CITATION: R. v. F.O., 2016 ONSC 683
COURT FILE NO.: YC 30000005-14
DATE: 20160127
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
[Note: This proceeding is governed by publication restrictions under section 110 of the Youth Criminal Justice Act.]
B E T W E E N:
HER MAJESTY THE QUEEN
T. Pittman & S. Heeney, for the applicant
Applicant
- and -
F.O.
(a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
G. Zoppi & C. Pearce, for the respondent
Respondent
HEARD: January 12, 13, 14, 18, 19 & 20, 2016
[Note: These reasons are governed by publication restrictions under s. 648 of the Criminal Code.]
Nordheimer J.:
[1] Rulings are sought on the admissibility at trial of certain statements made by the accused when he was interviewed by the police. There are three statements that are in issue. The first statement was taken at a hospital in notebook form. The second statement was taken on video at 43 Division approximately two days after the first. The third statement was taken on video at 42 Division approximately a month and a half after the second.
[2] At the outset I should say that, given that the accused is a young person, I shall refer to him in these reasons simply as the respondent.
Background
[3] The respondent faces trial on two counts of second degree murder, one count of attempted murder, one count of reckless discharge of a firearm and twenty-two counts of aggravated assault. The charges arise out of the events of July 16, 2012. On that day, a community barbeque/block party was being held on Danzig Street in the Scarborough area of Toronto. At approximately 10:40 p.m., a gunfight broke out. Numerous shots were fired. Two people were killed and more than twenty others were wounded. It is alleged that the respondent instigated this gunfight.
[4] It will not be difficult to understand, given the nature of the events, that chaos reigned over the scene immediately after the gunfight erupted. It is estimated that more than two hundred people were at the party at the time. They scattered in all directions. Emergency responders were faced with numerous people running away from the scene, including some who had been wounded by the gunfire. Others had collapsed at the scene.
[5] All available police officers were dispatched to the scene but without really knowing what had happened. For example, when P.C. Middleton, who took the hospital statement from the respondent, initially arrived at the scene, there was no command officer at the location so she simply ran to find anyone that needed help. When she returned to the area of Danzig and Morningside, which had become the centre of the emergency response, she was directed by a sergeant to accompany one of the shooting victims, who was already in an ambulance being attended by paramedics. As it turned out, this victim was the respondent.
[6] The ambulance with the respondent and P.C. Middleton went to Scarborough Centenary Hospital. On the way there, the ambulance was flagged down by a female, who was also a shooting victim. Her injuries were not as serious so she was told to wait for another ambulance to attend to her and the ambulance, with the respondent, continued on to the hospital. The scene at the hospital was similarly chaotic. Five shooting victims were already in the emergency department. P.C. Middleton, and the only other police officer who was then at the hospital, attempted to establish some order to the situation.
[7] After the situation at the hospital settled somewhat, P.C. Middleton spoke with the respondent. She asked him what had happened. The respondent provided some information regarding his attendance at the party, the circumstances by which he had come to be shot, and his attempt to run from the scene. This is the first statement that is in issue.
[8] Because two of the persons, who had been shot at the party, had succumbed to their injuries, the investigation of the gunfight was being handled by detectives from the homicide squad. As part of their investigation, they sought to interview each of the persons who had been a victim of the shootings. To that end, Det. Sgt. Trimble, one of the lead detectives, detailed two officers to go to the respondent’s home (who was by then out of the hospital) and ask if he would attend at 43 Division for an interview.[^1]
[9] The respondent attended at 43 Division with his mother and other family members. He was met there by Det. Schertzer who took him to an interview room along with his mother. The mother was asked if she wished to stay for the interview but she declined. The interview then proceeded with the respondent. It was videotaped and lasted for approximately forty-five minutes. As Det. Schertzer explained, the purpose of this interview, as with all of the other interviews of victims/witnesses, was to obtain as much information as possible about what happened leading up to, during, and after the gunfight. This is the second statement that is in issue.
[10] Whether by coincidence, or for some other reason, approximately a month and a half after the Danzig gunfight, the respondent was again shot. On September 2, 2012, while riding a bike near his home in the Chester Le area of Scarborough, a lone male approached the respondent and fired one shot at him. The bullet hit the respondent in the leg. The attacker’s attempt to fire further shots failed, apparently because the gun jammed. The respondent managed to run back to his home where his mother drove him to the hospital.
