Citation: R. v. Upward, 2016 ONSC 752

Court File No.: CR-12-00003148-00 Date: 2016-01-29

Ontario Superior Court of Justice

Between:

Her Majesty the Queen

– and –

William Upward, Defendant

Counsel: A. Barkin and S. Kumaresan, for the Crown N. Liva and S. Weinstein, for the Defendant

Heard: November 13, 2015

Ruling on Application

Edwards J.:

Overview

[1] The Crown seeks an order admitting into evidence a video and audio statement of the accused. The defence resists the Crown’s application and, thus, effectively seeks to exclude from evidence a statement categorized as a confession given to the police by William Upward (Upward) subsequent to his arrest. It is argued for the defence that the statement was given in circumstances where Upward’s will was overborne, as a result of the alleged oppressive conditions and the deception and lies that underlie the taking of the statement. The Crown argues there was no oppression and no improper inducement offered to Upward, and that looking at the totality of the circumstances surrounding the taking of the statement that it was voluntary.

The Facts

[2] What started out as a gathering of family, friends and neighbours on September 3, 2011, ended up in a fight over fireworks that led to the untimely and tragic death of James Connors (Connors). At the time of his death Connors was 56.

[3] By way of background, Upward was 49 years of age at the time of his arrest. He was a resident of Red Lake, Ontario, where he lived with his wife Caroline and one of his daughters. His other daughter was in Ottawa attending university. Upward was a miner by profession. He has no criminal record. There is nothing in the evidence to suggest that Upward and Connors knew each other, or had any prior contact before the evening of September 3, 2011.

[4] Bruce Upward (Bruce), the brother of the accused, was a neighbour of Connors. Bruce was apparently in the habit of lighting off fireworks during the summer long weekends, which caused some concern for Connors given the debris that would land on his property.

[5] The inevitable happened and a confrontation took place between Bruce and Connors. There was some pushing and shoving between these two that then resulted in the accused, Upward, allegedly intervening with a punch of some kind to Connors that resulted in Connors falling to the ground. At the time of the incident, it was apparent that Connors had suffered a significant head injury needing hospital treatment. The police were called and Upward was arrested.

[6] Subsequent to the events of September 3, 2011, Connors remained in hospital. He succumbed to his injuries on January 14, 2012. The anticipated forensic evidence at trial will apparently establish that the head injury suffered by Connors was a significant contributing factor to his death.

[7] The police arrived at the Connors’ residence located in the Keswick area at around 10:17 p.m. When they arrived, the entire neighbourhood was in darkness due to a power outage. Upward was detained at 10:38 p.m. He was arrested on a charge of assault at 11:01 p.m. by a uniform officer of the York Regional Police, Police Constable Runge (Runge). Shortly after the arrest Runge gave Upward the standard police caution, which he read from his notebook, informing Upward of his right to retain and instruct counsel.

[8] The evidence on this voir dire included the transcripts from the preliminary inquiry. From that evidence it is apparent that Upward understood his right to counsel, as he indicated to Runge “I may have to”. At that time, i.e. shortly after 11:00 p.m., Upward did not make a request to speak to any particular lawyer. Shortly after he was given his rights to counsel, Runge gave Upward the standard police secondary caution that he was not obliged to say anything unless he wished to do so. Upward indicated in response that he understood.

[9] Runge’s evidence from the preliminary inquiry establishes that throughout the period of time when Upward was in his custody he was cooperative and calm. Runge transported Upward to 3 District York Regional Police and arrived at 11:18 p.m. He was not paraded before the booking sergeant until 11:32 p.m., as he had to wait while his brother Bruce who had also been arrested was being dealt with. Between 11:18 p.m. and 11:32 p.m., Runge and Upward are seen on a video outside the police cruiser but within the sally port at 3 District. There is no audio on the video, but it seems quite apparent that throughout his time in the sally port Upward was not agitated nor in any distress. He displays the same sense of calmness testified to by Runge at the preliminary inquiry.

[10] The evidence of Staff Sergeant Stevens (Stevens), at the preliminary inquiry, establishes that Stevens was satisfied from information given to him by Runge that Upward had been given the standard police caution and rights to counsel and that Upward had understood. Stevens’ evidence confirms that questions were asked whether Upward was on medication, and that Upward did not indicate he required any medication. Upward was searched and nothing of note occurred during the search. It was conceded by defence counsel, in response to a question that I posed during the voir dire, that nothing of significance occurred during Upward’s booking.

