Court File and Parties
COURT FILE NO.: 171/14 DATE: 2017-02-22
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Applicant – and – JAN GORO Respondent
Counsel: John Dibski and Sean Bradley, for the Crown Ariel Herscovitch and Ashley Audet, for the Respondent
HEARD: March 21, 22, 24, 2016
REASONS FOR DECISION ON APPLICATION TO ADMIT STATEMENT OF ACCUSED
FITZPATRICK J.
[1] Jan Goro is charged with second-degree murder in this “cold case" homicide. It is alleged that he killed Donald Ross McAvella in April 1976. Mr. Goro was arrested for the murder in 2013.
[2] The Crown brings this pre-trial application to admit into evidence at trial a statement given by the accused to the police on November 29, 2003. It is not disputed that the officers were “persons in authority”. As such, the Crown bears the onus of proving that Mr. Goro gave the statement voluntarily.
[3] For the reasons that follow, I find that the Crown has not proven beyond a reasonable doubt that Mr. Goro’s 2003 statement to the police was made voluntarily. It is not admissible in evidence at his trial.
BACKGROUND
[4] In April 1976, Donald Ross McAvella, aged 54, was killed in his apartment in the City of Burlington. Mr. McAvella was fatally stabbed several times with a kitchen knife. After Mr. McAvella’s body was discovered, the Halton Regional Police secured the scene and began a homicide investigation.
[5] The case was not immediately solved and the investigation continued for many years.
[6] By 2003, the Halton Police had identified Mr. Goro as a suspect in the murder. This was in part the result of Mr. Goro’s fingerprints matching those found at the scene of Mr. McAvella’s death.
[7] In 2003, the Halton Police obtained a warrant to obtain foot impressions from Mr. Goro. Bloody footprints had been located on the floor of Mr. McAvella’s apartment and photographed in 1976.
[8] Mr. Goro was living in Banff, Alberta in 2003. Two Halton Police officers, Detectives Lawson and Britton (now both Staff Sergeants), flew to Alberta and teamed up with officers from the RCMP for the purposes of executing the foot impression warrant.
[9] Mr. Goro was arrested at 9:34 a.m. on November 29, 2003 by Detective Lawson and Constable Lenarcic of the RCMP outside of the location where Mr. Goro worked as a janitor. Mr. Goro was advised that he was being arrested pursuant to the foot impression warrant, given his rights to counsel and cautioned.
[10] At the outset, I note that the police officers went to commendable lengths to ensure that all of their interactions with Mr. Goro were recorded. The recordings, which were played in court, included: a. A handheld voice audio recording from the point of arrest outside Mr. Goro’s place of work to the time the videotaping commenced at the police detachment; b. A handheld video recording inside the police detachment and during the execution of the foot impression warrant; c. Interview room video recording during the police interview (which is the subject of this application); and, d. A handheld voice recorder audio from the police detachment during the drive back to the point where the police dropped Mr. Goro off.
[11] The officers transported Mr. Goro to the Banff RCMP detachment after he was arrested. Upon arrival and prior to the foot impressions being taken, arrangements were made for Mr. Goro to speak to a lawyer privately and he did so.
[12] After Mr. Goro had the opportunity to speak to a lawyer, Sgt. Marzinzik of the RCMP took foot impressions from Mr. Goro with several other officers present. Mr. Goro’s feet were photographed and placed in ink. He then was asked to walk up and down a length of white paper leaving the impressions of his feet.
[13] After the foot impression warrant was completed, the police officers led Mr. Goro to another part of the police detachment, where the officers had set up a staged room. The room was set up to convey an impression that there was a police task force investigating the McAvella homicide, with Mr. Goro as the lead suspect. Signs posted on the wall read “GORO: HOMICIDE TASK FORCE” and “EVIDENCE: GORO’S FINGERPRINTS”. A police artist’s drawing from 1976 was placed on the wall, alongside with Mr. Goro’s photograph and that of the victim’s. Boxes and computers were placed in the room to create the impression of an ongoing investigation.
[14] After Mr. Goro was intentionally led into the staged room and given the opportunity to take in its contents, the police officers acted like a mistake had been made and Mr. Goro was not supposed to have viewed the room. He was then led out of it.
[15] Mr. Goro was then brought into a police interview room and interviewed for nearly six hours.