[11] Detectives from the major crime unit at 42 Division began an investigation into the shooting.[^2] The police attended at the hospital. Officers were given instructions by the detectives to ensure that the respondent was brought to 42 Division after his release so that he could be interviewed. Officers did bring the respondent to 42 Division after his release. He was interviewed on video by the detectives at 42 Division who were investigating the shooting. The stated purpose of this interview was to determine what had happened surrounding the shooting and, in particular, if the respondent could identify the person who shot him. This is the third statement that is in issue.
[12] The third statement was taken by Det. Cst. Kissi and Det. Cst. Cruz. They questioned the respondent about what had happened regarding the shooting. After that was explored, Det. Cst. Kissi expressed some skepticism to the respondent as to whether he was telling the truth. The officer said that he had difficulty accepting that it was just coincidence that the respondent had been shot twice in a short period of time. To a very limited degree, the officer questioned the respondent about the Danzig shooting. The respondent maintained that he did not know who had shot him at Danzig and he did not know who had shot him near his home.
Analysis
[13] With that basic recitation of the background facts, I turn to my analysis of whether any of these three statements are admissible in evidence at this trial. I will mention some further relevant facts in the course of my analysis. The two issues or hurdles that must be overcome to render the statements admissible are, first, as with any statement by any accused person, whether the statement was made voluntarily and then, second, because the respondent is a young person, whether the requirements of s. 146 of the Youth Criminal Justice Act, S.C. 2002, c. 1 apply to any of these statements and, if so, whether those requirements were met. Both voluntariness, and compliance with the requirements of s. 146, if applicable, must be made out to the standard of proof of beyond a reasonable doubt: R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739.
I: Voluntariness
[14] Turning to the first consideration, the decision of the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 considers in detail the issue of voluntariness. In that case, the Supreme Court of Canada held that a statement or confession can be found to be involuntary if it is obtained as a consequence of (a) threats or promises; (b) oppression; (c) the absence of an operating mind or (d) other police trickery. I will deal with each of the statements in turn regarding the voluntariness issue. I will at the outset, however, say that there is no issue of police trickery regarding any of these three statements. Rather, depending on the statement involved, the issues that are in play are threats or promises and/or the lack of an operating mind and/or oppression.
[15] I am also aware that the issues surrounding threats or promises, oppression and the absence of an operating mind are to be considered together in reaching the ultimate conclusion on voluntariness: R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500 at para. 12. For the purpose of clarity in the analysis, however, I think it is easier to address each issue separately.
Statement #1
[16] In terms of this statement, the defence submits that the respondent did not have an operating mind. The defence points to the fact that the respondent was in hospital suffering from a bullet wound, that he had suffered some loss of blood, and that he may have been receiving medication. The defence also says that the statement taken by the officer at the hospital was not audiotaped or videotaped, when it could have been through the use of the officer’s cellular telephone. The reliability of the statement is therefore suspect.
[17] The difficulty with the defence submission on this statement is that there is no evidence from the respondent that he was labouring under such stresses, relating to the injury that he had suffered, that he could not make a conscious decision whether or not to speak. There is also no other medical evidence from which I could conclude that the respondent’s mind was so impacted by his injury that his ability to make conscious decisions was impaired. There is no evidence that the respondent did not know he was speaking to a police officer (who was in full uniform) or that he was confused as to the nature of the questions or the officer’s reasons for asking them. I note in that latter regard that the officer spoke to the respondent twice – once in the ambulance and the second time in the hospital when the statement was taken. The officer said that while the respondent was agitated when she spoke to him in the ambulance, he was noticeably calmer when she spoke to him in the hospital.
[18] In terms of there being no audio or video recording of the statement, I am aware of the authorities that say that a statement should be so recorded, if the ability to do so is available. I would make two comments in relation to that general principle. One is that non-recorded statements are not inherently suspect: Oickle at para. 46. The other is that this general principle normally operates only when a statement is being taken from a person who is in custody: R. v. Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 56 O.R. (3d) 737 (C.A.) at para. 65. The principle has not, as far as I know, been applied to require a police officer “on the street” to use his or her cellular telephone for that purpose. It may be, given the reality that most police officers will have a “smartphone” with them these days, that they should be so employed, but I leave whether that ought to be a requirement (or even a strong suggestion) to be decided on another day.
[19] The fact is that the officer, in this instance, was in the middle of a chaotic situation at the hospital where she was trying to deal with more than one injured person arising from an unprecedented situation. The officer was attempting to gather what information she could that might be of assistance to the ultimate investigation of what had triggered this horrendous event. I do not fault her for gathering the information from the respondent in the manner that she did. Any issues that arise from the manner in which the statement was taken from the respondent, in this particular situation, more properly go to the issue of the accuracy of the statement, and thus to the weight that should be given to it, and not whether it is admissible.