[11] Runge contacted duty counsel at 1:30 a.m. Upward spoke with duty counsel in a private room between 1:45 a.m. and 1:51 a.m. After he spoke with duty counsel he was returned to his cell. His cell was a standard police cell which was equipped with a toilet, drinking water, and a steel or concrete bench that would allow someone to lie on it like a bed. Upward was not provided with a blanket. The light in the cell is always on. The temperature in the cell is set by a civilian and cannot be adjusted by police officers at 3 District. When he was lodged in his cell Upward was wearing the same clothing as he was wearing when he came into 3 District, consisting of a short sleeve shirt and pants.

[12] The investigating police officer with carriage of the investigation at the scene, and who subsequently interviewed Upward, was Detective Constable Burd (Burd). Burd has been employed by the York Regional Police since October 1999, and has five years of experience in the Criminal Investigations Bureau. He has received training in how to interview an accused. Burd did not return to 3 District until approximately 2:00 a.m. as he was engaged in the investigation at the scene, including the interviewing of various witnesses. Burd decided on his return to the police station he would not conduct an interview of Upward until he knew more of Connors’ medical status. He also wanted to wait for his superior officer, who had more experience in monitoring the taking of a statement, and who might be able to give him some assistance. Burd was also the only Detective on duty the night of September 3 and 4, 2011.

[13] After he arrived at 3 District, Burd received information from the hospital that Connors’ medical condition had deteriorated. Burd decided to change the charge that Upward was facing from assault to aggravated assault. Sometime after 2:00 a.m. and prior to 3:12 a.m. Burd attended at Upward’s cell, where he spoke to Upward through the glass window and door to the cell. The purpose of this discussion was to advise Upward of his change in jeopardy now that he was facing the more serious charge of aggravated assault.

[14] Burd recognized that this was a serious occasion and used a recording device to record the conversation involving the change in Upward’s charge. The audio, and a transcript of the audio, were put into evidence at the voir dire. While the audio was on occasion difficult to hear, it is clear that Upward was advised of his change in jeopardy and he was again given his right to counsel. He was not given the secondary caution of his right to remain silent. Upward responded to Burd, indicating that he was scared and had nothing to do with the assault. He also indicated he wanted to speak to a lawyer, but did not know any lawyers.

[15] Upward was afforded an opportunity to speak to another lawyer, when he spoke to duty counsel sometime between 3:14 a.m. and 3:18 a.m.

[16] The booking sheet was entered into evidence. While defence counsel conceded nothing of significance occurred during the actual booking, counsel does argue that there is a complete gap in the evidence to establish what, if anything occurred in terms of police contact with Upward after he was lodged in his cell. This is demonstrated by reason of the absence of any video showing the comings and goings in the cell area. The video of the cell area had been requested by the Crown, but for unexplained reasons has been mislaid. Defence counsel argues the Crown has a heavy onus of proof in this voir dire to establish that at no time was Upward subject to police coercion or deception. With the absence of the video, it is suggested the Crown cannot meet this heavy onus.

[17] The time frame that Upward was in his cell, particularly the six hours between when he was advised of his change in jeopardy and the commencement of the interview that forms the basis for this motion is also significant, in that the Crown presents no information as to whether Upward was awake or asleep in this six hour time frame (approximately 3:00 a.m. to 9:00 a.m.). This takes on significance because the defence argues that Upward was sleep deprived and thus tired when he was interviewed. Factually, Upward had driven from his home in Red Lake to Ottawa, and then to Keswick the day of September 3, 2011. One can take judicial notice that this would have entailed driving a considerable distance over a considerable period of time, which undoubtedly may have caused Upward to be quite tired. This state of affairs will be compared with Upward’s presentation during the interview, and is taken into account when I consider all of the surrounding circumstances leading up to and the actual conduct of the interview.

[18] Prior to conducting the interview of Upward, Burd confirmed in his evidence that he had reviewed witness statements and obtained updates on Connors’ medical status. Going into the interview Burd knew that Upward had no criminal record. He knew from information he had obtained during the course of obtaining and reviewing witness statements, including information from Upward’s wife, that Upward had a close relationship with his family and his wife. He knew that Upward, perhaps not surprisingly as this was Upward’s first encounter with this type of police investigation, was very scared. He knew that Upward had been in police custody approximately 11 hours.