THE INTERVIEW
[16] The events at the beginning of the police interview are significant to the disposition of this motion.
[17] As I noted above, all of the police interactions with Mr. Goro are recorded. The sequence of events can be tracked precisely.
[18] After the foot impression warrant was completed, the police immediately led Mr. Goro to the staged room described above. Immediately after taking Mr. Goro to the staged room, he was brought to the interview room.
[19] Significantly, Mr. Goro was never told that he was free to leave the police station after the execution of the foot impression warrant. Mr. Goro was never told that he did not have to go anywhere with the police after the warrant was complete. He was not told that participation in the police interview was voluntary. Clearly, it was only the impression warrant that authorized his detention. Mr. Goro was neither detained pursuant to the warrant nor under arrest at the time he was brought into the interview room.
[20] Mr. Goro was not read his right to counsel or cautioned after being brought into the interview room. Indeed, in the police summary of the interview, the author states “GORO had been read his rights to counsel and had contacted counsel prior to the interview taking place.” This appears to refer to the conversation Mr. Goro had with counsel prior to the execution of the foot impression warrant. Mr. Goro was not then aware that the police were intending to interview him following execution of the warrant. Mr. Goro is given a second opportunity to consult counsel about 35 minutes into the interview.
[21] Mr. Goro was interviewed by both Detective Britton and Detective Lawson of the Halton Police in sequence. Detective Britton started the interview, at 10:50 a.m. Det. Lawson took over partway through the interview. The interview concluded at 4:39 p.m. There are several breaks.
[22] The interview mainly consists of lengthy monologues by the police interviewers. The officers go through Mr. Goro’s biography, his past contact with the police, and his relationships. The police advised of the evidence they believed pointed to Mr. Goro’s guilt, including the fingerprints found at the scene of the crime being matched to Mr. Goro and some overstatements of the evidence. The police test several theories of the offence seeking Mr. Goro’s confirmation and admission of responsibility.
[23] Interspersed throughout the interview, Mr. Goro denies all culpability in and any knowledge of the victim or other crime details. He maintains his innocence in very few words. Mr. Goro repeats advice from his lawyer not to speak to the police throughout the interview. There does not appear to be anything resembling an admission of guilt.
[24] At the end of the interview Detective Lawson asks Mr. Goro to take the bible in his right hand and say that he did not kill Mr. McAvella. Mr. Goro protests but then complies. Det. Lawson tells Mr. Goro that he just lied to God and asked what he thinks will happen on judgment day.
[25] The interview ends when the police, for the first time, advise Mr. Goro that he can leave. Mr. Goro terminates the interview and asks to leave immediately once so advised.
THE ISSUE
[26] The sole issue on this motion is whether the Crown has proven beyond a reasonable doubt that Mr. Goro’s 2003 statement to the police in Banff, Alberta was voluntary.
POSITIONS OF THE PARTIES
Crown
[27] The Crown submits that Mr. Goro’s statement should be admitted. The Crown argues that a. The police interview did not involve the use of any threats, promises or inducements as defined in law; b. The police did not use any police trickery or oppressive conduct which could render the accused’s statement involuntary; and, c. At no time was the accused laboring under any condition which deprived him of an operating mind.
[28] The Crown highlights the following to establish that the voluntariness of Mr. Goro’s statement is made out: a. Prior to the interview, Mr. Goro had the opportunity to speak to a lawyer and said he was happy with the advice; b. Mr. Goro said been treated fairly prior to the interview, knew it was about a murder, and had not yet discussed it with other officers; c. He was offered water; d. A biographical discussion occurred; e. Mr. Goro was then accused of the murder and confronted with evidence; f. Mr. Goro was given a second opportunity to speak to counsel and said he was happy with the advice; g. He accepted a bottle of water; h. He was given the opportunity to use the washroom several times; i. After a few hours, Mr. Goro confirmed he was feeling okay, and declined food and water. He said he was being treated all right. He said he had taken his heat medication for the day. Det. Britton told Mr. Goro to tell him if he had had enough or wasn’t being treated properly; j. Later a similar conversation ensued, Mr. Goro said he was tired and nervous; k. Mr. Goro declined a sandwich; l. Mr. Goro was assured his employer did not know why he was with the police; and, m. Det. Lawson said the police will find the person responsible and Mr. Goro can either talk to him about it or leave. Mr. Goro indicates he did not want to talk about it. The police gave him their pager numbers and drove him home.
