COURT FILE NO.: Crim J(P) 1156/15 DATE: 20170228

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – JACQUELINE SIMONE Defendant

Counsel: S. Aujla for the Crown D. Paradkar and C. Tarach for the Defendant

HEARD: February 13, 14 and 15, 2017

RULING ON PRETRIAL MOTIONS

Ricchetti J.

OVERVIEW

[1] Ms. Simone was charged as follows:

a) Attempting to export cocaine on November 7, 2013;

b) Possession of cocaine for the purpose of exporting on November 7, 2013; and

c) Conspiring with named and unnamed persons to export cocaine between September 23, 2013 and November 7, 2013.

[2] Ms. Simone was arrested on November 7, 2013. After her arrest, Ms. Simone made a number of statements to the police:

a) After her arrest, in the police cruiser on the way to the police station;

b) During a videotaped interview; and

c) After the videotaped interview.

[3] The Crown sought a ruling on the admissibility of Ms. Simone’s statements.

[4] The Defence brought an application to exclude all statements by Ms. Simone alleging that Ms. Simone’s Charter rights were violated.

[5] Counsel agreed to a blended voir dire.

[6] On the voir dire, the following persons testified:

a) Retired RCMP Officer Bonnin;

b) RCMP Officer Seabourne;

c) RCMP Corporal Daize;

d) RCMP Corporal Doyle; and

e) RCMP Officer MacLeod.

[7] Ms. Simone did not testify on the voir dire.

[8] After submissions were made by counsel, this court ruled that Ms. Simone’s statements on November 7, 2013 were admissible. Counsel were advised that written reasons would follow. These are those reasons.

THE FACTS

[9] Prior to November 1, 2013, the police in Canada and the United Kingdom had an ongoing drug investigation involving Mr. Chrestopher Barrett. The police believed that Mr. Barrett was the organizer for a drug exporting organization.

[10] On November 1, 2013, the police observed Mr. Barrett enter Gill Travel Agency. Mr. Barrett left a short time later. The police entered the Gill Travel Agency after Mr. Barrett left and discovered that Mr. Barrett had purchased two airline tickets, one for Jacqueline Simone, departing on November 7, 2013 at 8:15 a.m. to the United Kingdom.

[11] On November 4, 2013 the police observed a bag exchange between Sami Madouini (sp) and Mr. Barrett.

[12] On November 6, 2013, Mr. Barrett again met Mr. Madouini. The police believed that Mr. Madouini was a recruiter for the drug operations. During this second encounter, the police observed that Ms. Simone was in Mr. Madouini’s vehicle.

[13] On November 7, 2013, the police observed Mr. Barrett leave his home in Ajax at 4:45 a.m. Mr. Barrett placed an object in his trunk.

[14] Mr. Barrett drove to a Tim Horton’s coffee shop. Ms. Simone was picked up by Mr. Barrett. Ms. Simone did not appear to have a suitcase with her when picked up by Mr. Barrett. Mr. Barrett drove to Terminal 1 Pearson Airport. After parking his vehicle, Mr. Barrett got the suitcase out of his trunk. Mr. Barrett and Ms. Simone went to the check in, Mr. Barrett pulling the suitcase. When they arrived to check in the bag, Mr. Barrett gave the suitcase to Ms. Simone, who proceeded to the baggage check in.

[15] After Ms. Simone checked in the suitcase, she waved to Mr. Barrett. Mr. Barrett left the airport. Ms. Simone proceeded into the secured area for travel passengers. Ms. Simone proceeded to change the clothing that she was wearing. The police continued surveillance of Ms. Simone but they eventually lost her.

[16] The police learned that Ms. Simone had not gotten onto the flight to the United Kingdom. The police had a cell phone number for Ms. Simone but did not have an address for her. The police tracked Ms. Simone’s general whereabouts through her cell phone.

[17] The police executed a warrant to retrieve and examine the suitcase that Ms. Simone had checked in. The police found 9 bricks of cocaine wrapped in clothing weighing just short of 9 kilograms.

[18] The police decided to call Ms. Simone and negotiate her surrender. Officer Doyle called Ms. Simone, identified himself as a police officer. Officer Doyle used an RCMP phone which blocks the caller’s telephone number. He told Ms. Simone that they needed to meet. Ms. Simone was scared and nervous. Officer Doyle didn’t believe that Ms. Simone was surprised about his call. She appeared to question whether he was a real police officer. Ms. Simone told Officer Doyle what she would be wearing. After a second call, it was agreed that Ms. Simone would meet near a Mac’s Milk and the police officers would be wearing clothes identifying them as police.

[19] During these telephone calls, Officer Doyle said: “we can do this the easy way”; if she didn’t come in, the police would get a warrant for her arrest; the police needed to see her; she could meet them at the detachment offices; if she wasn’t at the Mac’s Milk in five minutes, they would get a warrant for her arrest; the police needed to talk about what she did; this was not going to go away.

[20] The police met Ms. Simone at the designated place. Ms. Simone was arrested at approximately 2:28 p.m. She wanted to call her father. She was told that she was being arrested for import/export drugs, possession of drugs and possession of drugs for the purpose of trafficking. Ms. Simone was upset. She was placed in the police cruiser.

[21] Officer Doyle read Ms. Simone her Charter rights and Caution. He read from the police issued card in his police notebook. Ms. Simone indicated she understood her rights and caution. Ms. Simone stated she wanted to speak with a lawyer.

[22] While on the way to the police station, Ms. Simone was very upset. Without any questions by the police officers, Ms. Simone made a number of spontaneous statements. Officer Doyle repeated the caution in plain language that anything she said could be used in court. Ms. Simone repeated that she understood. The statements by Ms. Simone included a statement that “I had a bad feeling, it was my first time”. Officer Doyle continued to repeat the caution to Ms. Simone.