The Interview and Confession

[19] Burd’s interview of Upward was relatively short in comparison to some police interviews leading to a so-called confession. It began at 9:16 a.m. on September 4, 2011, and was complete by 9:55 a.m. The interview was conducted by video and audio, both of which were of good quality. At the beginning of the interview Burd provided Upward with a glass of water. Burd informed Upward he was aware that Upward had spoken to duty counsel twice and asked him if he received all the legal advice he needed, to which Upward responded that he had been advised not to answer any questions. Burd did not re-caution Upward, nor did he suggest that Upward speak to counsel again.

[20] During the course of the interview, Upward requested a “parka” as he was cold. Prior to this there was no recorded complaint made by Upward that he felt cold. Also during the interview Upward advised Burd he took medication for high blood pressure, to which Burd responded that the police would get it for him, or his wife could bring it into the police station for him. Upward advised Burd he required the medication in the morning, but did not indicate there was any urgency for him to obtain the medication. Prior to the interview there was no information available to the police, either from Upward directly or from any other source, that Upward needed medication.

[21] Also during the interview, Burd became aware of how tired Upward was from all the driving he had done on September 3, 2011. Upward advised Burd he was “poofed”. He had also been drinking alcohol prior to his arrest. There is, however, no evidence of how much he consumed or what his BAC was, if any, when he was interviewed between 9:00 a.m. and 10:00 a.m.

[22] As for the interview itself, anyone watching the interview would be hard-pressed to conclude that Upward demonstrated any unease with the process. He appears and sounds relatively relaxed considering the situation that he was facing. He was polite and responsive. He confirmed that he understood the advice he had received from duty counsel, when he advised Burd that he had been told not to answer any questions from the police. While he did indicate on one occasion that he wanted a parka, other than that comment he never suggested that he was so cold that it was impairing his ability to understand what was going on around him. He did indicate that he was on medication for high blood pressure, but other than a brief comment on this topic he never suggested that he was in dire need of his medication, nor did his demeanour indicate that the absence of his medication was impacting on him either physically or cognitively.

[23] As to the how the interview was conducted by Burd, it was - in my opinion, very low key. Burd at no time raised his voice to Upward, nor did he appear angry with him. It was an agreed upon fact between counsel, that at no time while Upward was in custody was he subject to any verbal threats or gestures. This agreed upon fact was amply exemplified by what took place on camera in the roughly 45 minutes that Burd interviewed Upward. It is fair to say that Burd, at times, dominated the discussion suggesting things to Upward. At no time did he specifically ask Upward for his version of what happened. While Burd stated in chief he was “looking for the truth”, he confirmed in his cross examination that he believed he knew what happened and that he was looking for a confession.

Position of the Crown

[24] Crown counsel argues that throughout the interview, Upward demonstrated he had an operating mind devoid of any threats or inducements. It is argued that there is no evidence Upward was scared or concerned for his family. There is no evidence that Upward suffered from any psychological condition that might make him more vulnerable than the average person, facing similar circumstances as he faced, the morning of September 4, 2011. It is noted there is no evidence that Upward was under the influence of drugs or alcohol.

[25] It is argued by the Crown that throughout the interview Burd treated Upward with respect, and that the interview was “relaxed”. As for the time it took to begin the interview, it is suggested there was good reason for the delay, i.e. Burd had to wait for his superior officer’s assistance as a monitor. Implicitly, it is argued the 11 hours in custody prior to the interview were not part of a larger design, on the part of Burd, to break the free will of Upward.

[26] It is argued that while the defence points to Upward being sleep deprived and tired, there is no evidence of this during the interview other than Upward saying on one occasion he was “poofed”. There is evidence that Upward was entirely comfortable with how Burd conducted the interview, as demonstrated by Upward telling Burd about the death of his father. It is also suggested that Upward knew what was going on, and that he knew Burd had an agenda, as demonstrated by the following dialogue at page 19 of the transcript:

Upward: I mean, I know what you said (I know where you sit), I mean, you’re - you’re the law enforcement officer and I’m the accused.

Burd: Uh-hum.

