten minutes between Picard’s arrival and when he met Det. Niemi, there was no conversation with any other police officer that could impact on the voluntariness of the statement. During the walk to the interview room, Det. Niemi stated he did not say anything to Picard. He testified that he did not threaten, promise or say anything to induce Picard to speak to him. Det. Niemi said that Picard was calm throughout his dealings with him that day.

[18] Before the videotaped statement started, Picard was placed under oath. The commissioner for oaths told Picard that anything said in the interview or earlier could be used in laying criminal charges.

[19] The content of this interview is similar to the information Picard provided to Vanderwater in her telephone conversation with him.

[20] Det. Niemi testified that Picard was never told he did not have to speak to police. Nor was he warned that anything anyone had said to him previously should not influence him in speaking to the police on this occasion. Picard was not asked if he wanted to speak to a lawyer because according to Det. Niemi, Picard was not a suspect and he would only caution someone who was a suspect.

[21] Det. Niemi stated that Picard could have left at any time during the course of the interview. However, he conceded on cross-examination that there was only one door into the interview room and that Picard was never specifically informed that he could leave if he wished.

[22] At the end of the interview and off camera, Det. Niemi asked Picard to sign a release of cellphone information.[^1] He had intended to seize Picard’s cellphone. However, Picard showed him the series of text messages that he and Nayel had exchanged on the day Nayel disappeared. Det. Niemi came to the conclusion that Picard had had no involvement in Nayel’s disappearance and therefore decided not to seize the cellphone.

[23] Under cross-examination, Det. Niemi agreed that the day before the interview with Picard, he had been assigned a sergeant from the Major Crime Unit to assist in the investigation. He denied that this secondment was done because police had concluded that a murder had occurred. Rather he indicated that at some point in time during the course of the investigation into Nayel’s disappearance, he came to the conclusion that Nayel was probably dead.

Position of the parties

[24] Defence argues that the Crown has failed to prove beyond a reasonable doubt that the two statements were voluntary. He states that the record pertaining to both statements is lacking to the point where it is not possible for the court to make any determination of voluntariness. Additionally, Defence contends that Picard was a suspect in the investigation and ought to have been cautioned and given an opportunity to contact counsel before making either statement.

Legal Principles

[25] The concept of voluntariness is defined to address both reliability and fairness concerns, and in particular, the need to treat accused persons fairly by not allowing coercive state tactics. On the other hand, this rule also seeks to balance the protection of an accused’s rights with society’s need to investigate and solve crimes.[^2]

[26] Another animating principle of the confessions rule is the Charter[^3] enshrined right of an accused to remain silent. As noted in R. v. Singh:

Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination.[^4]

[27] In R. v. Oickle, the Supreme Court of Canada outlined what is now the primary test on the issue of voluntariness. This test reflects a change of focus away from the historical emphasis on reliability to the more modern focus on the suspect’s right to freely choose whether to speak to police.[^5] Oickle defined four criteria that the Crown must prove:

1. No promises, threats or inducements;
2. That the accused possessed an operating mind;
3. No oppressive atmosphere; and
4. No other police trickery.

[28] Voluntariness of an accused’s statement to authorities must be proved beyond a reasonable doubt. The determination of voluntariness is contextual, requiring the trier of fact to examine the surrounding circumstances of police exchanges with the accused.

Completeness of the Record

[29] Police are obliged to record the circumstances of interactions leading up to the statement and the absence of a proper record could lead to adverse inferences. While verbatim, electronic recordings of actual statements are preferred, summaries cannot be discounted. Once it is established that the exchange was voluntary, the adequacy of the record goes to weight, not admissibility.

[30] In R. v Moore-McFarlane,[^6] the Ontario Court of Appeal ruled that the police are not obligated to record statements. Assessing the voluntariness of such is contextual but the “Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police.”[^7] For instance if facilities for recording were available to the authorities when speaking with the suspect but are not used, then the circumstances surrounding the statement may become suspect.[^8]

[31] Summaries of what an accused said are acceptable where the overall context shows the substance of police interactions and the trier-of-fact has assessed the officer in question as credible.[^9]

[32] There are numerous factors that the Court can consider in determining whether the accuracy of the record is sufficient for the Court to determine voluntariness. They are:

• Material gaps in voir dire evidence about what happened or what was said during interrogation.[^10]
• Where police have technological facilities available to make recordings but fail to do so.[^11]
• Where police rely on after the fact summaries, instead attempting to make verbatim notes as soon as possible.[^12]
• Police initiated interviews/questioning where the suspect is likely to make inculpatory statements.[^13]
• Where police had subsequent opportunity to reconfirm oral statements via recording.[^14]
• Lack of recording combined with inconsistent police accounts.[^15]
• Where only a rough summary of inculpatory comments are provided but police cannot recall all questions asked and answered.[^16]

[33] In summary, where the Crown can present a sufficient record to establish voluntariness, questions of accuracy go to weight/probative value, and not admissibility.[^17]

Caution

[34] In R v. Singh,[^18] the Supreme Court of Canada said that a caution is to be given where there are reasonable grounds to believe that the person being questioned has committed an offence.