[23] During the transport to the police station, Officer Bonnin asked Ms. Simone if she was on any medication. Ms. Simone said that she needs a puffer at night.

[24] When Ms. Simone arrived at the police station at approximately 3:15 p.m., she was transferred to Officer Heather MacLeod for processing. Officer Seabourne was tasked to assist Officer MacLeod. Ms. Simone was patted down for police safety. Ms. Simone’s boots were removed for possible safety issues. Ms. Simone remained without shoes/boots for the balance of her time at the police station.

[25] At 3:39 p.m., the police called duty counsel. When duty counsel called back, at 3:55 p.m., Ms. Simone was taken to the interview room to privately speak with duty counsel on the phone. The telephone call lasted until 4:12 p.m. – 16 minutes.

[26] After Ms. Simone had spoken with duty counsel and gone to the washroom, she was placed in the interview room. Ms. Simone remained upset, she was crying at times.

[27] Prior to the interview, there was no questioning of Ms. Simone regarding the investigation. While Ms. Simone was upset during this time, she did not complain about any mistreatment, being cold, without shoes or make any other complaint.

[28] Ms. Simone’s interview was conducted by Officer Doyle. The entire interview was videotaped. The interview lasted approximately one hour. There is no doubt that Ms. Simone was upset during the interview.

[29] At the commencement of the interview, Officer Doyle confirmed that Ms. Simone was satisfied with the legal counsel she had received. Officer Doyle provided a Secondary Caution. Ms. Simone was again told that the interview was being recorded and that anything she said could be used as evidence in court. Officer Doyle told Ms. Simone that these were very serious charges.

[30] Despite being upset, Ms. Simone:

a) understood Officer Doyle’s questions and responded appropriately. When she didn’t understand a question she asked for an explanation (see page 1);

b) understood that the legal advice from duty counsel was not to speak with the police. She also understood that what she said could be used against her and that what she was saying to Officer Doyle was contrary to the legal advice she received.

c) said a number of times that she didn’t know what to do (follow duty counsel’s advice or answer Officer Doyle’s questions). Officer Doyle, early in the interview, told Ms. Simone that she had “every right to talk to a lawyer and take the advice of that lawyer”.

d) repeatedly acknowledged that the police were not “her friend”;

e) at one point, she offered to help the police but understood that she needed something “in writing” to ensure she could go home (see page 5 of the transcript).

f) repeatedly said she wanted to go home. Equally clear is that Officer Doyle repeatedly told Ms. Simone that she was not going to go home that evening but would have to go to a bail hearing. The Defence submission that Officer Doyle was equivocal on page 5 of the transcript fails to consider the entire interview. When one considers the entire interview, it was clear to Ms. Simone that she was not going home. It is interesting to note that at the end of the section referred to by Defence counsel regarding going the possibility of going home “tomorrow”, Ms. Simone says to Officer Doyle that she wanted something in writing. Even Ms. Simone knew that Officer Doyle had not promised that she could go home the next day after a bail hearing unless she told them what had happened and got it in writing.

[31] During the interview, Officer Daize came into the interview room with a photo array. Ms. Simone was still upset. Ms. Simone reviewed the photos and initialled each one. Ms. Simone recognized one photo who she said was “Big”, the black person that she had seen in the morning.

[32] At 5:14 p.m., after the completion of the interview, Ms. Simone was returned to the cell area. Ms. Simone remained upset. She was lying down crying but calmed down after a short time.

[33] At 5:49 p.m. Ms. Simone was taken for fingerprinting. Ms. Simone said that she was feeling lightheaded and nauseous. Officer MacLeod asked Ms. Simone what her address was. Ms. Simone provided her address in Meadowvale and stated that her roommate was Sarah Madouini (sp). She asked the officer to tell her roommate to call her father.

[34] While in her cell after the interview, Ms. Simone asked the police officer for her inhaler that was at her home. At 6:41 p.m., the police officers took Ms. Simone to the hospital. The hospital provided an inhaler to Ms. Simone.

[35] Later that evening, Officer Doyle executed a warrant on Mr. Barrett’s vehicle. The police discovered a key chain with the name “Biggz” and a copy of the flight itinerary for Ms. Simone on the November 7, 2013 flight.

[36] Throughout all the dealings with the police, there were no threats, promises, inducements made to encourage Ms. Simone to make any statements to the police.

CREDIBILITY

[37] The Defence submits that this court should reject the evidence of Officers Doyle and MacLeod. This court does not accept this submission. The very few shortcomings in their evidence pointed out by the Defence were minor instances where the officers did not remember details which occurred 3 ½ years ago. On the central factual essence of their evidence remained firm and consistent on what happened, was consistent with their notes, consistent with the evidence of other officers, and with the videotaped interactions.

VOLUNTARINESS

The Law

[38] The onus is on the Crown to prove beyond a reasonable doubt that Ms. Simone’s statements were voluntarily made.

[39] The test for voluntariness is summarized in Sydney N. Lederman, Alan W. Bryant, Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis, 2014), at p. 453:

Reduced to its essentials, the voluntariness inquiry focuses predominantly, though not exclusively, on the ability of the accused to make a meaningful choice whether or not to confess. All the surrounding circumstances, including the accused's mental state, are considered in evaluating whether the conduct of the authorities deprived the suspect of making a meaningful choice by reason of threats, inducements, oppression, coercion, trickery, misinformation, or other abuse. Causation, which was a component of the traditional Ibrahim rule, thus remains relevant in analyzing the relationship between the police conduct and the resulting confession under the modern confession rule.