Upward: And you you’ve got an agenda and I don’t – I don’t want to put myself in a compromising way or say anything that will end up you know, shuffling me behind bars for a longer period of time.

[27] As for the technique employed by Burd in his questioning of Upward, the Crown responds to the concerns raised by the defence that the Court heard no expert evidence on the technique used, and no specific evidence about the use of the Reid Technique. Regardless of the absence of such evidence, the Crown points to the evidence of Burd himself who said he used various techniques and was not specifically trained in the Reid Technique. Even if Burd can be faulted in some way for the use of the Reid or any other technique, that in and of itself does not render the confession inadmissible.

[28] The Crown accepts it has the onus of establishing that Upward gave a statement which was voluntary and free of any threats or coercion. In response to the defence assertion that the Crown cannot meet this heavy burden, given the absence of any evidence as to what occurred in terms of police involvement with Upward during the six hours prior to the interview, the Crown argues that it does not have to prove what happened at every moment of Upward’s detention in custody. Pointing to R. v. Papadopoulos et al., [2006] O.J. No. 5465 at para. 70, the Crown argues there is no evidence in the six hour pre-interview of any threats, inducements or promises being made. The video of the cell area might have been confirmatory of the lack of police involvement with Upward, but its absence does not allow the court to speculate on what, if anything, happened in the critical six hours between 3:00 a.m. and 9:00 a.m.

[29] Dealing with what occurred during the change in jeopardy conversation between Burd outside the cell and Upward inside the cell, it is acknowledged - as it was by Burd in his evidence, that in hindsight he would have been better served if the conversation had not taken place behind a closed door. As well, it is accepted that Burd did make a mistake when he did not give Upward the secondary police caution relating to his right to remain silent. Despite these imperfections and mistake, the Crown argues there can be no doubt that Upward understood the change in the charge and the significance of that change. This is made clear by reason of the fact Upward spoke to duty counsel after the change in jeopardy conversation, and as demonstrated during the interview he understood from duty counsel that he should not answer police questions.

[30] As to the suggestion that Burd used a technique that involved deception and trickery, Crown counsel argues that the case law confirms police are entitled to use investigative techniques to encourage a detainee to speak. It is improper to use such techniques only if it raises a reasonable doubt that a suspect’s will was overborne.

[31] The Crown suggests, in its written argument, that at no point did Burd present Upward with false or non-existent evidence of his guilt. The Crown accepts that Burd did agree in his evidence that he exaggerated the evidence against Upward, but he did not lie to him about the evidence and he did not fabricate evidence. As I will make clear later in my Reasons, I do not agree with the Crown in its analysis of Burd’s evidence in this regard. In my view, Burd did present Upward with a false understanding of the evidence that the police had against him. But even if this is my conclusion, the Crown suggests that it is not every occasion of oppressive conduct that renders a statement inadmissible. Relying on the Ontario Court of Appeal decision in R. v. Hoilett, [1999] O.J. No. 4842 at para. 24, the Crown suggests that where there is oppressive conduct found by the Court, there must still be an inquiry as to whether or not there is a nexus between the oppressive conduct and the decision on the part of Upward to speak to Burd.

Position of the Defence

[32] Defence counsel fundamentally argues that the technique employed by Burd in his interrogation of Upward was manipulative and unfair, and resulted in an atmosphere of oppression that resulted in Upward’s will to resist being overborne. In that regard, the defence points to the fact that Upward was a compliant and deferential detainee facing police custody for the first time in his life. He had received advice from duty counsel and advised Burd, based on that advice, that he did not want to answer police questions. Part of the oppression employed by the police involved detaining Upward for nearly 11 hours before the interrogation, together with the fact he was kept in a cold cell. By the time the interrogation began he was sleep-deprived, and faced an interrogation that included the use of unfair and improper manipulative techniques that included lies, trickery and inducements calculated to obtain a confession, by convincing Upward that any protestation to the contrary was futile.

[33] The defence points to various themes that Burd employed to obtain Upward’s statement. These themes, which to a large extent were confirmed by Burd in his evidence, included the following:

a) I know what happened and you are guilty;

b) I spoke to your wife at length about what happened;

c) I want to hear remorse from you because it is important to hear remorse from you;

d) I understand that you were only defending your brother and that you never meant this to happen;

This theme, it was agreed by Burd, included two aspects: i) it served to minimize Upward’s culpability; and ii) it provided an explanation for Upward’s conduct that justified his conduct.