Defence
[29] The Defence says that the Crown’s application must be dismissed. They argue that Mr. Goro’s statement should be excluded because it was involuntary and because its probative value is outweighed by its prejudicial effect.
[30] Counsel for Mr. Goro conceded that the police did not offer any inducements or threats during the interview. However, they direct me to several other grounds in support of their position that Mr. Goro’s statement should not be admitted into evidence.
[31] First, counsel argued that the failure of the police to inform Mr. Goro that he was free to leave the police station after the foot impression warrant was completed rendered his statement involuntary.
[32] Second, the Defence opposes admissibility on the basis that the police used what has been referred to as the “Reid technique” while interviewing Mr. Goro. The tactics characteristic of the Reid technique have been usefully summarized by Glithero J. in R. v. Barges, [2005] O.J. No. 5595 (S.C.).
[33] The technique in this case consisted primarily of lengthy monologues by the questioning officers theorizing about the case, also immediate and ongoing assertions of Mr. Goro’s guilt and more subtle strategies such as moving physically closer to Mr. Goro as the interview progressed. These monologues were met mostly by short denials or otherwise by Mr. Goro invoking his right to silence. The Defence says this renders the statement involuntary and/or causes its prejudicial effect to outweigh its probative value.
[34] The Defence argues that the officers in this case used virtually all of the Reid technique tactics. The result is that what we have here is a statement that “amounts to much more of a statement by the police than it does to a statement by the accused” (reference: Barges at paragraph 84).
[35] The Defence submits that limited probative value of Mr. Goro’s statement is far outweighed by the prejudicial effect of having the jury hear several hours of the police officers’ theories, opinions, and overstatements of the evidence and the Crown’s case. Justice Glithero observed in Barges that this effectively allows the Crown to have another jury address. The Defence submits that admission of the interview may also result in the jury improperly using Mr. Goro’s lack of meaningful response to the police theories.
[36] In the alternative, the Defence argues that the statement should only be admitted for the purpose of cross-examining Mr. Goro should he choose to testify.
[37] The statement is exculpatory. Mr. Goro denies any knowledge of Mr. McAvella or involvement in the murder. As such, the Defence states that the only reason for admitting the statement in the Crown’s case-in-chief is to demonstrate that Mr. Goro potentially lied. The Defence argues that this would invite the jury to rely on it as circumstantial evidence of guilt contrary to the line of authority from the Court of Appeal for Ontario: R. v. Selvanayagam, 2011 ONCA 602, 281 C.C.C. (3d) 3; R. v. Coutts (1998), 40 O.R. (3d) 198 (C.A.), leave ref’d [1998] S.C.C.A. No. 450.
[38] The Defence notes that in order for a potentially false exculpatory statement by the accused to be led in the Crown’s case-in-chief, the Crown must put forward evidence that the statement was fabricated, independent of evidence that the statement was merely false. Absent independent evidence of fabrication, the false statement of the accused has “no evidentiary value”, is “unfairly prejudicial”, and “could only tend to confuse the trier of fact”: R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5; R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.).
[39] The Defence acknowledges that there is some forensic evidence which provides a basis upon which the jury could find Mr. Goro’s statements that he did not know Mr. McAvella and never attended his apartment were false. However the Defence argues that there is no evidence whatsoever of fabrication and concoction. As such, if admitted, the statement should only be available for cross-examination by the Crown if Mr. Goro chooses to testify.
[40] If admitted, the Defence also submits that the portion of the police interview where Detective Lawson asks Mr. Goro to swear on a bible must be excised. The Defence argues that this portion of the interview carries great risk that the jury will misuse Mr. Goro’s exercise of his right to silence as evidence that he is afraid to swear to his innocence on the bible because it is not the truth. The Defence submits that there is no probative value to this exchange. Accordingly, it ought to be excised from the statement and excluded.
[41] The Defence also submitted that reference to Mr. Goro’s pardoned criminal record, past occurrence reports, and an unrelated homicide investigation wherein Mr. Goro was interviewed must be excised given the strong prejudice with limited probative value.
THE LAW
[42] An accused’s statement to a person in authority is only admissible at his trial if it is proved that the statement was given voluntarily: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 11.