[40] An excellent summary of the authorities on voluntariness was set out by Justice Fairburn in R. v Brown, 2015 ONSC 3305:

Legal Analysis

The Common Law Confessions Rule: The Test for Voluntariness

[83] The primary reason for the confessions rule lies in the well supported concern over false confessions which can and do spawn wrongful convictions: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paras. 29-30 ([Singh]); R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 32, 47 ([Oickle]); R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739, at para. 74 ([L.T.H.]). People confess to crimes for all manner of reasons, even innocent people: R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at paras. 6-8 ([Hart]). Having regard to the risk of false confessions, jurisprudential rules have evolved that endeavor to weed out statements that are made in circumstances that render their voluntariness and, therefore, their reliability, suspect: Singh, at para. 29. As noted by Moldaver J. in Hart, at para. 6:

Unreliable confessions present a unique danger. They provide compelling evidence of guilt and present a clear and straightforward path to conviction. Certainly in the case of conventional confessions, triers of fact have difficulty accepting that an innocent person would confess to a crime he did not commit. And yet our experience with wrongful convictions shows that innocent people can, and do, falsely confess. Unreliable confessions have been responsible for wrongful convictions -- a fact we cannot ignore.

[84] Owing to the concern about unreliable confessions, strong common law rules have developed to assess voluntariness. Indeed, so strong are the common law voluntariness rules that, when it comes to statements made to those in authority, the common law rules arguably provide a more muscular protection to accused people than the Charter right to remain silent.

[85] For instance, the common law voluntariness rule requires that the Crown prove voluntariness beyond a reasonable doubt. Unlike the voluntariness rule, the Charter claimant bears the onus of proof (albeit on a balance of probabilities): Singh, at paras. 24-25, 39; R. v. Hodgson, [1998] 2 S.C.R. 449, [1998] S.C.J. No. 66, at paras. 34-38 ([Hodgson]); Hart, at para. 72; Oickle, at paras. 30, 68, 71. Unlike the voluntariness rule, the right to silence is only triggered upon arrest or detention. Unlike the voluntariness rule which results in the automatic exclusion of involuntary statements, if the Charter claimant succeeds in establishing a Charter breach, the statement will only be excluded where the Charter claimant also succeeds in establishing on a balance of probabilities that admission of the evidence at trial would bring the administration of justice into disrepute. See: Oickle, at para. 30; Singh, at paras. 35, 39.

[86] By contrasting the common law voluntariness rule with the Charter right to silence, one gets a sense of the sheer strength of the voluntariness rule. With that said, it does not mean that the voluntariness rule is an insurmountable or even near insurmountable hurdle for the Crown to get over. To the contrary, and as noted by Binnie J. in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 93 ([Sinclair]), in dissent, but not on this point, the approach to the voluntariness rule as set out in Oickle is “rightly seen as setting a high barrier to exclusion”.

[87] The contemporary voluntariness or confessions rule attempts to strike a balance between the interests of the accused and society in avoiding false confessions, while at the same time ensuring that the societal interest in the effective investigation of crime is met. As noted by Iacobucci J. in Oickle, at para. 33: “All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of either of these objectives.” See also: Singh, at para. 45.

[88] Both the constitutional right to silence and the common law voluntariness rule permit a certain amount of police persistence and persuasion in obtaining a statement: R. v. Hebert, [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, at paras. 73, 110, 130 ([Hebert]). While an individual has a right to remain silent, she does not have a right not to be spoken to by the police: Singh, at para. 28. Police persistence, and attempts to persuade an individual to speak, will not automatically transgress the s. 7 right to silence or the voluntariness rule. Indeed, Mr. Singh asserted his right to silence on 18 occasions, followed each time by further questions by the police and attempts to persuade him to speak. The majority concluded that this did not breach his right to silence or, as he conceded at trial, the voluntariness rule.

[89] Oickle instructs that a contextual approach is to be taken to assessing the voluntariness of a statement. Where relevant, there are two stages to the inquiry. The first involves assessing whether there have been inducements, such as promises or threats, sufficient to overcome the will of the accused: Oickle, at para. 57. At this stage, the court also looks to whether the individual has an “operating mind” and whether there has been an atmosphere of oppression created by the police, sufficient to cast doubt on the voluntariness of the statement.

[90] At the second stage, and where relevant, the court assesses whether police trickery was used in obtaining the statement and, if so, whether the trick or tricks were sufficient to shock the conscience of the community: Oickle, at paras. 65-67.

[91] As for threats and promises, they are classic inducements and it is from these facts that much of the jurisprudence evolves. The “classic” inducement involves a promise of leniency in respect of whatever conundrum the individual is facing. A promise to reduce a charge or sentence in exchange for a confession raises a question about voluntariness. As noted by Iacbucci J., explicit offers by the police to “procure lenient treatment in return for a confession” is a “very strong inducement, and will warrant exclusion in all but exceptional circumstances”: Oickle, at para. 49. Offering lenient treatment to loved ones can also create a strong inducement, sufficient to render a statement involuntary: Oickle, at para. 52.

[92] While statements by the police like “it would be better if you told” can raise concerns about voluntariness, they do not require exclusion. In all cases, the trial judge is duty bound to examine the entire contents of the statement and ask whether there exists a doubt about its voluntariness: Oickle, at paras. 54, 57; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 13-15, 19 ([Spencer]).

[93] In the end, and of critical importance, the law allows police officers to offer inducements. Indeed, the jurisprudence has long recognized the importance of the police doing so in pursuit of solving crime. The voluntariness doctrine is not to be applied in a way that precludes this important investigative technique. As noted in Oickle, “[f]ew suspects will spontaneously confess to a crime”: at para. 57.

[94] The police are not required to be mute in an interview, waiting for an accused to extemporaneously decide to say something. To the contrary, the police are permitted to encourage, persuade and convince a suspect to speak. They can even try to persuade a suspect that it would be in his or her interests to confess. Indeed, in Oickle, Iacobucci J. commented on the fact that in the “vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess”: Oickle, at para. 57. In applying a contextual approach, it is important to remember that the police can speak in an accusatorial and persistent manner: R. v. N.L., [2009] O.J. No. 1902, 87 W.C.B. (2d) 277 (S.C.J.), at para. 30 ([N.L.]); Oickle, at paras. 2, 57; R. v. Godday, at para. 53.