[34] Throughout the interview, Burd acknowledged in his cross examination, that he deceived Upward into believing that he knew who had committed the offence, even though he admitted he did not know that Upward had committed the offence. The foundation for this deception was Burd’s assertion to Upward that he had interviewed 20 witnesses and spoken with his wife, leaving the impression that his wife had provided incriminating evidence to the police. Such an impression was false, given that Mrs. Upward had told the police she did not see what happened, nor did she know what happened. It also was completely false to leave the impression that 20 witnesses might have provided incriminating evidence against Upward, when in fact only one witness had provided evidence implicating Upward, with the balance of the witnesses essentially saying they did not see and or did not know what happened.

[35] The defence argues that where Burd acknowledged he had intentionally presented Upward with false evidence to obtain a confession, this court must proceed very carefully before accepting that the confession was voluntary and free of coercion. This is particularly so in relation to the perceived false impression that the police had incriminating information from Upward’s wife.

[36] The defence also points to the technique adopted by Burd to elicit a confession, whereby Burd suggested he wanted to hear remorse from Upward that implicitly left an impression which may have had some bearing on him obtaining bail. Burd gave Upward two options, he was either a monster on a rampage or he simply hit someone while attempting to help his brother. What Burd did not do is give Upward a third option, and that was to get his version of what happened, free and clear of any pre-conceived ideas or trickery.

[37] As well, the defence points to the minimization of Upward’s conduct in coming to the aid of his brother as part of the improper technique employed by Burd to obtain a confession. Specifically, to suggest that Upward was a “decent guy just protecting his brother” went beyond just downplaying his moral culpability, it left the impression that he had lesser moral culpability and perhaps even a justification for his actions. This technique adopted by Burd, it is argued by the defence, clearly sent a message to Upward there would be minimal legal consequences if he was in fact a decent guy just helping his brother. The defence acknowledges that leniency per se was not offered to Upward by this technique, but anyone in Upward’s position may easily have perceived he would be treated more leniently.

[38] Both counsel acknowledge that the law is clear, that I am required to look at all of the circumstances and the context of the statement as a whole in deciding whether Upward’s statement was voluntary. In that regard counsel for the defence, looking at the totality of what happened in the 11 hours leading up to the interrogation, points to the absence of a secondary caution, both when Upward received his change in jeopardy and when the interrogation commenced. Similarly, it is suggested that while Burd did give Upward his rights to counsel, Burd undermined the advice he was given when he suggested to Upward that all lawyers give the same advice. Implicitly, it is argued that the advice he got was not useful or helpful advice, given the particular predicament facing Upward, and that he should ignore the advice.

Analysis

[39] It is often said in a non-legal context that first impressions are long lasting impressions. If one were to simply review the 45 minute video of Burd questioning Upward, without knowing anything else about the background of what led up to the taking of the statement, it would be difficult to come to any other conclusion other than the statement given by Upward was voluntary and given in an atmosphere that lacked coercion and oppression. Burd appears to be extremely courteous towards Upward, and there is little to suggest from Upward’s conduct that he did not understand he had the right to remain silent, but chose to say what he did freely and of his own free will.

[40] But first impressions can often be wrong, which is why this court must be on guard to prevent a miscarriage of justice by not allowing into evidence a confession that was obtained by police trickery, or a confession that was obtained in an oppressive manner. The same holds true for a confession that results from an improper threat or inducement, and thus a confession from an accused without the requisite operating mind.

[41] Any analysis as to the admissibility of an accused’s statement to a person in authority must begin with the proposition that such statement is presumptively inadmissible, and that voluntariness is the touchstone of the confessions rule. As such, it is beyond doubt that the Crown has a heavy onus to establish beyond a reasonable doubt that the statement was made voluntarily (see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 at para. 69, and R. v. Spencer 2007 SCC 11 at para. 11 and 12). The issue I have to decide is if the Crown has in fact met this heavy onus.

[42] Defence counsel argues that the Crown cannot meet its heavy onus because of the gap in the evidence as to what happened to Upward while he was in his cell. It is argued that there must be positive evidence adduced by the Crown to establish that in the 11 hours leading up to the taking of the statement, nothing happened that could impact on the voluntariness of Upward’s statement.