[35] If the police are merely seeking information from people they believe are witnesses or persons of interest, there is no need for a caution.[^19] However, if the accused is viewed as a suspect—in other words implicated or involved in the crime—failure to caution him could be significant.[^20] As noted in R. v. J.R.,

If [an accused or a suspect] has not been apprised of his right to counsel or that his lies could be used against him at trial, perhaps in a way he may not understand, he would not be aware of the full implications of what is at stake in telling those lies to the police. In the interests of trial fairness a suspect or an accused must be apprised of such implications or given the opportunity to be apprised of them by a lawyer before the statement can be said to be truly voluntary.[^21]

[36] The failure to provide a caution to a suspect after the police have received information that “would alert any reasonably competent investigator to the realistic prospect”[^22] the accused had been involved in the crime is a significant consideration on the issue of voluntariness.

[37] The principle of when a suspect should be cautioned is easier to outline than it is to apply. However, as noted in R. v. A.D.[^23]

The trigger for an expectation that the police will give a person being questioned a caution respecting the right to silence must be less than reasonable grounds to believe that the person committed an offence, but must surely be more than speculation, knowledge that other persons suspect that person, or even reliable information that, to use the words of the Major Case Manual, a person’s “background, relationship to the victim or the opportunity to commit the offence may warrant further inquiry.”[^24]

[38] The need to draw the line appropriately stems from the fact that the court must balance a suspect’s right to silence with the state’s need to properly investigate crimes. Consequently, the court must not be overly expansive in how it draws that line. To do so is to “overemphasize an individual’s right to silence at the cost of stifling legitimate police investigation.”[^25]

Analysis

[39] As noted earlier, the essence of the issue with respect to the adequacy of the record is whether the court has sufficient information to be able to assess voluntariness.

[40] With respect to the June 19, 2012, although I do not doubt the sincerity of Cst. Vanderwater, the lack of context for the statement made by Picard, the failure to separate the first statement from the second statement, the lack of notes regarding the questions asked, and Cst. Vanderwater’s inability to advise the court with any certainty what information she received during the first conversation and what information she received during the second conversation, make it impossible for the court to assess voluntariness.

[41] It is not enough that Cst. Vanderwater advised the court that she made no promises, threats or inducements. Nor is it enough that it is not disputed that Picard had an operating mind and that there was no oppressive atmosphere or police trickery. What matters is whether there is sufficient contextual information to permit the court to assess the accuracy of these assertions. In the circumstances of this case, the record is so inadequate that the necessary assessment cannot be made. Consequently, I find that the Crown has not proven the voluntariness of this statement beyond a reasonable doubt.

[42] The June 26 statement, however, is a different matter. This statement was video-recorded. There was limited interaction between Picard and Det. Niemi prior to Picard’s arrival at the station. There was a telephone conversation in which the text messages between Picard and Nayel were discussed and Det. Niemi asked Picard to come into the station. Although there are no notes of that conversation, I accept Det. Niemi’s evidence that Picard came into the station on a date and at a time of his own choosing. Det. Niemi met Picard in the lobby and took him immediately to the interview. Det. Niemi testified that he had no conversation of consequence with Picard during that short journey. I accept his testimony. Furthermore, defence conceded there was no other communication of consequence with any police officer during the approximately ten minutes Picard waited in the lobby for Det. Niemi to arrive.

[43] The video statement was conducted in a polite and conversational manner. It is clear that Picard was comfortable talking to Det. Niemi. Det. Niemi testified that at the end of the statement he was convinced that Picard had no involvement in Nayel’s disappearance. This view is supported by the fact that although Det. Niemi got Picard to sign a release permitting police to seize his cellphone, Det. Niemi did not do so.

[44] Defence argued that Picard ought to have been given a caution prior to making his statement. The only caution that Picard received was a caution that his statement could be used to lay criminal charges and that he could be called to testify as a witness. He was also asked to swear to tell the truth and cautioned regarding the consequences of lying under oath.

[45] As noted earlier, a police caution is only required if the person making the statement is considered a suspect or ought to have been considered a suspect. Det. Niemi testified that he did not consider Picard to be a suspect at the time of this statement. However, the analysis does not end there. The court must determine whether the police were in possession of information that “would alert any reasonably competent investigator to the realistic prospect”[^26] that the accused was involved in the crime.

