Court File and Parties

COURT FILE NO.: 7513/14 DATE: 2017/02/27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JOHNATHAN TOWNSEND

Counsel: Ms. H. Mitchell and Ms. C. Tomusiak, for the Provincial Crown Ms. J. Tremblay-Hall, for Johnathan Townsend

HEARD: February 13,14, 2017 Varpio, J.

REASONS ON VOLUNTARINESS

[1] This motion was brought by the Crown for a finding that Mr. Townsend’s video statement given to police on August 10, 2013 was given voluntarily and is thus admissible into evidence.

[2] For his part, Mr. Townsend submitted that the statement was not given voluntarily and should be excluded from evidence. Specifically, Mr. Townsend submitted that:

1. Mr. Townsend did not have an operating mind when he gave the statement;
2. Mr. Townsend was subjected to inducements/trickery whereby D/Sgt. Armstrong (the interviewing officer) implored Mr. Townsend to tell his side of the story so as to ease the moral burden being felt by Mr. Townsend’s parents; and
3. The cumulative effect of the above two points is such that the statement given by Mr. Townsend was not voluntary.

[3] For the following reasons, I am satisfied beyond a reasonable doubt that the statement given by Mr. Townsend was provided voluntarily and is, accordingly, admissible.

EVIDENCE

[4] On August 8, 2013, Ms. Corellie Bonhomme was killed.

[5] On that date, Mr. Townsend left his apartment and attended the Sault Area Hospital (“SAH”)’s emergency department seeking psychiatric care. Mr. Townsend was in the hospital for two days.

[6] During that interval, Mr. Townsend’s father entered Mr. Townsend’s apartment where he found, inter alia, Ms. Bonhomme’s dead body in a bathtub. Mr. Townsend’s father called police and an investigation began. Mr. Townsend was arrested for second-degree murder on August 10, 2013. On that date, he gave a video statement to police wherein he admitted to killing Ms. Bonhomme.

[7] The Crown called three witnesses in support of this motion. The defence called no evidence.

The Lead-Up to the Interview

[8] The first witness was Dr. Chinedu Ogbanna, who was employed as a psychiatrist at SAH. Dr. Ogbonna did not give expert evidence, but testified that he was the psychiatrist that met with Mr. Townsend when the latter checked himself into the hospital. Dr. Ogbanna testified that there was concern that Mr. Townsend had previously attempted suicide and that he may have been considering another attempt. Dr. Ogbanna stated that, when he met with the accused, Mr. Townsend’s speech was normal and that Mr. Townsend did not appear agitated. Mr. Townsend said to Dr. Ogbanna that he wasn’t having any more thoughts of suicide.

[9] Dr. Ogbanna testified that Mr. Townsend was having his meals, did not appear overly tired and that his concentration appeared satisfactory. Dr. Ogbanna asked questions of Mr. Townsend and Mr. Townsend was responsive and coherent. Further, Dr. Ogbanna noticed no changes in Mr. Townsend’s behavior during his meetings with the accused.

[10] Dr. Ogbanna also testified that Mr. Townsend’s appearance was appropriate, his dress was not disheveled and that his personal hygiene was satisfactory. Dr. Ogbanna stated that Mr. Townsend’s appearance was appropriate and that his body language was not agitated, but was calm and relaxed.

[11] Dr. Ogbanna testified that Mr. Townsend displayed no signs of impairment by alcohol.

[12] In cross-examination, Dr. Ogbanna indicated that he was aware that Mr. Townsend had Asperger’s Condition which can affect the manner in which Mr. Townsend answered questions.

[13] The Crown then called D/Cst. Joe Addison. D/Cst. Addison testified that he was partnered with D/Sgt. Armstrong when the pair were called to investigate an apparent homicide at Mr. Townsend’s residence on August 10, 2013. D/Cst. Addison and D/Sgt. Armstrong attended at the SAH. D/Sgt. Armstrong arrested Mr. Townsend. D/Cst. Addison testified that, during his interaction with Mr. Townsend (which lasted from the arrest until Mr. Townsend’s transport to the Sault Ste. Marie Police Station), the latter’s appearance was unremarkable. Mr. Townsend at all times appeared to be calm and cooperative.

[14] D/Sgt. Armstrong testified last. D/Sgt. Armstrong audio and/or video taped the entirety of Mr. Townsend’s involvement with police leading up to the impugned statement. D/Sgt. Armstrong spoke with Mr. Townsend during the arrest. The officer’s voice was calm. There was no conversation with Mr. Townsend during transport to the station. Two other officers were also in the car.