[43] While I agree with the defence that it would have been preferable if the Court had the benefit of the video that depicted the comings and goings in the cell area where Upward was being held, I have the evidence from the preliminary inquiry of the various police officers who did have contact with Upward from the time of his arrest (including the evidence of Burd on the voir dire), and there is nothing in that evidence that would lead the court to question that anything that might impact on the voluntariness of Upward’s statement occurred in that 11 hour time frame.

[44] In R. v. Holmes, 2002 ONCA 45114, [2002] O.J. No. 4178, the Ontario Court of Appeal reviewed the leading case at that time (R. v. Koszulap (1974), 1974 ONCA 1461, 20 C.C.C. (2d) 193), where an accused had been detained 22 hours in police custody prior to the taking of his statement. In Koszulap, supra, Arnup J.A. expressed concerns about the failure of the Crown to show how the accused was treated in that 22 hour time frame, and stated:

…It was, in my view, incumbent on the Crown to show affirmatively that the accused was properly treated, and not questioned, if that were the fact, or to show the facts, if they were otherwise…

[45] Having reviewed the law as it then stood, the Court of Appeal in Holmes, supra, stated in relation to the onus on the Crown that: “…the trial judge must have regard to all of the circumstances when determining the voluntariness of a statement…”.

[46] Unlike the facts in Holmes, I did have the benefit of all of the police officers who were involved in the arrest, booking, detention and taking of the statement. There is nothing in that evidence which would give reason for this Court to consider Upward had any contact with a police officer who may have had any influence on the ultimate statement given by Upward to Burd.

[47] In R. v. W.G., [2010] O.J. No. 4484, Spies J. reviewed various authorities that deal with so-called gaps in the Crown evidence as it relates to the onus on the Crown to call all the police officers involved in the taking of an accused statement. Citing Koszulap and Holmes, Spies J. noted at para. 32 of her reasons:

…However it is important to remember, as stated by Arnup J.A. in Koszulap, that it is not every case where an accused person is detained in police custody for a considerable period of time before making a statement to a police officer that the Crown must account for every part of that period with respect to contacts with the accused.

[48] While there is no onus on an accused to proffer any evidence on a voir dire like the one before me, this court cannot enter into the realm of speculation as to what might have happened in the 11 hour time frame leading up to the statement Upward gave to the police. As the British Columbia Court of Appeal stated in R. v. Chow (1978), 1978 BCCA 2499, 43 C.C.C. (2d) 215 at para. 18:

…In the absence of some evidence of conversations with a person in authority before the statement was made, I do not think there is a rule of law which requires rejection of a statement because of the mere possibility or conjecture of an earlier conversation in which threats or promises have been made….

[49] I have considered the gap in the evidence, given the absence of video that should have been available to the Court that would have revealed the comings and goings in the cell area where Upward was detained. The inability to produce the video was not due to nefarious reasons. None was suggested by the defence. I have also considered that there is some reason to doubt the accuracy of the booking log. In my view, the lack of the video and concerns regarding the booking log are facts that must be weighed in the balance. I am satisfied with all of the other evidence, from the various police officers who testified at the preliminary inquiry together with Burd’s evidence, that the totality of the evidence leads me to conclude that in the 11 hour time frame that Upward was detained prior to his statement, that no one had any contact with Upward that would question the voluntariness of his statement.

[50] My conclusion that the Crown has met its onus of establishing that nothing occurred in the 11 hour time frame prior to the taking of the statement that would impact on the voluntariness of Upward’s statement, is not determinative of whether the statement was voluntary. I move to the actual statement itself. The defence argues that Upward was a shaken, vulnerable individual who was sleep deprived, and who had been detained in a cold cell with a light that remained illuminated throughout his detention. The Supreme Court of Canada in R. v. Oickle, supra, at para. 42, confirms that when determining the voluntariness of a confession, the court must keep in mind the “particularities of the individual suspect”.