[95] What the police cannot do is offer inducements, either through the form of threats or promises, that are “strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”: Oickle, at para. 57. See also: Spencer, at paras. 17, 19. This is often referred to as the quid pro quo. Deschamps J. summarized this approach in Spencer, at para. 15, where she held:

… while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement.

As such, it is important to look for a quid pro quo, but to always remember that the existence of one only begins and does not end the inquiry into voluntariness which requires an assessment into the entire context of the police/suspect interaction: Spencer, at para. 15; R. v. M.S.M., at para. 9 ([M.S.M.]); R. v. Belle, at para. 40 ([Belle]); Oickle, at paras. 47, 57.

[96] Importantly, there are times that the police will be speaking the truth to a subject and that truth may be perceived as a strong inducement. For instance, in R. v. Backhouse, [2005] O.J. No. 754, 195 O.A.C. 80 ([Backhouse]), the police told Mr. Backhouse that if he provided an alibi, and it could be confirmed, that he would be released. As noted by Rosenberg J.A., the statement to Mr. Backhouse was an “accurate appraisal of the circumstances”. It would be an “odd result if the police could not invite a suspect, who was protesting his innocence and willing to speak to the police, to provide an alibi that could clear him of liability”: Backhouse, at para. 121.

[97] Doherty J.A.’s comments in R. v. Teske, [2005] O.J. No. 3759 (C.A.), 202 O.A.C. 239, at para. 73, provide a similar statement of principle. The police informed Mr. Teske that if he told them what happened, and he was arrested, then there would be no need to have the CAS remove his children from their home. While he gave a statement following this information having been provided, the police could not be criticized for having apprised him of their planned course of action. Quoting from Rosenberg J.A. in Backhouse, Doherty J.A. found that it was an “accurate appraisal of the circumstances”: Teske, at para. 76.

[98] As for oppression, in certain circumstances, it has the potential to inspire a false confession. R. v. Hoilett, [1999] O.J. No. 2358, 121 O.A.C. 391 is often cited as the classic example of oppressive circumstances. Among other things, Mr. Hoilett was under the influence of crack cocaine and alcohol when brought into custody. He was stripped naked and left in a cold cell with only a metal bunk for over an hour. He was then given light clothes to put on. His interview started at 3:00 a.m. He fell asleep five times in the interview. He asked for warmer clothes and a tissue to wipe his nose. Both were refused. These were described by the Court of Appeal as inhumane conditions under which there was little surprise he confessed.

[99] While not an exhaustive list, the types of things to consider when determining whether the circumstances surrounding the taking of a statement have been oppressive include: a lack of food, water, clothing, sleep, medical attention, counsel, aggressive questioning, intimidating and prolonged questioning, and so on: Oickle, paras. 59-60. See also: N.L., at para. 30.

[100] In terms of an operating mind, the court’s focus should be on whether the accused is aware of what he is saying and that he is saying it to the police who can use it against him and to his detriment: R. v. Whittle, [1994] S.C.J. No. 69, [1994] 2 S.C.R. 914, at para. 49.

[101] As for the second line of inquiry, the court also looks to whether there has been any police trickery used in obtaining a statement. This question concerns itself with preserving the integrity of the administration of justice. There is nothing wrong with the police tricking an accused. It only crosses the line from voluntariness to involuntariness where the police conduct might shock the community. As noted by Lamer J. (as he then was) in R. v. Rothman, [1981] S.C.J. No. 55, [1981] 1 S.C.R. 640, at para. 127 ([Rothman]):

It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community.

[102] The classic example that is used to amplify upon this prong of the voluntariness doctrine is Lamer J.’s (as he then was) reference to a police officer pretending to be a chaplain or legal aid lawyer: Rothman, at para. 127; Oickle, at paras. 65-66.

[103] In the end, the trial judge must look to all of the circumstances and the entire context in which the statement was given to determine its voluntariness. Justice Iacobucci summed up the trial judge’s task in Oickle when he said:

… a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness … [at para. 71].

[104] One of the circumstances to consider is whether the individual has received a caution: R. v. E.B., at para. 88; Singh, at para. 31. While the absence of a caution will not render a statement involuntary, its presence will not transform the statement into a voluntary one. It is just one factor to consider in the entire context.

[41] I add one further comment on the law. In R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 the Supreme Court at para 43 quoted with approval the following statement by Justice Hackett:

Although the right to counsel and right to silence are equally important rights, it does not follow that they will be protected in the same way as suggested in Guimond. The right to silence, by its very nature, is exercised differently than the right to counsel and in this respect, the right to silence and right to counsel are not the same. The exercise of the right to silence is within the control of an accused who has an operating mind and is fully informed of his or her rights, provided the conduct of the authorities do not take away his or her ability to choose. In contrast, the exercise of the right to counsel is not within the control of an accused in detention. Rather, it is dependant upon the police facilitating the exercise of that right. Consequently, it is clear that the police cannot continue to question an accused who asserts his or her right to counsel until they have helped him or her exercise that right. The “holding off” requirement in the case of the right to counsel is therefore not necessary in the case of the right to silence because the law recognizes an accused’s free will and the ability of an accused to change his or her mind about whether or not to speak to the police. This change of mind can occur either as a result of personal reasons, or police persuasion that does not violate principles of fundamental justice or deprive the accused of choice.

(R. v. C.G., [2004] O.J. No. 229 (QL) (C.J.), at para. 93)

Defence Issues

[42] The Defence raised a number of issues regarding the voluntariness of Ms. Simone’s statements.