[15] At the station, Mr. Townsend was treated respectfully by all police officers prior to Mr. Townsend entering the interview room (as evidenced by the audio and video).

The Interview

[16] During the interview, D/Sgt. Armstrong began by asking Mr. Townsend questions about the accused’s background. The pair discussed Mr. Townsend’s obvious intelligence and the latter’s aptitude in mathematics. At all times, D/Sgt. Armstrong was calm. Mr. Townsend appeared to be relaxed as he drank a soft drink and periodically sat on his chair with his legs tucked under himself.

[17] The officer asked Mr. Townsend about whether causing pain to another was right or wrong. Mr. Townsend replied:

Armstrong: Yeah. If I were to hurt somebody, somebody else. Hurt badly I mean. If I were to go, if I were to take my gun and go shoot somebody, what do you think about that? Think that’s wrong? Townsend: I think even just mild pain would be defined as wrong. Armstrong: You’re absolutely right. You are absolutely right. Um, so even mild pain is, it’s not right to hurt someone else. Right? Are we on the same page on that or? Townsend: I believe so.

[18] This is a nuanced answer. Mr. Townsend continued to provide nuanced answers to D/Sgt. Armstrong throughout the interview. In fact, Mr Townsend corrected D/Sgt. Armstrong when the latter was incorrect regarding certain aspect of Mr. Townsend’s involvement with the murder. [1]

[19] D/Sgt. Armstrong also discussed aspects of criminal law. At one point, D/Sgt. Armstrong asked Mr. Townsend if the accused could define “evidence”:

Armstrong: Kay. What, what’s evidence to you? Wh-how would you describe what evidence could be? What could be evidence? Townsend: Um, any physical piece of thing that suggests anything’s linked to anything else. Armstrong: That’s right. Townsend: Such as a uh, uh, fossil that is kind of human like and certain characteristics but somewhat uh, apelike in other characteristics as the uh, uh, example of evidence used in uh evolution. Just anything physical that shows that two things are possibly or probably linked.

[20] D/Sgt. Armstrong also made reference to Mr. Townsend’s parents. The officer asked Mr. Townsend to give his version of events so as to assuage Mr. Townsend’s parents. D/Sgt. Armstrong suggested that Mr. Townsend’s parents were concerned that their son killed the victim in the same fashion that Jeffrey Dahmer or Paul Bernardo had killed their victims:

Armstrong: Do you think your dad deserves to know why this happened? I don’t mean the gory details as far as the violence part of it. I mean why this happened. He needs to understand. He’s tried to understand you. He has, he’s still trying to understand you. He’s doing everything in his power. I’ve talked to him probably 10 times today. I’ll probably talk to him 20 times tomorrow. I’m gonna be talking them almost every day. Cause you know what, your mom and dad are victims here. Your mom and dad are shattered right now. And only you can help put those pieces back together. Only you can give the answers to help them be able to put some resemblance of a life back together. Not me. Cause I’m only going back saying, “I go no answers for you. I’m sorry.” What can I tell them John? Townsend: I guess that they have to wait until I’ve spoken with a lawyer. Armstrong: Do you think that’s fair to them? Townsend: It depends. Armstrong: Why would it depend? Townsend: Well, depending on what happens over the next, however long it might be in their best interest not to know yet. For example, if in the future they’re gonna be called up uh, for like trial or something, you know. Townsend: I do care about my parents, but even though I do care about them, I also care about my own well being. Armstrong: Mm hmm. Townsend: And my lawyer advised me not to talk about this until after I’ve spoken with her.

[21] On several occasions, Mr. Townsend indicated that he did not wish to speak about the incident until he had further opportunity to consult with counsel. [2] D/Sgt. Armstrong pressed the issue, appealing to Mr. Townsend’s conscience regarding his parents’ concerns. The pressing of the issue is best exemplified by the following exchange:

Townsend: Not until… Armstrong: …you should talk about it. Townsend: …I’ve spoken to my lawyer. Armstrong: Okay. But your lawyer isn’t the one who is here in jail with you uh, right now. You’re in jail. You’re the one who people are saying, here’s this big bad buy did this horrible thing. There’s no doubt in my mind, zero doubt that you caused the death of Corellie. Not even a little bit. I know that you caused the death of Corellie. We have a mountain of evidence and that’s why you’re, you’re in custody right now. That’s why you’re arrested right now. Okay? We have unbelievable evidence and that’s why you’re in custody. That is not the issue here. What you did. We know what you did. We know exactly what you did between the cameras, between the, the blood, between your hair, between your fingerprints, your shoe prints, your hand prints, your foot prints. Not just in your apartment, but in her blood. I don’t mean under her blood, I mean on top of her blood which means you’re doing, you’re there when this is happening. That is something you cannot refute. You cannot say, “No, I wasn’t there when this happened”. No. It’s, you can’t refute it. Your there when it happens. And you’re causing ti. What we don’t know and what your mom, dad, anybody in this world that cares about you and loves you don’t know is why. That’s the one question we don’t know out of everything and that’s up to you to explain why. What happened John? Do you wanna tell your side of the story? From your s- your perspective, what happened? I think you should tell your side of the story and I think you know you should tell your side of the story. Do you have care and respect your parents?

[22] At about the two hour mark of the interview, Mr. Townsend admitted to killing the victim and provided the explanation that he did so as a result of the victim’s statement that certain people should be “gassed” (which was a reference to Hitler’s Final Solution). Mr. Townsend understood this statement to be a personal threat. Mr. Townsend then described the mechanics of killing the victim.

[23] After confessing to the crime, D/Sgt. Armstrong asked Mr. Townsend whether or not the latter felt better after having confessed. Mr. Townsend equivocated on this point and answered as follows:

Armstrong: Okay. How you feeling right now? Townsend: I don’t know. Armstrong: Do you feel a little better about talking about it? Townsend: No, because I went against my lawyer’s advice. Armstrong: No, but how do you feel about... Townsend: Like they’re gonna be made at me.

[24] Mr. Townsend was also asked towards the end of the interview whether Mr. Townsend disliked the police and Mr. Townsend answered, “no”. Mr. Townsend was also asked if any police officer had ever done anything to make Mr. Townsend mistrust the police. Mr. Townsend answered, “not really”.

[25] During cross-examination, counsel pressed D/Sgt. Armstrong regarding his belief that he only had grounds to charge Mr. Townsend with second-degree murder [3] as well as his decision to not re-read Mr. Townsend the latter’s rights to counsel and caution. [4] Counsel did not address these issues in her submissions.

[26] D/Sgt. Armstrong also admitted that, when he told Mr. Townsend in the interview that he knew what had happened in the apartment, this was an exaggeration. The officer knew certain facts but did not know “exactly” what had happened.

THE LAW

[27] The leading case on the voluntariness of statements is R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 wherein the Supreme Court re-iterated the rule at paragraphs 24 to 27:

As indicated by McLachlin J. (as she then was), in R. v. Hebert, 1990 SCC 118, [1990] 2 S.C.R. 151, there are two main strands to this Court's jurisprudence under the confessions rule. One approach is narrow, excluding statements only where the police held out explicit threats or promises to the accused. The definitive statement of this approach came in Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609:

It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

This Court adopted the "Ibrahim rule" in Prosko v. The King (1922), 1922 SCC 584, 63 S.C.R. 226, and subsequently applied it in cases like Boudreau v. The King, 1949 SCC 26, [1949] S.C.R. 262, Fitton, supra, R. v. Wray, 1970 SCC 2, [1971] S.C.R. 272, and Rothman v. The Queen, 1981 SCC 23, [1981] 1 S.C.R. 640.

The Ibrahim rule gives the accused only "a negative right -- the right not to be tortured or coerced into making a statement by threats or promises held out by a person who is and whom he subjectively believes to be a person in authority": Hebert, supra, at p. 165. However, Hebert also recognized a second, "much broader" approach, according to which "[t]he absence of violence, threats and promises by the authorities does not necessarily mean that the resulting statement is [page23] voluntary, if the necessary mental element of deciding between alternatives is absent" (p. 166).

While not always followed, McLachlin J. noted at p. 166 that this aspect of the confessions rule "persists as part of our fundamental notion of procedural fairness". This approach is most evident in the so-called "operating mind" doctrine, developed by this Court in Ward, supra, Horvath v. The Queen, 1979 SCC 16, [1979] 2 S.C.R. 376, and R. v. Whittle, 1994 SCC 55, [1994] 2 S.C.R. 914. In those cases the Court made "a further investigation of whether the statements were freely and voluntarily made even if no hope of advantage or fear of prejudice could be found": Ward, supra, at p. 40. The "operating mind" doctrine dispelled once and for all the notion that the confessions rule is concerned solely with whether or not the confession was induced by any threats or promises.