[51] There can be no doubt that being detained by the police is likely a very stressful situation for most people charged with a serious criminal offence. This is probably even more so for someone like Upward who had no criminal record, or no prior involvement of any kind with the police prior to September 2011. A review of the video, however, does not lead me to conclude that even if Upward was facing a very stressful situation in circumstances very foreign to him, that what he said to Burd was anything other than a voluntary statement. The entire dialogue between Burd and Upward was very low key. Both Burd and Upward were polite and respectful to each other. Yes, Upward faced a stressful situation. Yes, he may have been particularly vulnerable given the seriousness of the charge and the fact he had never had any involvement with the police prior to September 2011. But even taking these factors into account, looking at all of the circumstances and the entirety of the video, I cannot say that Upward’s “particularities” call into question the voluntariness of his statement.

[52] This then brings me to a review of the statement, insofar as the suggestion made by the defence that the method of questioning by Burd was such that this court should find oppressive conduct sufficient to rule against a finding of voluntariness. In this part of my analysis I consider the suggestion that not only was the method of questioning oppressive, but also the suggestion that Burd used trickery and lies together with an offer of a quid pro quo to obtain the confession.

[53] The defence suggests that Burd used a coercive psychological technique, specifically what is known as the Reid Technique, to extract a confession from Upward. The defence pointed to a number of academic papers that call into question the appropriateness of the Reid Technique, and suggests that this technique has been demonstrated to have been the cause of false confessions and wrongful convictions in the past. My difficulty with this submission is that I have no evidence before me of how, if at all, the Reid Technique has been shown to have produced false confessions from innocent suspects. Perhaps more importantly, Burd denied in his evidence that he had adopted the Reid Technique as the basis for how he went about questioning Upward.

[54] Before I leave the topic of the Reid Technique and the absence of expert evidence, I fully accept that there have been a number of cases in the past where judges of this Court and other Courts across the country have expressed serious concerns regarding the Reid Technique and how it was used to extract a confession from an accused. The actual use of the Reid Technique has not been determined in and of itself illegal, or so improper that it can never be used. Each case is unique and must be determined on its own facts. The police are entitled to investigate crimes by questioning detainees who are suspected of having committed a crime. If the police properly question a suspect, this is an entirely legitimate means of criminal investigation. If the use of the Reid Technique in any particular case is shown to have been oppressive, and is shown to have overcome the freedom and will of the suspect, then the police will have extracted a confession which will be inadmissible. This is not such a case.

[55] Even if I had accepted the concerns over the Reid Technique, and was satisfied on the evidence before me that Burd did in fact use the Reid Technique, this would not end the matter. The police are entitled to use investigative techniques to encourage an accused to speak. A police technique is only improper if the technique employed raises a reasonable doubt that the suspect’s will was overborne - see Oickle, supra, at para. 57.

[56] I accept Burd’s evidence that he did not specifically employ the Reid Technique, but rather employed various techniques that he had received training in. Moreover, having listened to the entirety of Burd’s evidence, I was left with the inescapable conclusion that the way Burd presented during the course of Upward’s interrogation was precisely the way he presents in everyday life. Burd struck me as a relatively low key individual who is not overbearing in his presentation to others. This is how he presented on video of the interrogation of Upward. I saw nothing oppressive about the questioning or dialogue that took place in the 45 minutes that Upward was interrogated.

[57] The defence has raised as an issue the use of lies, deception, and misleading evidence that was put to Upward during the course of the questioning of Upward. Crown counsel suggests in her written materials that in fact Burd did not lie to Upward. I disagree. Burd himself conceded that he lied to Upward. As well, Burd suggested to Upward he had spoken with 20 witnesses, which led to his arrest on a charge of aggravated assault. This reasonably would have led Upward to believe that those 20 witnesses had implicated him in the assault.

[58] The fact that Burd lied to Upward and used deception to have him believe the evidence in the hands of the police was overwhelming against him, does not by itself render his statement and confession inadmissible. That said, as the Supreme Court stated in Oickle, supra, at para. 61:

A final possible source of oppressive conditions is the police use of non-existent evidence. As the discussion of false confessions, supra, revealed, this ploy is very dangerous…The use of false evidence is often crucial in convincing the suspect that protestations of innocence, even if true, are futile. I do not mean to suggest in any way that, standing alone, confronting the suspect with inadmissible or even fabricated evidence is necessarily grounds for excluding a statement. However, when combined with other factors, it is certainly a relevant consideration in determining on a voir dire whether a confession was voluntary.