[43] It was suggested, in cross-examination, that Officer MacLeod had promised “if you do good” you will go home. Ms. Simone suggests this at page 7 of the transcript of the interview. Officer MacLeod strongly denied that she had made such a statement to Ms. Simone. Further, it appears from Ms. Simone’s own words that “if I follow...that’s what she said”. As stated above, Ms. Simone did not testify. This court is satisfied, on the evidence in this voir dire, beyond a reasonable doubt that no such statement was made by Officer MacLeod. In any event, it was clear from Officer Doyle after this statement by Ms. Simone that he doubted that such a promise was made and that he could not promise Ms. Simone anything. In addition, it is clear that every time Ms. Simone said she wanted to go home, Officer Doyle made it clear that Ms. Simone was not going home that evening. I reject the submission that Officer MacLeod made an inducement as suggested by the Defence.

[44] The Defence suggests some impropriety in Officer Doyle’s failure to prevent Ms. Simone from telling him what legal advice she had received from duty counsel. First, the privilege is that of the client, Ms. Simone. The right to silence is that of Ms. Simone. If she has an operating mind and chooses to voluntarily tell Officer Doyle what legal advice she received, provided Officer Doyle did nothing to encourage or demand such disclosure, Ms. Simone is free to tell Officer Doyle the legal advice. Secondly, the only disclosure by Ms. Simone was that the legal aid counsel told her not to speak to police. This would hardly come as a surprise to Officer Doyle or confer some advantage to the police during the interview. Thirdly, Officer Doyle did nothing with this disclosure. This issue has no merit.

[45] The Defence takes issue the police took Ms. Simone’s boots during processing and did not return them prior to the interview. This court is satisfied that the police have a discretion to remove a detainee’s footwear for the safety of both the police and the detainee. They exercised that discretion in this case. Ms. Simone never said she was in any discomfort or cold in not having her boots or other footwear. At one point she does make a statement that the police took her shoes but does not say that she was cold or uncomfortable. Ms. Simone’s statement appeared to be Ms. Simone telling Officer Doyle of an indignity she felt because the police had taken her shoes.

[46] The Defence raises the failure of the police to have a full and complete record pointing to the cell area processing and the time prior to and after Ms. Simone spoke with duty counsel. There is no doubt that the police did not record the entire time that Ms. Simone was at the police station. However, the officers present testified, they had considerably detailed notes and there is no evidence that anything occurred during the unrecorded time period that was a promise, inducement or threat. In these circumstances, the unrecorded time period does not raise a reasonable doubt.

[47] The Defence suggests that when Ms. Simone said on a number of occasions that she didn’t know what to do (i.e. follow duty counsel’s advice or speak with Officer Doyle) the police failed to give Ms. Simone a further opportunity to speak with duty counsel. The difficulty with this argument is that Ms. Simone never asked to speak with counsel again. It was Ms. Simone’s choice to waive her right to silence and answer Officer Doyle’s questions. A similar argument was raised in R. v. Mohamad, 2014 ONSC 1348 and the court concluded at paragraph 22 that there was no obligation to a further opportunity to speak with counsel, the real issue being the detainee’s choice to waive her right to silence. That is the same situation in the case at bar.

[48] The Defence takes some issue with the personal search of Ms. Simone. There was a pat down search. It was done by Officer MacLeod. Officer Seabourne was present. Both are female. There is no doubt any search, including a pat down search over clothes, can be personally intrusive. As Ms. Simone was taken into a secure area, the pat down safety was necessary, reasonable and properly performed by the police officer. The Defence submits that the pat down search was done in a non-private area. There are two problems with this. First, we don’t know if Ms. Simone knew that it was a non-locked area where anyone could have entered. Secondly, only the two female officers were present and there is no evidence anyone else walked into the room during the pat down search. This issue has no merit.

[49] The Defence takes issue with respect to the request for Ms. Simone’s inhaler. This court does not consider this as relevant given the manner that the police dealt with the issue. First, Ms. Simone said she needed the inhaler at night. It was approximately 6:00 p.m. when she asked for her inhaler. Second, the inhaler was at her home in Meadowvale whereas she was in the police station in Bowmanville. The time to retrieve her inhaler from home would take a considerable time. The police acted reasonably promptly in taking Ms. Simone to the hospital after she requested – the elapsed time was only 23 minutes. There is no evidence Ms. Simone was in distress during those 23 minutes – in fact, Ms. Simone was seen during and near the end of the interview asking for cigarettes. Lastly, there is no evidence that Ms. Simone needed or used the inhaler that evening.

[50] Ms. Simone repeatedly asked to call her father. The police have no obligation to accommodate this request. The police accommodated this request after the interview to facilitate Ms. Simone’s bail hearing the next day. The police have a legitimate and reasonable basis for delaying or denying a call to someone other than legal counsel as the third party might compromise the ongoing investigation or the destruction of evidence or alerting other co-conspirators. In this case, the police were active and arrested Mr. Barrett later that evening and executed a search warrant at Mr. Barrett’s home.

[51] The Defence points to the statement made by Ms. Simone, after Officer Doyle provided her with a Secondary Caution, of “Fear right now”. It is speculative as to what Ms. Simone was referring to. Clearly, Ms. Simone wanted to go home; this was a new experience for her. I have no doubt that she was frightened. However, when Ms. Simone made this statement she did not appear to be in fear of the police or of speaking with Officer Doyle. What is fundamental is that this “fear” was not something caused or contributed by the police officers’ conduct or statements. Furthermore, the remainder of the interview continued to show that Ms. Simone had an operating mind causing her to decide whether to answer Officer Doyle’s questions and what to say.

[52] The Defence submits that the police made a threat to Ms. Simone about getting a warrant if she did not meet them. I disagree. The police were just stating what would happen if she didn’t meet them. It was a factual statement. There is no doubt that the police had reasonable and probable grounds at that time to arrest Ms. Simone. The police didn’t know where she was but had her telephone number. I see nothing untoward about the police actions or how this could possibly have affected the subsequent statements made by Ms. Simone.