[43] All of the relevant circumstances surrounding the making of the statement must be considered. While the test is objective, the individual characteristics of the accused are relevant in the application of the objective test: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 36.
[44] The Crown bears the burden of proving voluntariness beyond a reasonable doubt: Oickle, at para. 30.
[45] In Spencer, Deschamps J. summarized the applicable law as follows:
11 At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily. This Court set out the test for ascertaining the voluntariness of such statements in Oickle. That case “recast the law relating to the voluntariness of confessions. . . . It rejected resort to fixed and narrow rules”: D. M. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at p. 290. As Iacobucci J. explained in Oickle, at para. 27, the rule “is concerned with voluntariness, broadly understood”. He also emphasized that a contextual approach is required (at para. 47):
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.
12 In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and “should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule” (Oickle, at para. 63). On the other hand, the use of “police . . . trickery” to obtain a confession “is a distinct inquiry . . . [given that] its more specific objective is maintaining the integrity of the criminal justice system” (para. 65).
[46] In R. v. Whittle, [1994] 2 S.C.R 914, a case that pre-dated the Supreme Court’s significant restatement of the law in Oickle, Sopinka J. wrote:
A decision in this case requires a consideration of elements of the confession rule, the right to silence and the right to counsel. While the confession rule and the right to silence originate in the common law, as principles of fundamental justice they have acquired constitutional status under s. 7 of the Charter. The right to counsel is a specific right expressly recognized in s. 10(b) of the Charter. Although each is a distinct right they are interrelated and operate together to provide not only a standard of reliability with respect to evidence obtained from persons suspected of crime who are detained but fairness in the investigatory process. Although the confession rule in its traditional formulation had as its raison d'être the reliability of the confession, a strong undercurrent developed which also supported the rule in part on fairness in the criminal process. See Hebert, supra, per McLachlin J., at p. 171. A common element of all three rules is that the suspect has the right to make a choice.
The preoccupation of the common law and Charter cases in preserving for the suspect the right to choose has been in relation to state action. Did the action of police authorities deprive the suspect of making an effective choice by reason of coercion, trickery or misinformation or the lack of information? [Emphasis added.]
[47] In Oickle, the Supreme Court of Canada confirmed that the Charter expanded the scope of the common law voluntary confessions rule. However, the Charter does not subsume the common law rule. At para. 30, Iacobucci J. wrote:
First, the confessions rule has a broader scope than the Charter. For example, the protections of s. 10 only apply “on arrest or detention”. By contrast, the confessions rule applies whenever a person in authority questions a suspect. Second, the Charter applies a different burden and standard of proof from that under the confessions rule. Under the former, the burden is on the accused to show, on a balance of probabilities, a violation of constitutional rights. Under the latter, the burden is on the prosecution to show beyond a reasonable doubt that the confession was voluntary. Finally, the remedies are different. The Charter excludes evidence obtained in violation of its provisions under s. 24(2) only if admitting the evidence would bring the administration of justice into disrepute: see R. v. Stillman, [1997] 1 S.C.R. 607, R. v. Collins, [1987] 1 S.C.R. 265, and the related jurisprudence. By contrast, a violation of the confessions rule always warrants exclusion.
[48] In Admissibility of Statements, 9th ed. (Toronto: Thomson Reuters Canada, 2016), the Hon. René J. Marin writes the following, at §8.140:
The onus is clearly upon the Crown to satisfy the court that a statement was voluntary and that it was taken without threats, promises or inducements. This raises the question of the meaning of “voluntary”. The word may have different applications at different stages of an investigation. During the voir dire, the court will consider the stage of the investigation at which the statement was made, weighing carefully the circumstances or pressures on the person which caused him to speak. When the statement was made is often vital and is most important in the court’s view. Dictionary definitions of the word “voluntary” include “willing, free, unconstrained, proceeding from choice of free will”. The Crown must satisfy the Court that these elements were present at the time of the taking of the statement.
ANALYSIS
[49] For the following reasons, I am satisfied that Mr. Goro’s 2003 statement was not given voluntarily and it must be excluded from evidence at his trial.
[50] First, as I noted above, there is no issue that the statement was given to persons in authority.