These cases focused not just on reliability, but on voluntariness conceived more broadly. None of the reasons in Ward or Horvath ever expressed any doubts about the reliability of the confessions in issue. Instead, they focused on the lack of voluntariness, whether the cause was shock (Ward), hypnosis (Horvath, per Beetz J.), or "complete emotional disintegration" (Horvath, supra, at p. 400, per Spence J.). Similarly, in Hobbins v. The Queen, 1982 SCC 46, [1982] 1 S.C.R. 553, at pp. 556-57, Laskin C.J. noted that in determining the voluntariness of a confession, courts should be alert to the coercive effect of an "atmosphere of oppression", even though there was "no inducement held out of hope of advantage or fear of prejudice, and absent any threats of violence or actual violence"; see also R. v. Liew, 1999 SCC 658, [1999] 3 S.C.R. 227, at para. 37. Clearly, the confessions rule embraces more than the narrow Ibrahim formulation; instead, it is concerned with voluntariness, broadly understood. [emphasis added]

[28] The Court further stated at paragraph 47:

The common law confessions rule is well-suited to protect against false confessions. While its overriding concern is with voluntariness, this concept overlaps with reliability. A confession that is not voluntary will often (though not always) be unreliable. The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

[29] The law makes clear that the “operating mind” requires only that the accused know what he is saying and know that his statements could be used to his detriment (R. v. Oickle, supra).

[30] The majority of the Court in Oickle also examined the effect that exhortations that “It Would Be Better” if the accused confessed had on the statement in question at paragraphs 79 and 80:

The transcripts are indeed rife with these sorts of comments. The police suggested that a confession would make the respondent feel better, that his fiancée and members of the community would respect him for admitting his problem (para. 120) and that he could better address his apparent pyromania if he confessed (para. 122). However, read in context, none of these statements contained an implied threat or promise. Instead, they were merely moral inducements suggesting to the respondent that he would feel better if he confessed and began addressing his problems. And indeed, after his confession, Corporal Deveau asked him "[s]o how do you feel now, Richard?" His answer was "[b]etter".

To hold that the police officers' frequent suggestions that things would be better if the respondent confessed amounted to an improper threat or inducement would be to engage in empty formalism. The tapes of the transcript clearly reveal that there could be no implied threat in these words. The respondent was never mistreated. Nor was there any implied promise. The police may have suggested possible benefits of confession, but there was never any insinuation of a quid pro quo. I therefore respectfully disagree with the Court of Appeal that these comments undermined the confessions' voluntariness.[emphasis added]

POSITION OF THE PARTIES

[31] The Crown suggests that the police engaged in no threatening conduct, provided no inducements and provided Mr. Townsend no quid pro quo for his involvement in the investigative process. There was no environment of oppression and that Mr. Townsend clearly had an operating mind. Accordingly, the statement was made voluntarily and is thus admissible.

[32] Mr. Townsend’s counsel, in her submissions, indicated that the exhortations to Mr. Townsend to make his parents feel better were such that the statement is neither voluntary nor reliable in that:

1. Mr. Townsend’s will was overborne to confess through the inappropriate use of inducements/trickery as compounded by: a) The nature of the inducements to make his parents feel better; b) The fact the interview lasted for over two hours; and c) Mr. Townsend’s physical/psychological condition.
2. Mr. Townsend did not possess an operating mind as evidenced by: a) His prior psychiatric care; b) His physical demeanor in the interview where counsel alleges Mr. Townsend looked like a “cornered animal” with his feet tucked under himself, chewing on his hair; and c) His voice inflections which, counsel submitted, trailed off and thus demonstrate a lack of operating mind; and d) A number of answers of “I don’t know” and the like to questions being asked by the officer.

[33] Counsel pointed to paragraph 42 of Oickle wherein the majority described the concern regarding false confessions:

From this discussion, several themes emerge. One is the need to be sensitive to the particularities of the individual suspect. For example, White, supra, at p. 120, notes the following:

False confessions are particularly likely when the police interrogate particular types of suspects, including suspects who are especially vulnerable as a result of their background, special characteristics, or situation, suspects who have compliant personalities, and, in rare instances, suspects whose personalities make them prone to accept and believe police suggestions made during the course of the interrogation.