[53] The Defence also points to the lack of a Secondary Caution when Ms. Simone was arrested. To suggest a Secondary Caution was necessary when Ms. Simone was arrested misses the point of a Secondary Caution. There had been no intervening police officers after Ms. Simone’s arrest that could have made a promise or threat prior to getting into the back of the police cruiser. There was no need for the Secondary Caution at that time.

[54] The Defence submits that by Officer Doyle telling Ms. Simone that she was a “good person” was inappropriate pressure. I disagree. Conduct or questioning by the police to gain the confidence of the person interviewed is not inappropriate. The police are permitted to use persuasion or coercion to get the person to answer questions provided that what the police did or said in all the circumstances did not suborn the will of the person such that the person no longer had an operating mind – that is the ability to decide whether to answer questions and properly formulate answers to the questions. None of that occurred in this case. The suggestion that this conduct amounts to police trickery for the purpose of a voluntary analysis is absurd. The oft quoted statement from R. v. Hebert, [1990] 2 S.C.R. 151: “Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence”.

Analysis

[55] The Defence submits that the cumulative effect of the above circumstances raises a reasonable doubt as to the voluntariness of Ms. Simone’s statement. I agree that the court must consider all the circumstances and the analysis requires a contextual analysis of all the relevant circumstances, both minor and major relevant circumstances.

[56] Many of the Defence submissions were considered and dismissed by the Saskatchewan Court of Appeal in R. v. Edmondson, 2005 SKCA 51:

[31] In keeping with R. v. Hebert the police officer was not obliged to protect the accused against making a statement if he chose to do so. Indeed, it was open to the officer to use legitimate persuasion to encourage Mr. Edmondson to choose to talk about what had occurred, and to do so in the absence of counsel. As noted in Hebert, at p. 184, “police persuasion short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.”

[32] The police officer used several persuasive techniques to encourage Mr. Edmondson to talk. He began by suggesting it was necessary for him to find out what had happened—bearing in mind there are always two sides to every story—and necessary for him to collect evidence pertaining to both sides of the story. There can be nothing objectionable about this, notwithstanding the fact that the police officer knew that the accused had been advised by counsel to say nothing and that the officer’s aim was to overcome that advice, in the sense of persuading the accused to talk despite counsel’s advice not to do so. Hebert is clear about this. Nor can there be anything objectionable about the police officer’s later suggestions that it was time for the truth; that he was going to be talking to the others; that the occurrence seemed out of character; or that he needed the accused’s version of events to assess the situation and draw the requisite conclusions. Again, these were legitimate forms of persuasion.

[33] Later, the police officer played upon the strength of what he supposedly knew, suggesting the information incriminated the accused in particular but allowing as how the matter might simply have gotten out of hand, and understandably so. He followed up by an appeal for honesty and for further information in the interests of a complete investigation, suggesting that for all he knew the accused might have been acting innocently. He then repeated his request for the accused’s side of the story, suggesting that the accused help himself out, as his friends were apt to do when they talked to the police, and reminding the accused that the truth would ultimately emerge. He went on to ask the accused to take him through what had happened, step by step, assuring him the police were going to talk to everyone involved and evaluate the situation in light of the whole. Once again these were legitimate means of persuasion, aimed as always at persuading the accused to talk despite counsel’s advice to the contrary.

[34] Leaving aside the police officer’s remarks pertaining to counsel—as we have done up to now—we are satisfied the appellant knew throughout that he had the choice of talking to the police officer or remaining silent, and that the statement he made was the product of an operating mind. The police officer simply persuaded him to talk by legitimate means of persuasion.

[57] In this case, it is clear from reviewing all the circumstances, that although Ms. Simone was upset, perhaps even frightened, she was aware of what was going on, understood her legal advice not to answer questions, understood the questions, understood the consequences of answering the questions. Ms. Simone had control over whether to answer and what to say. However, she chose to answer some of the questions posed by Officer Doyle. One asks why? Perhaps, Ms. Simone wanted to go home. Despite being told numerous times that she was not going home that night, she continued to engage Officer Doyle with the hope that she might go home – a hope that was perhaps misguided but not the result of anything said or done by the police officers. In the final analysis, there was no quid pro quo from the police officers and there is no evidence which casts any doubt on the voluntariness of Ms. Simone’s statements on November 7, 2013.

[58] Considering all the Defence submissions, I am not persuaded that the issues raised either singularly or when considered as a whole, along with all the circumstances of that day, amounted to “threats, intimidation, deception and inducements” or raised a reasonable doubt regarding the voluntariness of the statement.

Conclusion on Voluntariness

[59] Ms. Simone’s statements to the police on November 7, 2013 are voluntary.

Charter Breach

The Law

[60] The onus is on the Defence to establish on a balance of probabilities that Ms. Simone’s Charter rights were breached.

[61] In Burlingham ante, the Supreme Court set out the test for assessing whether the police undermined the suspect’s Charter rights by belittling the legal advice:

[14] Second, s. 10(b) specifically prohibits the police, as they did in this case, from belittling an accused's lawyer with the express goal or effect of undermining the accused's confidence in and relationship with defence counsel.

It makes no sense for s. 10(b) of the Charter to provide for the right to retain and instruct counsel if law enforcement authorities are able to undermine either an accused's confidence in his or her lawyer or the solicitor-client relationship.

[62] In Burlingham, the conduct of the police was particularly egregious on numerous fronts.

[63] The above statement from Burlingham was repeated by the Court of Appeal in R. v. Mujku, 2011 ONCA 64 at para 36 and R. v. Boothe, 2016 ONCA 987.