[51] Second, there is no issue whether there is a sufficient record: see R. v. Moore-McFarlane (2001), 56 O.R. (3d) 737 (C.A.), at para. 65; R. v. Menezes (2001), 48 C.R. (5th) 163 (Ont. S.C.); R. v. Bou-Chahine, 2013 ONSC 6355, at para. 18-28; R. v. Williams, 2013 ONSC 1399, at paras. 76-77. As I noted above, the police took steps to ensure that every moment of their interaction with Mr. Goro was recorded. This was very helpful to the court.
[52] However, despite their diligence in recording their interactions with Mr. Goro, the police made one procedural error fatal to this Application.
[53] After the police finished the execution of the foot impression warrant, they understandably wanted to interview Mr. Goro about the murder. They lead him through the staged room and into the police interrogation room without informing him that he was no longer legally obligated to remain with them at the police station.
[54] Though the warrant for Mr. Goro’s detention was not entered into evidence before me, the testimony from the witnesses on the voir dire was that the warrant was for the taking of the foot impressions. The warrant was spent once that procedure was completed. Mr. Goro’s detention was authorized for the taking of the impressions. Once that task was completed there was no longer any basis for his detention. He was free to go. However, the police failed to convey this critical fact to Mr. Goro.
[55] The police did not tell Mr. Goro that his liberty interest had changed. Clearly, it had. They did not tell him that it was entirely up to him whether or not he wished to participate in a police interview, or indeed, to even go with them to a different part of the police station where the staged room was located. Mr. Goro was not re-cautioned. He was not provided a further opportunity to speak to counsel until 35 minutes into the interview. He then remained in the interview room for many hours.
[56] The position of the police and Crown was that there was no obligation to caution Mr. Goro prior to the commencement of the interview or to tell him specifically that he was free to leave given there was no change in his jeopardy from when Mr. Goro was initially arrested pursuant to the impression warrant. They argue that Mr. Goro at all times remained the subject of a murder investigation and he was aware of this. As such, there was no change in jeopardy. While it is arguable whether there was any change in jeopardy, there was a change in Mr. Goro’s liberty interest after completion of the impression warrant that the police failed to address and should have.
[57] This issue does not fit neatly within the established voluntariness jurisprudence from Oickle and other cases. As Defence counsel notes, there were no inducements or threats in the conventional sense. There is no suggestion that Mr. Goro did not have an operating mind at the time the statements were given. Although the police deployed the staged room tactic in this case, I do not think that conduct meets the “shock the community” test described in Oickle.
[58] However, it is evident that Mr. Goro’s statement was not voluntary in the way that word is described by Justice Marin in his text, excerpted above. Mr. Goro’s statement cannot be said to have been “willing, free, unconstrained, proceeding from choice of free will”. As Iacobucci J. noted in Oickle, “the confessions rule … is concerned with voluntariness, broadly understood” (at para. 27). The police acted and proceeded in a manner such that they were in control of Mr. Goro’s movements. They orchestrated a set of circumstances whereby Mr. Goro remained under their control.
[59] Voluntariness has to be analyzed contextually with consideration to the overall circumstances of the narrative, including those of Mr. Goro. The narrative here starts with the arrest of Mr. Goro on the side of the road outside of his place of employment without any prior involvement in this investigation to his knowledge or notice that the police would be attending. He is placed into a police vehicle, transported to the police station and immediately thrown into a murder investigation. In my view, this would have been a significant jolt to even the most hearty. Although he has past involvement with the criminal justice system, I would not describe Mr. Goro as a sophisticated or hardened individual. The interview was convened immediately on the heels of the foot impression warrant and in the police station being a place of obvious authority over which the police exercised control.
[60] It is clear that Mr. Goro remained detained after the detention authorized by the warrant expired, as that concept was explained by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The Court explained the principles underpinning the s.9 Charter right to be free from arbitrary detention as follows:
[20] The purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference. As recognized by this Court in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, “liberty”, for Charter purposes, is not “restricted to mere freedom from physical restraint”, but encompasses a broader entitlement “to make decisions of fundamental importance free from state interference” (para. 49). Thus, s. 9 guards not only against unjustified state intrusions upon physical liberty, but also against incursions on mental liberty by prohibiting the coercive pressures of detention and imprisonment from being applied to people without adequate justification. The detainee’s interest in being able to make an informed choice whether to walk away or speak to the police is unaffected by the manner in which the detention is brought about.