[59] Clearly Burd was moving into dangerous waters when he, on his admission lied to Upward, and when he created a false impression of the evidence in the hands of the police that suggested Upward was involved in the assault against Connors. Such oppressive conduct, however, goes to the fundamental issue of whether the Crown has met its onus of establishing beyond a reasonable doubt that Upward’s statement was voluntary. As Watt J. (as he then was) said in R. v. Roy, at para. 262:

Police trickery is related to voluntariness, but it has much more to do with the integrity of the administration of criminal justice. And there may be situations where police conduct is so appalling that it shocks the community, even though it has no affect on voluntariness, or on any constitutionally protected right, such as the right to silence. A police confession may be excluded where the police conduct shocks the community....

[60] The so-called police trickery evident from Burd’s interrogation of Upward is, in my view, a long way from anything that would shock the community. Looking at the entirety of the circumstances confronting Upward, including the 11 hours he had been in custody, the fact that he may have been cold and tired, I am not satisfied from having watched the video of his interrogation that the police trickery was such as to render his statement and confession unreliable. The questioning was not overbearing. The questioning took place over a relatively short period of time. Upward understood from the legal advice he had received that he did not have to speak to the police. The misapprehension of the evidence in the hands of the police did not fundamentally go to the core of whether Upward’s statement was voluntary. It was.

[61] I now move to the concerns raised by the defence over the possible denigration of the advice provided to Upward by duty counsel. The defence argues, in its written materials, that Burd’s statement to Upward that “all lawyers give the same or very similar legal advice”, i.e. not to speak to the police, was “shorthanded to suggest that such advice was not valuable or useful for the particular predicament faced by Upward”.

[62] What is important to note in connection with the so-called denigration of the legal advice received from duty counsel is how Upward reacted to that comment made by Burd. Upward responded by stating that he knew the police had “an agenda”, and that he “didn’t want to put himself in a compromising way” that could “shuffle me behind bars”. Upward’s response leaves me with little doubt that even if Burd was trying to denigrate the advice of duty counsel, it had no impact on Upward’s decision as to whether he would or would not follow that advice.

[63] Finally, I deal with the suggestion made by the defence that the thrust of Burd’s questioning was to offer Upward a quid pro quo, which consisted of:

i) an implied suggestion that if Upward showed remorse it could impact on his ability to get bail; and ii) to satisfy Burd’s dichotomy that Upward was either a monster on a rampage who would likely reoffend, or he was a decent guy just protecting his brother.

Dealing with the first of these concerns, that Upward was essentially induced to give a statement and thereby implicate himself to show remorse and thus get bail, I am not satisfied from my review of the video that in fact such an inducement was made by Burd. While there was discussion about the bail process, this occurred after Upward had given his story and demonstrated what he did when he intervened in the altercation between his brother and Connors.

[64] Even if I had come to the conclusion that there was in fact some kind of quid pro quo offered to Upward, that may have lead Upward to believe he might get an earlier release on bail, it is not every quid pro quo that will render a statement and confession inadmissible. The Supreme Court in R. v. Spencer, supra, made clear that while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is not every such quid pro quo that renders the statement involuntary. The court must look to the strength of the inducement, having regard to the particular individual and his circumstances that must be considered. Put in the context of when the discussion took place between Upward and Burd regarding when Upward might be released, I don’t accept that this discussion even if viewed as a quid pro quo impacted on the voluntariness of Upward’s statement.

[65] Dealing with the suggestion that Upward was confronted with two choices that left him no choice but to confess, I also eliminate this as a basis to reject his statement as being involuntary. Watching the video in its entirety, it is clear to me that Upward knew he was not the possible monster that the defence suggests as one scenario that he was confronted with. As to the second scenario that left him no choice but to accept this as what happened, i.e. he went to the aid of his brother, in fact the video demonstrates that Upward clarified his position that he didn’t punch Connors as suggested by Burd. Rather, he demonstrated what he did, making evident that he didn’t punch Connors. Such demonstration leads me to conclude that if there was an appeal to Upward’s conscience and morality, it was not such as to have impacted on the voluntariness of his statement and demonstration of what happened on the night of September 3, 2011.

Conclusion

[66] I am satisfied beyond a reasonable doubt of the voluntariness of the statement given by Upward, reflected in the video marked as Exhibit 2 as well as the Change in Jeopardy audio marked as Exhibit 1 on the voir dire.

Justice M.L. Edwards

Released: January 29, 2016