[46] In this case, the police knew the following at the time of the June 26 interview:

• Picard was one of the last people to speak to Nayel;
• Police had received information that Nayel was a small-time marijuana dealer and it appeared that at the time of his disappearance, Nayel had been organizing a major drug deal;
• Nayel’s father had given Det. Niemi some paper with notes in Nayel’s handwriting. On one piece of paper was Picard’s name and cellphone number; and
• Police were treating Nayel’s disappearance as suspicious.

[47] In my view, this information would not have led a reasonably competent investigator to suspect that Picard was involved in Nayel’s disappearance. Picard’s explanation for his contact with Nayel was corroborated by text messages viewed by Det. Niemi. Det. Niemi believed Picard’s explanation and in the circumstances it was reasonable for him to do so. Picard was not known to the police at that time to be a drug dealer. The paper found by Nayel’s father with Picard’s contact information was meaningless without more. Picard was cooperative with police. Finally, although at that time police were treating Nayel’s disappearance as suspicious, they had no evidence that any crime had been committed and no information to link Picard to Nayel’s disappearance. Therefore, I find that at the time of the June 26 statement, Picard was only a witness and no police caution was required.

[48] Consequently, the Crown has proven, beyond a reasonable doubt, that the statement of June 26, 2012 is voluntary and it is admissible.

Justice Julianne Parfett

Released: October 20, 2016

CITATION: R v. Picard, 2016 ONSC 6424

COURT FILE NO.: 12-M7874

DATE: 2016/10/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Adam Picard

Accused

REASONS FOR Decision

Parfett J.

Released: October 20, 2016

[^1]: Exhibit #5 [^2]: R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449. [^3]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [^4]: R. v. Singh, 2007 SCC 48 at para. 21, [2007] 3 S.C.R. 405 [Singh]. [^5]: 2000 SCC 38 at para. 30, [2000] 2 S.C.R. 3 [Oickle]. [^6]: 2001 6363 (Ont. C.A.) at para. 64, 56 O.R. (3d) 737 [Moore-McFarlane]. [^7]: Ibid, at para. 65; R. v. Rajab, 2004 93325 (ON CJ), 2004 Carswell-Ont 6394, (WL CAN) (Ont. C.J.) at paras. 23 and 29. [^8]: Moore-McFarlane, supra note 6 at para. 65. [^9]: R. v. Menezes, 2001 28426 at paras. 26 and 30 (Ont. S.C.) 48 CR (5th) 163 [Menezes]. [^10]: David Paciocco & Lee Stuesser, The Law of Evidence, 5th ed (Toronto: Irwin Law, 2010). [^11]: Moore-McFarlane, supra note 6 at para. 65.; R. v. Shire, 2014 ONSC 3519 at para. 32. [^12]: R. v. Hoare, (May 8, 2015), Ottawa, 2311/14 (S.C.). [^13]: R. v. Brown, 2014 ONSC 7096 at para. 64. [^14]: R. v. Larsen, 2012 MBPC 27 at para. 35, 281 Man R (2d) 209; R. v. Bailey, [2006] O.J. No. 5630 (Ont. S.C.) at para. 35. [^15]: Bailey, Ibid at para. 38. [^16]: R. v. Belanger, 1978 2312 (ON SC), 1978 Carswell-Ont 1350 (WL CAN) (Ont. H.C.) at para. 45, 40 C.C.C. (2d) 335. [^17]: R. v. Lapointe , 1983 3558 (ON CA), 1983 Carswell-Ont 1212 (WL CAN) (Ont. C.A.) at para. 42, 9 C.C.C. (3d) 366; R. v. Laidley, 2001 28421 (ON SC) at para. 42; R. v. Khairi, 2012 ONSC 5549 at para. 83; Menzes, supra note 10 at para. 27. [^18]: Singh, supra note 4 at para. 32. [^19]: R. v. Pomeroy, 2008 ONCA 521 at paras. 32,36-7, 91 OR (3d) 261. [^20]: R. v. J.R., 2003 Carswell-Ont 690, (WL CAN) (Ont. S.C.) at para. 18 [^21]: Ibid, at para. 21. [^22]: R. v. Worrall, 2002 Carswell-Ont 517, (WL CAN) (Ont. S.C.) at para. 104 [Worrall]. [^23]: 2003 Carswell-Ont 4275 (WL CAN) (Ont. S.C.) [A.D.]. [^24]: Ibid, at para. 75. [^25]: R. v. Chui, 2015 ONSC 552 at para. 39, citing R. v. Carroll, 2009 Carswell-Ont (WL CAN) (Ont. S.C.) 5804 at para. 723, 71 C.R. (6th) 169. [^26]: Worrall, supra note 22 at para. 104.```