The Defence authorities

[64] Justice Langdon dealt with undermining a suspect’s rights to counsel in R. v. Armishaw, 2011 ONSC 5624. However, in Armishaw, there was medical evidence regarding the suspect very limited intellectual ability to comprehend what was happening and as a result, Justice Langdon was not persuaded that the Crown had proven the voluntariness of the statements beyond a reasonable doubt. This case does not assist the Defence in this case.

[65] In R. v. Fulton, 2016 ONSC 2510, 2016 OJ No. 1896 the court ruled that a suspect’s statement was not proven to be voluntary. On the issue of undermining the suspect’s legal advice the court stated: “He [the interviewing police officer] suggests that the advice given by duty counsel is contrary to the accused's best interests, because the accused could easily clear things up, by making what the police misrepresented to be an exculpatory statement.” Those facts are a significant difference from the case at bar.

[66] In R. v. James, 2004 OJ No. 3529 the court held that the statement was not proven to be voluntary because the interviewing police officer made disparaging comments about the legal advice so as to undermine the legal advice the suspect received. However, in James, the interviewing police officer went to great lengths to undermine the legal advice by mocking, belittling, and disparaging the legal advice. See paragraphs 6-10 of James. The facts in James are significantly different in the case at bar.

The Crown’s authorities

[67] In R. v. Mujku, 2016 ONCA 36, the Court of Appeal upheld a finding by the trial judge that a number of statements by the interviewing police officer to obtain a statement from the suspect such as “safer”, “better”, “much better”, “best thing”, while inducements, did not cross the line of undermining the suspect’s legal advice. Leave to appeal to the Supreme Court was denied. See Nop v. The Queen.

[68] In R. v. Edmondson, 2005 SKCA 51, the Saskatchewan Court of Appeal, dealt with the issue of undermining the suspect’s legal advice.

[35] That leaves for consideration the police officer’s remarks pertaining to counsel. The question is whether the trial judge erred in concluding that the officer had not gone too far, having regard, first, for the principle set out in R. v. Burlingham: That section 10(b) of the Charter prohibits the police from belittling counsel for the accused with the express goal or effect of undermining the accused’s confidence in and relationship with counsel.

[36] The trial judge did not frame the issue in quite this way. He framed it by reference to unacceptable police attempts “to undermine the advice of counsel for purposes of obtaining a confession,” noting the strategy employed by the police officer to “downplay the advice of counsel.” This is not the test for determining if police conduct violates an accused’s section 10(b) right to counsel in these circumstances, and the judge should not have used this test.

[37] This is so because an officer who sets about persuading an accused to talk, despite the accused having been advised by counsel not to do so, risks running afoul of this test from the very beginning. In this context, to persuade is to cause one to do something through reason or suggestion that one has been advised not to do, which is to speak to the police about a matter under investigation. Any effort by the police at persuasion in this context is perforce an effort to undermine or downplay the advice of counsel and obtain information relevant to the investigation. It cannot be otherwise. Yet the police are entitled to use suasion. Thus the test employed by the trial judge cannot be right.

[38] That said, the test he used redounded to the advantage of the accused because the officer was more likely to have violated the accused’s rights on this test than on the test of Burlingham. According to Burlingham, applied in conjunction with Hebert, the test is whether the remarks in issue, viewed in the context of the interview as a whole, served to so belittle counsel, with the express goal or effect of undermining the accused’s confidence in and relationship with counsel, as to have violated the accused’s right to counsel and vitiated his choice to remain silent.

[39] During the interview, and in reply to observations or questions by the accused, the officer made essentially three remarks pertaining to counsel. The first was in response to the accused’s observation that counsel had advised him not to make a statement to the police before first talking to counsel. In response the officer asked the accused if he thought that was “the smartest thing” to do. The second came in response to the accused having assured the officer he would be honest with him but thought he should talk to counsel beforehand, prompting the officer to say “but the lawyer’s not in the jackpot you are” and to suggest the matter be dealt with “here right now…between the you and me.” The third was in reply to the accused’s question, “Why do lawyers tell you not to talk…?” to which the officer replied: “It makes their job easier I would imagine. I’ve never been a defence lawyer. I don’t know. But they’re not… lookin’ at being charged.”

[40] Of the three remarks, the first and second are the most questionable. The third amounts to a disingenuous method of deflecting the accused’s question, which of course the officer was not bound to answer—and which he was not about to answer for obvious reasons. Furthermore the response is rather meaningless, at least on the face of it, and the accused did not follow up on it. This is also true of the officer’s comment to the effect the lawyer was not in the “jackpot” the accused found himself in. What does this mean? And what is the effect of it? In itself it says little, though it does tend toward undermining the accused’s confidence in counsel, as does the earlier remark asking the accused if he thought not talking to the police was the “smartest thing” to do.

[41] In the circumstances, the trial judge concluded that the officer had come close to the line but had not crossed it, a conclusion based on the interview and the test he employed. Had he employed the more exacting test of Burlingham he would obviously have arrived at the same conclusion. At bottom this reduces to a matter of evaluative inference and judgment when looked at in the context of the whole of the interview. It is worth noting, perhaps, that the accused did not testify on the voir dire held to determine the admissibility of the statement. It is not as though he had done so and said that he had come to believe, in consequence of the police officer’s remarks, that he could not put any stock in counsel; or that counsel had given him bad advice; or that he had no choice but to talk to the officer. No such evidence was adduced.

[42] In the circumstances, which in our opinion are far removed in both nature and extent from those in Burlingham, we are not satisfied the trial judge erred in finding that the officer had violated his section 7 and 10(b) rights.

[69] In R. v. Shannon, 2012 BCSC 1519 the interviewing police officer emphasized the importance of telling the truth “without the filter of a lawyer”. The judge concluded that there was nothing improper to suggest to a suspect that he or she should make their own determination as to whether to make a statement. The court also considered that it was significant that there was no evidence that the confidence in the legal advice was affected. As a result, there was not Charter breach.