[20] I am satisfied that statement #1 was made voluntarily by the respondent and is admissible on that basis.
Statement #2
[21] In terms of the second statement, the defence says that it was obtained as a result of threats or inducements and also that it was taken from the respondent when he was considered by the police to be a suspect. Regarding the latter assertion, the defence says that the statement is rendered inadmissible because of the failure of the police to caution the respondent in accordance with s. 146 of the YCJA. I will deal with this latter assertion when I come to deal with the applicability of s. 146 to any of these statements.
[22] In terms of voluntariness, the allegation of threats or inducements arises from the fact that the respondent was told by the uniformed police officers, who attended at his house and made the request that he come to 43 Division to be interviewed, that the police had information that his life might be in danger. Specifically, the police had received information that males from Danzig might be looking for him to retaliate for the shooting at Danzig.
[23] This information was communicated to the respondent by the officers at the specific direction of Det. Sgt. Trimble. Det. Sgt. Trimble had received information from a Staff Sergeant at 43 Division that “word on the street” was that there were males from Danzig who were looking for the respondent to retaliate for the Danzig shooting. There were no specific details about the source or reliability of this information. Det. Sgt. Trimble said that he told the officers, who were tasked with going to see the respondent, to let him know of this information. Det. Sgt. Trimble said that he did so because of the potential for liability on the police if such information was known to them but not imparted to the person whose safety might be at stake. Of importance is that Det. Sgt. Trimble said that he told the officers to pass this information on to the respondent and to ask him whether he would attend for an interview. In other words, Det. Sgt. Trimble says that he told the officers to pass along this information since they were going to see the respondent in any event to ask him to come in for an interview. Det. Sgt. Trimble did not tell the officers to pass along this information to cause or persuade the respondent to come in for an interview.
[24] Rather, as Det. Sgt. Trimble made clear, and as was confirmed by Det. Schertzer (who conducted the actual interview), it was the intention of the investigators to interview all of the victims of the Danzig shooting. Indeed, Det. Sgt. Trimble specifically tasked Det. Schertzer with ensuring that all of the victims were interviewed.
[25] When the officers spoke to the respondent, he said that he would be willing to attend for an interview but that he wanted to wait until later in the day when his mother would be home and could go with him. The officers agreed to wait. Indeed, the officers went back to their Division, changed into plain clothes and got an unmarked police vehicle before returning to pick up the respondent. One of the reasons that the officers got an unmarked vehicle was that they thought it would be easier for the respondent to get into such a vehicle (given the injury to his leg) than it would be for him to get into a normal police scout car.
[26] The respondent attended at 43 Division with his mother and other family members as I have already set out above. Towards the beginning of the interview, and again later in it, the respondent raised the issue about what the officers had told him about a potential threat to his safety. Det. Schertzer said that she knew nothing about that and was not going to get into it with the respondent. As Det. Schertzer said in the interview “All I wanna know is how you got your injury”. The defence points to the fact that, later in the interview, the respondent raised this issue again and said that the reason he came to the interview was because he wanted to know “who’s looking for me”. Det. Schertzer said that she knew nothing about the matter but did ask the respondent if he thought he was a target. The respondent said No but that what the officers had told him “kinda scared me”. Det. Schertzer responded that the respondent was getting scared for nothing and the respondent then laughed.
[27] I cannot find anything in the evidence that would support the suggestion that the respondent gave the interview that he did to the police because he felt threatened by them. I also cannot find anything in the evidence that would support the suggestion that the communication of this information, about a possible threat to his safety, was used by the police as a method of inducing the respondent to give a statement. I accept Det. Sgt. Trimble’s evidence as to why he told the officers to pass this information along to the respondent I reject the suggestion that it was done as some sort of subterfuge to cause the respondent to agree to be interviewed. I would also note that there is no apparent quid pro quo emanating from the police that might cause the respondent to provide a confession in order to obtain a benefit being offered in relation to this alleged threat to his safety. Indeed, nothing amounting to a confession was offered in the interview.
[28] It is clear that the respondent knew that he did not have to agree to an interview. Both he and his mother said that they understood that. It is equally clear that the respondent voluntarily agreed to speak with the officers. There is nothing in the interview itself that would sustain any suggestion that the respondent was participating in it other than in a completely voluntary way.