And indeed, this is consistent with the reasons of Rand J. in Fitton, supra, at p. 962:

The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or of conversation, all call for delicacy in appreciation of the part they have played behind the admission, and to enable a Court to decide whether what was said was freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them.

Ward, supra, and Horvath, supra, similarly recognized the particular circumstances of the suspects that rendered them unable to confess voluntarily: in Ward, the accused's state of shock, and in Horvath, the psychological fragility that precipitated his hypnosis and "complete emotional disintegration" (p. 400).

ANALYSIS

[34] I disagree with Mr. Townsend’s position with respect to the characterization of the interview. Mr. Townsend did not present as a “cornered animal”. Instead, he presented as a relaxed individual. On several occasions, Mr. Townsend was laughing with the officer in the interview. Mr. Townsend corrected the officer and gave nuanced answers. This was not an individual that was overborne by police conduct wherein the concern for false confessions is heightened. As will be seen below, the conduct of the police, coupled with Mr. Townsend’s obviously operating mind, attenuated these concerns to the point where I am satisfied beyond a reasonable doubt that the statement was voluntary.

[35] First, the police conduct did not amount to trickery or inducement. Much like in Oickle, when viewed within the context of the entire interview process (including the obviously respectful interaction that occurred leading up to the interview as capture by both audio and video), the overtures to Mr. Townsend’s concern for his parents was a plea to his morality. There was no quid pro quo offered nor were there any implied threats or inducements offered by the police. The police conduct in this interview was respectful, relaxed yet firm. The officer allowed Mr. Townsend to answer questions fully in a nuanced fashion. The officer’s demeanor was respectful. While the officer admitted that he exaggerated his knowledge of the crime, it cannot be said that this sort of lie runs afoul of Oickle in that the officer did not offer any suggestions to the accused about what had happened, nor did the statement rise to the level of an inducement. The officer’s exaggeration of his knowledge in these circumstances is not cause for concern.

[36] As for the officer’s statement that Mr. Townsend’s lawyer was not the “person in the cells”, this statement also causes me little concern. The officer had previously told Mr. Townsend that the accused’s lawyer was a good lawyer. As evidenced by his answers [5], Mr. Townsend was engaged in a decision-making process whereby he was deciding whether or not to speak with police. The “lawyer not in cells” statement viewed in this context is not an inducement or a threat but is instead an exhortation to Mr. Townsend to speak with police so as to ease Mr. Townsend’s parents’ moral burden. Again, this form of questions does not run afoul of Oickle as it is not an inducement or other impugned tactic but is instead a plea to morality.

[37] D/Sgt. Armstrong pushed Mr. Townsend for a statement but D/Sgt. Armstrong is entitled so to do. In fact, society needs police officers to use all legally and morally acceptable methods to investigate crime. Pushing an accused to give his version of events via pleas to morality is obviously a valuable investigative tool. As the majority of Supreme Court of Canada stated, to hold that D/Sgt. Armstrong’s exhortations constituted an implied threat “would be to engage in empty formalism”.

[38] Secondly, Mr. Townsend did not lack an operating mind. Mr. Townsend’s voice inflections and occasional answers of “I don’t know” were not indicative of the lack of an operating mind. The “I don’t know” answers (from the context of the entire interview) demonstrated that Mr. Townsend was thinking about his situation. Mr. Townsend – as evidenced by his answers – clearly understood his situation and the impact that providing an answer might have upon his case. He is an intelligent man. Indeed, Mr. Townsend’s answer regarding “evidence” was obviously the product of a mind that understood the situation as it existed on August 10, 2013. Many law students would struggle to provide as cogent an answer as that provided by the accused. I have no evidence before me to suggest that the “I don’t know” answers were anything other than an idiom of speech or a factual assertion that Mr. Townsend “did not know” a certain answer.

[39] Mr. Townsend’s exchange about balancing the benefits to his parents of giving his version of events versus the benefits of maintaining silence also speaks to the fact that Mr. Townsend was attempting to determine whether he should ignore his lawyer’s advice and speak with the police. The calculation displayed within Mr. Townsend’s statement that it might be better for his parents to wait until trial to hear Mr. Townsend’s story demonstrates that Mr. Townsend clearly possessed an operating mind and was balancing his options.