[21] More specifically, an individual confronted by state authority ordinarily has the option to choose simply to walk away: R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.), at p. 94; Dedman v. The Queen, [1985] 2 S.C.R. 2, at p. 11, citing Martin J.A. in the Ontario Court of Appeal ((1981), 32 O.R. (2d) 641, at p. 653):
Although a police officer may approach a person on the street and ask him questions, if the person refuses to answer the police officer must allow him to proceed on his way, unless . . . [he] arrests him . . . .
See also Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 131. Where this choice has been removed — whether by physical or psychological compulsion — the individual is detained. Section 9 guarantees that the state’s ability to interfere with personal autonomy will not be exercised arbitrarily. Once detained, the individual’s choice whether to speak to the authorities remains, and is protected by the s. 10 informational requirements and the s. 7 right to silence.
[22] “Detention” also identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. These rights are engaged by the vulnerable position of the person who has been taken into the effective control of the state authorities. They are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination. They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty. … [Emphasis added.]
[61] As the Supreme Court noted in Grant, “[i]n those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go.” That did not happen in this case.
[62] As noted above, the narrative here starts with the arrest of Mr. Goro on the side of the road outside of his place of employment without any prior involvement in this investigation or notice then transported to the police station and immediately thrown into a murder investigation. He provides the foot impression as directed by the police further to the warrant. He is then taken by the police to an interview room and questioned. How was Mr. Goro to understand there was a choice available to him in this context and in the absence of the police advising that he was free to leave or stay?
[63] Mr. Goro did not waive his rights to be free from arbitrary detention. He was not given an opportunity to do so arising from the failure of the police to tell him he was free to leave following the execution of the impression warrant.
[64] This conclusion is made all the more clear when I consider the fact that Mr. Goro immediately stated he wanted to leave the police station and did so at the first moment he was given that opportunity. After Mr. Goro had been at the police station for most of the day, and in the interview room for the better part of six hours, Detective Lawson asked him for the first time whether or not he wanted to leave and go home. Mr. Goro immediately stated that he wanted to leave and that he did not want to speak to the police any more. The police then drove Mr. Goro back to his place of employment.
[65] In the words of Sopinka J. in Whittle, the actions of police authorities deprived Mr. Goro of making an effective choice by failing to tell him that he was not required to stay with the police after the impression warrant was executed. This missing information was fundamental to Mr. Goro being able to perform the necessary analysis and exercise his free will one way or the other. Again, I note that once he knew this information Mr. Goro acted upon it immediately.
[66] In the context of this narrative, the police were required to tell Mr. Goro that he did not have to stay at the police station for an interview if he did not want to. Without that information, his free will was usurped. This issue is at the core of the voluntariness analysis. Mr. Goro’s statement was not voluntary because he was not told and he was not otherwise aware that he did not have to stay to talk to the police.
[67] Moreover, in R. v. Evans, [1991] 1 S.C.R. 869, the Supreme Court of Canada explained that “the police must restate the accused's right to counsel when there is a fundamental and discrete change in the purpose of the investigation”.
[68] In my view, the purpose of the investigation changed when the warrant was complete and Mr. Goro was brought to the interview room for the police to question him. The purpose changed to one where the police were questioning Mr. Goro about the details of the murder with the objective of obtaining a statement from Mr. Goro. The police were required to caution Mr. Goro and give him the opportunity to speak to counsel. They did not give him an opportunity to speak to counsel for 35 minutes, during which substantive issues regarding the investigation were discussed.
[69] Mr. Goro was permitted to speak with counsel 35 minutes into the interview and subsequently. However, the advice of counsel was fatally undermined by the fact that Mr. Goro was not told he was free to leave at any time thereby preventing Mr. Goro from having the opportunity for legal advice in that context. There could be no effective counsel where that critical information was not available to Mr. Goro’s counsel and missing from the analysis/advice he was otherwise provided.
[70] Ultimately, the question is whether Mr. Goro exercised free will by making a statement. I conclude he did not for all of the reasons detailed above.
[71] Given my conclusion, it is unnecessary to address the Defence’s alternative arguments, including their arguments in relation to the Reid technique.
RESULT
[72] The Crown has not proven beyond a reasonable doubt that Mr. Goro’s 2003 statement to the police was made voluntarily. It is not admissible in evidence at his trial for any purpose, including cross-examination should Mr. Goro choose to testify.
Fitzpatrick J.