[29] I am satisfied that the second statement was voluntary and is admissible on that basis.
Statement #3
[30] In terms of the third statement, the issue is the operating mind requirement although there is some suggestion that the statement was taken in circumstances that could also arguably be characterized as an atmosphere of oppression. There is also the s. 146 issue but, again, I will deal with that later.
[31] The respondent was taken directly from the hospital to 42 Division to be interviewed. He arrived at the Division around midnight and was interviewed commencing at 2:46 a.m. The respondent is still dressed in a hospital gown and he has what appears to be a hospital blanket wrapped around him. The defence says that the respondent was not given any option about whether to attend at 42 Division and that the circumstances surrounding the interview are such that they should raise a serious question whether the respondent had an operating mind. Again, there is the fact that the respondent had been shot, he had been treated for his wound in hospital and he had received medication as part of that treatment.
[32] I accept that those circumstances would immediately cause one to be wary of any statement taken. Once again, however, there is no evidence from the respondent that he was suffering from any impediments that would have impacted on his ability to make conscious decisions about whether or not to speak to the officers. The respondent does not say that his mind was clouded by medication or by other elements relating to his injury. The respondent does not appear, on the video, to be in such an impaired condition. I appreciate that it does not appear that the respondent was given the option of going home rather than going to the Division. Equally, the respondent never asked to go home. Indeed, at no point during the course of the interview does the respondent raise any complaint about being questioned by the officers or ask that he be able to leave. The respondent is clearly in some discomfort arising from his injury but, at the same time, the officers seem particularly attentive to that fact. Further, the respondent never asks that the officers wait until a later time to ask him questions. He does not say that he is in too much pain, or is too tired, or is otherwise reluctant to speak with the officers.
[33] While one can debate whether it would have been more appropriate, as a matter of common courtesy, for the police to have waited until a little later to conduct this interview, the failure to extend that courtesy (if it be so), does not constitute oppression. It is not a situation of the type that would raise the concern that the subject would provide a “stress-compliant confession”: Oickle at para. 58.
[34] I am satisfied that the third statement was voluntary and is admissible on that basis.
II: Witness or Suspect
[35] I now turn to the second requirement, that is, whether s. 146 of the YCJA was applicable to any of these statements. If it was, then there is no dispute that the requirements of that section were not complied with regarding any of these three statements. I begin by noting that I do not take the defence as suggesting that s. 146 applies to the first statement. At the early stage at which that statement was taken, the police had no real idea what had gone on that led to this outburst of gunfire as to even think of the respondent as a suspect.
[36] Section 146 is applicable to statements taken from a young person in two specific situations, that are set out in s. 146(2). That subsection reads:
No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless …
[37] As the subsection makes clear, the requirements of s. 146 only apply where the young person is under arrest or detention or where the investigating officer has reasonable grounds to believe that the young person has committed an offence.
[38] It will be clear that the respondent was not under arrest when any of these three statements were taken. It is also clear, in my view, that the respondent was not detained in any of these three situations. In the first situation, the respondent was in the hospital awaiting treatment. While it is clear that he was not going anywhere, that reality was the direct result of his injuries and his need for treatment and not the result of anything done by the police. He was not therefore detained. In the second situation, the respondent voluntarily attended at 43 Division and spoke with the officers. Admittedly, he was in an interview room that was in the secure section of the Division but the door to the interview room was not locked and the officers were clear that he was free to leave, if he wished to. The third situation mirrors the second. While there is no direct evidence that the officers told the respondent that he could leave if he wanted to, it is clear that at no point during the course of the third statement did the respondent ever ask to leave or otherwise indicate that he did not wish to continue speaking with the officers. The respondent was not detained in either case.
[39] The essential complaint by the defence with respect to both the second and third statements is that the officers, who conducted the interviews, had reasonable grounds to believe that the respondent had committed an offence, namely the Danzig shooting, and were specifically questioning him as a suspect in relation to that event. In terms of the second statement, the defence says that the investigators had information that lead them to believe that the respondent was involved in the shooting and undertook their questioning of the respondent to further that belief. In terms of the third statement, the defence contends that it was really designed to question the respondent about the Danzig shooting and not the shooting that had caused him to be wounded the day before. In essence, the second shooting of the respondent provided a fortuitous opportunity to question the respondent as a suspect in the Danzig shooting for a second time.