Analysis on Charter Breach

The legal advice

[70] The first issue raised by the Defence was that Officer Doyle failed to interrupt or tell Ms. Simone not to repeat the legal advice she had received from duty counsel. For the reasons set out above, this submission is rejected. It is not a Charter breach if Ms. Simone decides to divulge her legal advice.

Persistent Questioning

[71] The next area raised by the Defence is that Officer Doyle persisted with his questioning despite Ms. Simone telling him that the legal advice was not to speak with him.

[72] This court is of the view that the level of persistence did not raise to the level of undermining the legal advice. Quite frankly, the level of persistence in this case was quite mild when comparing it to the circumstances in cases like Singh where the persistence by the interviewer was not objectionable.

Asking for the Truth

[73] The Defence suggests that by telling Ms. Simone that the police wanted the truth somehow undermined the legal advice.

[74] This court rejects this submission. The police may use, as a persuasive method, encouragement to tell the truth. In any event, the degree to and manner which Officer Doyle told Ms. Simone that he wanted the truth was not overbearing, improper or undermined the legal advice.

Taking advantage of Ms. Simone’s vulnerability

[75] The first fact to be pointed out is that Ms. Simone was 31 years old at the time of her arrest. While it appears that she had no prior encounters with the police, she was not a young person who would be potentially more easily manipulated, frightened or taken advantage of because of such statements.

[76] It is true that Ms. Simone struggled with the legal advice and whether to answer Officer Doyle’s questions. However, beyond that, what Ms. Simone’s thoughts or feelings were or whether the legal advice was in fact undermined is entirely speculation as it was speculation in Shannon.

[77] Essentially, the Defence submission was that Ms. Simone said on several occasions that she didn’t know whether to accept duty counsel’s advice. The Defence submits this made Ms. Simone vulnerable and Officer Doyle took advantage of this vulnerability by gaining Ms. Simone’s trust. First, the indecision by Ms. Simone as to whether to follow the legal advice did not create vulnerability. She continued to struggle with this issue because she wanted to go home, not because of something Officer Doyle said or did.

[78] At no time did Officer Doyle tell, suggest or imply to Ms. Simone not to accept and follow duty counsel’s advice. In fact Officer Doyle at one point said to Ms. Simone she had every right to take the advice of counsel:

“You have every right to talk to a lawyer and take the advice of that lawyer. Okay but I’m here now with you ok? And I’m her for the truth and this is your opportunity for us to talk, really figure out what happened today and what went wrong and how did you get tied up in this mess today. I’ve only spent a little short period of time with you but I believe you when you say you’re a good person, I believe that.”

[79] Further, attempting to gain the suspect’s trust to get them talking despite the legal advice, is permissible. Absent something more, it is the type of persuasion that the authourities state is acceptable.

[80] Lastly, on a number of occasions, Ms. Simone states that she knew that Officer Doyle was not her friend. Clearly, her will and vulnerability was not compromised throughout the interview.

Ms. Simone did not understand the reason for her arrest

[81] The first difficulty with this submission is that Ms. Simone was told what the charges were when she was arrested. She stated she understood. There was no challenge to the officer’s evidence on this point. At page 4 of the transcript, Ms. Simone confirms that she was told what the charges were. At page 5, she tells Officer Doyle that “you know what I did”.

[82] At page 9, Officer Doyle again explained to Ms. Simone why she had been arrested. Contrary to the submission, Ms. Simone doesn’t say she doesn’t understand the charges she says: “I don’t have the drugs”; “I don’t carry no drugs on me”. When read as a whole, Ms. Simone believed that she didn’t touch the drugs, she didn’t get on the flight, she didn’t have the drugs on her and therefore, there was no reason the police should continue to hold her.

[83] Clearly, Ms. Simone understood that she had been arrested for carrying drugs in the suitcase which she had checked in at the airport. While this might have raised questions in her mind that she had done nothing wrong (if proven), she was mistaken about the law. However, that is her mistake.

Summary

[84] The Defence suggests that the cumulative effect of the above undermined the legal advice given to Ms. Simone. This court disagrees. It is apparent that Ms. Simone remained conscious of the legal advice she had received. She remained skeptical of the attempts by Officer Doyle to build rapport with her. She continued to question what she should do. It was Ms. Simone’s decision throughout whether and what to say to Officer Doyle despite her legal advice to say nothing to the police.

[85] Similarly to what is stated in Boothe, at para 26, there is no evidence as to what Ms. Simone thought about the legal advice or whether Officer Doyle’s statements and conduct had any impact on her decision to answer questions. Having reviewed the videotaped interview, this court does not find that Ms. Simone’s legal advice was undermined. The videotaped interview discloses that there was no apparent effect on Ms. Simone’s behaviour or decision to answer certain questions.

[86] This court is not persuaded that Officer’s Doyle intended to undermine Ms. Simone’s legal advice and, in any event, the effect of Officer Doyle’s statements and conduct did not undermine her legal advice.

[87] The Defence has failed to establish on a balance of probabilities that Ms. Simone’s Charter rights were breached.

Conclusion on Charter Breach

[88] This court does not find that Ms. Simone’s Charter rights were violated.

[89] In any event, the analysis as to whether evidence should be excluded is the consideration of the following factors set out in R. v. Grant, 2009 SCC 32:

i. The seriousness of the Charter infringing state conduct;

ii. The impact on the Charter interests of the accused; and

iii. Society’s interest in adjudicating a trial on the merits.

[90] The balancing of the above factors in the circumstances of this case and considering the matter as a whole, Ms. Simone’s statements would not have been excluded under s. 24(2) even if there had been a Charter breach.

Ricchetti J.

Released: February 28, 2017