[40] This operating mind is also evident post-confession when Mr. Townsend continues to weigh the benefits of speaking with the benefits of maintaining silence. Mr. Townsend is not overborne by police trickery, but is instead concerned that his lawyer is “gonna be made at me”. This statement demonstrates that Mr. Townsend made a choice to speak and, upon realizing the consequences of his decision, was worried instead about disappointing his lawyer. This concern demonstrates that Mr. Townsend was not simply “agreeing to anything” as per counsel’s submissions, but was instead making an informed choice to speak and was then reconsidering his choice.

[41] As noted earlier, Mr. Townsend’s confidence was demonstrated by his willingness to correct the officer on disputed points. Accordingly, Mr. Townsend was a voluntary participant in the interview process even as he debated whether or not to reject his lawyer’s advice. Mr. Townsend chose to speak with the police as a result of his own nuanced decision-making.

[42] It must also be noted that all three witnesses were clear that Mr. Townsend presented as someone whose mental condition was stable and insightful. No one gave any evidence to suggest that Mr. Townsend lacked an “operating mind”.

[43] Accordingly, despite Mr. Townsend’s possible Asperger’s Condition [6] and despite the fact that he was being released from the psychiatric unit of the hospital, there is no evidence to suggest that Mr. Townsend lacked an operating mind or that he was overborne by police conduct. In fact, the evidence makes clear that Mr. Townsend had an operating mind on August 10, 2013 and was not subject to any inducements, trickery or atmosphere of oppression. As such, there is no basis in this case to be concerned that the false confession scenario described in paragraph 42 of Oickle is a concern in this case.

CONCLUSION

[44] For the foregoing reasons, I am satisfied beyond a reasonable doubt that the statement given by Mr. Townsend to the Sault Ste. Marie Police Service on August 10, 2013 was voluntary as per the provisions in R. v. Oickle. As such, it is admissible evidence for the upcoming trial.

Varpio, J Released: February 27, 2017

CORRIGENDUM

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JOHNATHAN TOWNSEND REASONS on voluntariness Varpio, J

Released: February 27, 2017

DATE: 2017/06/02 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JOHNATHAN TOWNSEND

Counsel: Ms. H. Mitchell and Ms. C. Tomusiak, for the Provincial Crown Ms. J. Tremblay-Hall, for Johnathan Townsend

HEARD: April 18, 2017 Varpio, J.

1. In my decision in this file 2017 ONSC 1204, paragraph 37 states:

   [37] D/Sgt. Armstrong pushed Mr. Townsend for a statement but D/Sgt. Armstrong is entitled so to do. In fact, society needs police officers to use all legally and morally acceptable methods to investigate crime. Pushing an accused to give his version of events via pleas to morality is obviously a valuable investigative tool. As the majority of Supreme Court of Canada stated, to hold that D/Sgt. Armstrong’s exhortations constituted an implied threat “would be to engage in empty formalism”.

2. It ought to have stated:

   [37] D/Sgt. Armstrong pushed Mr. Townsend for a statement but D/Sgt. Armstrong is entitled so to do. In fact, society needs police officers to have the opportunity to use all legally and morally acceptable methods to investigate crime. Pushing an accused to give his version of events via pleas to morality is obviously a valuable investigative tool. As the majority of Supreme Court of Canada stated, to hold that D/Sgt. Armstrong’s exhortations constituted an implied threat “would be to engage in empty formalism”.

Varpio, J Released: June 2, 2017

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JOHNATHAN TOWNSEND SECTION 8 DECISION Varpio, J

Released: June 2, 2017

Footnotes

[1] These nuanced answers and/or corrections of D/Sgt. Armstrong included: (1) Mr. Townsend’s description of being concerned for his parents; and (2) Mr. Townsend correcting D/Sgt. Armstrong when the latter suggested that the victim may have “pushed buttons” such that Mr. Townsend lost control and murdered the victim.

[2] It should be noted that Mr. Townsend spoke with his counsel of choice prior to giving the statement.

[3] It should be noted that Mr. Townsend was initially charged with second-degree murder but that the charge was changed to first-degree murder in or around September 2013.

[4] D/Sgt. Armstrong testified that he chose not to do so because Mr. Townsend had already been provided with rights to counsel and cautioned.

[5] I note especially the answers regarding Mr. Townsend’s balancing the benefits to his parents of speaking versus the benefits of maintaining silence.

[6] I have heard no evidence from anyone – including Dr. Ogbanna – as to what specific effect (if any), Asperger’s Condition would have on Mr. Townsend’s “operating mind.”