[40] In terms of statement #2, the suggestion that the officers were interviewing the respondent as a suspect is directly rejected by both officers, especially by Det. Schertzer who had the lead role. She was clear that her limited role in the Danzig investigation was to interview all of the victims of the shooting and that is the only role that she viewed the respondent as having at the time that she interviewed him.
[41] On that point, the day before the interview, the police had received a CrimeStoppers tip about the Danzig shooting to the effect that a male known as “Chaotic” had been shot in the leg; that this male was from Chester Le; that the male had been involved in a pushing match with the “victim”; and that this male threw the gun away after the shooting. The defence points to the fact that the respondent was known to the police to use the street name “Chaotic”, that he had been shot in the leg; that the respondent is from Chester Le and that a gun was found at the scene. It is known that more than one gun was used in the course of this shooting. The defence also points to the fact that as a result of this CrimeStoppers tip, the investigators had pulled information on the respondent, including the proper spelling of his name and his birth date. As well, the investigators had noted the need to interview the respondent in connection with this tip.
[42] The defence asserts that this information caused the investigators to have a reasonable belief that the respondent was involved as a participant in the Danzig shooting and, consequently, when Det. Schertzer interviewed the respondent, he was already viewed by the investigators as a suspect. Consequently, the respondent ought to have been cautioned in accordance with the requirements of s. 146.
[43] The problem with that assertion is that it is contradicted by all of the officers who were involved in the lead-up to, and conduct of, the interview of the respondent. Det. Schertzer says that her role in the Danzig investigation was to interview victims, and only victims. She did not interview any suspects. This is confirmed by Det. Sgt. Trimble, who tasked Det. Schertzer with the role to co-ordinate the interviewing of all victims.
[44] There is no doubt that Det. Sgt. Trimble and Det. Schertzer, along with the other officers who were involved in the Danzig investigation, were aware of the contents of the CrimeStoppers tip. However, Det. Sgt. Trimble said that a CrimeStoppers tip was not evidence and was not something that he would rely on to consider someone a suspect. He did agree that the tip raised questions that the investigators would want to follow-up, but he was adamant that the respondent did not become a suspect in the Danzig case until October 2012, when an intercepted communication provided strong evidence of his involvement. Det. Sgt. Trimble said that there was no way to connect the gun found at the scene with the gun referenced in the tip. He also pointed to the fact that the tipster had said that the male had waited a day before going to the hospital for treatment whereas the respondent was taken to the hospital immediately after the shooting.
[45] As well, while Det. Schertzer acknowledged that she was present at the briefing where the CrimeStoppers tip was mentioned, she said that it did not register with her. I am not surprised by that statement, given the specialized role that Det. Schertzer had in the investigation. I am also cognizant of the fact that, at the time of that briefing, Det. Schertzer did not know that she would wind up interviewing the respondent the next day.
[46] The defence attempts to elevate the importance of this tip by pointing to two things from the briefing note. One is that two of the lead investigators were identified as going to interview the respondent at the hospital. This did not happen, however. Det. Schertzer conducted the interview of the respondent. I do not have any evidence as to why that apparent change occurred and I take nothing from it, other than to note the fact that Det. Schertzer interviewing the respondent is consistent with the fact that the respondent was a victim of the Danzig shooting. The other matter to which the defence points is that asterisks were placed before and after the notation, in the briefing note, regarding the need to interview the respondent. I do not have any basis to attribute any special significance to the presence of asterisks or to attribute a meaning to them. On that latter point, I do note, from a review of the briefing note, that it appears that all action items were tagged with asterisks.
[47] The defence also questions the standard that should be applied to a finding that reasonable grounds to believe existed under s. 146(2). On this point, in R. v. P.J., [2015] O.J. No. 5335 (S.C.J.), Code J. held, at para. 13:
The leading authorities are all to the effect that this particular statutory standard is the same as the s. 495 Criminal Code standard for arrest and it is not the same as the lower common law standard for an investigative detention. In other words, it means “reasonable and probable grounds” or likely guilt and not “reasonable suspicion” or possible guilt.
[48] The defence challenges this conclusion and asserts that the lower standard is the applicable one. I do not have any reason to question the conclusion reached in P.J. It seems to me to be consistent with the conclusion reached by the Court of Appeal in R. v. M.T. (2014), 2014 ONCA 153, 306 C.C.C. (3d) 171 at paras. 18-20 (Ont. C.A.) and with the other authorities cited by Code J.
[49] In any event, however one wishes to delineate the applicable standard, I am satisfied on the evidence before me that the investigators did not have reasonable grounds to believe that the respondent had committed an offence when he provided the second statement. Again, it was very early in the investigation and no reason for the gunfight had been identified. The investigators did not then have any reliable information that would have pointed to the respondent as having been involved in the gunfight, other than as a victim. The investigators did not, consequently, have to comply with the requirements of s. 146 before taking that statement.
[50] The third statement raises, to a large degree, the same arguments as did the second statement. I should mention some further background to that statement. Det. Cst. Kissi of 42 Division was investigating this second shooting of the respondent. Det. Cst. Kissi knew Det. Sgt. Trimble. Indeed, at an earlier time, Det. Cst. Kissi had worked for Det. Sgt. Trimble when they were both at 42 Division. Det. Cst. Kissi knew that the respondent had been shot in the Danzig gunfight. Det. Cst. Kissi also knew that Det. Sgt. Trimble was one of the lead investigators for the Danzig shooting. Det. Cst. Kissi called Det. Sgt. Trimble to advise him that the respondent had been shot again. Det. Cst. Kissi said that he did so for two reasons. One is that any shooting could become a homicide and the other was that he thought that Det. Sgt. Trimble should know that one of the victims from Danzig had again been shot.
[51] Det. Cst. Kissi said that he did not discuss the Danzig investigation with Det. Sgt. Trimble. He said that Det. Sgt. Trimble only asked him to let him know what might come out of his investigation. Det. Sgt. Trimble confirms that he did not discuss the Danzig investigation with Det. Cst. Kissi. Specifically, both officers denied the suggestion that Det. Sgt. Trimble asked Det. Cst. Kissi to question the respondent about the Danzig shooting. Det. Cst. Kissi did, in fact, ask the respondent some limited questions about Danzig but he did so because he said that he was suspicious about the fact that the respondent had been shot twice in the period of less than two months and thought that the respondent was not being honest with him about whether the respondent knew who had shot him and why.
[52] In fairness, Det. Cst. Kissi began his questions of the respondent about Danzig by telling the respondent that he did not think that the respondent was being completely honest. The defence asserts that Det. Cst. Kissi engaged in a “cross-examination” of the respondent. I do not agree. Det. Cst. Kissi’s questions were not aggressive nor were they combative. They were mildly challenging for the very reason Det. Cst. Kissi gave. He had reason to doubt that the respondent was being truthful with them. However, there is nothing in the manner of Det. Cst. Kissi’s questioning of the respondent that would sustain the suggestion that this was a disguised effort to explore the respondent’s role, if any, in the Danzig shooting.
[53] Again, therefore, there was no obligation on the officers to caution the respondent in accordance with the requirements of s. 146 of the YCJA.
[54] Before concluding, I should add that the respondent’s submissions, on the s. 146 issue regarding both the second and the third statements, essentially asked me to disbelieve the evidence of at least five different police officers, including two senior investigators with the homicide squad and one officer who is no longer with the Toronto Police Service.[^3] In order to make such adverse credibility findings, I would need to be able to enunciate, with some clarity, my reasons for so doing: see, for example, R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 at para. 19. The fact is that I do not have any such reasons. Each of the officers gave their evidence in a straightforward manner. They each had reasonable explanations for the actions that they took and the opinions that they held regarding the progress of the investigation and who, if anyone, was implicated in it. I am aware that their evidence was not without the occasional contradiction, but it is the rare witness whose evidence is unblemished. I believe that each of the officers gave honest evidence to the best of their abilities.
[55] In the end result, I conclude that each of the statements was voluntary and that none of the statements are rendered inadmissible as a consequence of the absence of any caution under s. 146. In reaching those conclusions, I am not ruling that these statements are otherwise admissible, at least in their entirety. I appreciate that these statements, particularly the third statement, may still raise issues of relevance and prejudice that will need to be canvassed. The prosecution advised that it only intended to introduce the first statement. The second and third statements are only intended to be used if the respondent gives evidence. Any such issues may,
therefore, never arise. If they do, then any issues as to whether the statements need to be edited, or their use otherwise restricted, can be addressed at that time.
NORDHEIMER J.
Released: January 27, 2016
Court File No.: YC 30000005-14
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
F.O.
(a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
Respondent
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: The Danzig area falls within the boundaries of 43 Division and that is where the homicide squad investigators had set up their centre for the investigation. [^2]: The respondent’s home falls within the boundaries of 42 Division. [^3]: Det. Cst. Kissi subsequently resigned from the Toronto Police Service to pursue a different career.