Court File and Parties

COURT FILE NO.: 13-RM2312 DATE: 2017/03/06 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – P.N.W. Accused

COUNSEL: Meaghan Cunningham and Anya Kortenaar, for the Crown Trevor Brown, for the accused

HEARD: February 27 and March 1, 2017

BEFORE: C.T. Hackland J.

Ruling (Voluntariness Voir Dire)

[1] The Crown seeks, by way of pre-trial ruling, a finding that a video statement provided by the accused to police detective Lamarre, some 10 hours following his arrest on March 11, 2015, was given voluntarily so as to be admissible in evidence.

[2] The video interview with the accused is approximately one hour in length. It can be seen that the accused is alert uninjured and very engaged in his answers given to Detective Lamarre. The statement is exculpatory and at several points the accused acts out his story as to how he returned home to find his girlfriend unconscious from an apparent drug overdose, how he picked her up and tried to revive her and accidently allowed her head to knock against a piece of furniture. He explained that he did not summon help because his girlfriend, who was pregnant, was under Children’s Aid Society monitoring for her drug use and he was concerned that CAS would use this incident against her.

[3] Detective Lamarre made it explicitly clear to the accused that he was not required to answer questions. He also ascertained that the accused had received legal advice following his arrest. The accused volunteered “…my lawyer last night told me not to make any statements because it could hurt me.” The officer replied “Okay. Yeah” and the accused then launched into his story including, as noted, acting out his physical interactions with his girlfriend. There was nothing in Detective Lamarre’s questioning or conduct of the interview that could be characterized as oppressive or as a threat or inducement. A tactic employed by officer Lamarre was to say several times that he was not going to waste his time talking to the accused any longer if he wasn’t getting honest answers. I do not see that tactic as threatening, particularly when it was made clear to the accused that he was not required to answer questions.

[4] The main submission made by Mr. Brown, counsel for the accused was that in the circumstances surrounding the arrest, the applicant was subjected to physical force – he suggested excessive force – by the arresting officers. He argued that a level of coercion or intimidation would have persisted in the mind of the accused from the time of the arrest right through the 10 hour interval before the statement and throughout the statement so as to create a reasonable doubt about the voluntariness of the statement.

[5] I do not accept that the accused was subjected to any excessive force that could or did impact his participation in the video interview with Detective Lamarre.

[6] The Court heard from the four officers who were involved in the arrest. A neighbour of the accused had called police to report that noise coming from the accused’s apartment sounded like he was assaulting his pregnant girlfriend. Two male and one female police officer arrived on scene at approximately 2:30 am and carried out two “door knocks” at the second story apartment. After the second door knock, the accused opened the door and voiced his objection to the police coming in without a warrant. The accused is a very large powerfully built man (in excess of 6’2” and possibly 275 pounds). The officers testified that he was without a shirt, sweating profusely and with blood on his cheek.

[7] The female officer testified that the accused was blocking the door. She told the accused “I need to check the condition of your girlfriend”. When the accused began to argue with them, she and the two male officers pushed their way in with the female officer running into the back of the apartment to search for the girlfriend while the two male officers held the accused against the kitchen table. The female officer discovered the girlfriend unconscious on the couch, eyes swollen shut, with blood and bruising on her face, obviously pregnant, naked from the waist down, and in respiratory distress.

[8] Constable Jones, who was holding the accused against the kitchen table testified that the female officer came into the kitchen and said “it’s bad…we need OAC (paramedics).” The male officers then told the accused they were arresting him for assault and to put his hands behind his back.

[9] At that point, the accused resisted and a brief struggle ensued. The accused planted his feet and stiffened his arms. The two male officers each held onto one of the accused’s arms and several knee strikes were administered to get the accused to loosen his arms. The female officer administered several punches to the back of the accused’s head, essentially as a distraction technique. None of this had any effect as the accused stood his ground with his arms flexed. Then Constable Masaruka arrived and said “P.N.W., put your arms behind your back” and the accused complied immediately. This officer said he knew the accused from prior contacts in the community. Officer Masaruka escorted the accused to his police car, told him to stop talking and read him the appropriate warnings and transported him to the police station without further conversation. A potentially volatile situation was thereby diffused.

[10] The struggle between the accused and the two male and one female officer lasted only a couple of minutes by all accounts and ended when Constable Masaruka arrived. No one was injured. I find that the physical altercation was quite restrained on the part of both the accused and the officers. The officers recognized that the accused was not attacking them, but was simply flexing his powerful arms and not putting them behind his back as instructed.

[11] The defence relies on the case of R. v. Sabri, [2002] O.J. No. 2202 (C.A.) for the proposition that an assault on the accused by the police some six hours before a videotaped interview could create a doubt as to the voluntariness of the statement. That case however, is distinguishable on its facts. In Sabri, the trial judge found that the accused had been assaulted by two police officers in the elevator at the police station before being placed in the holding cells. Six hours later, the same officers conducted an interview with the accused which they failed to record. Thereafter, the same officers conducted a videotaped interview which the Crown sought to admit into evidence. The accused testified at the voir dire that he made the statement because the police threatened that they would send him and his family back to Iraq. The judge found that there was no reliable evidence to refute this allegation. In all the circumstances – the assault at the police station – the lack of credibility of the police officers – the failure to record the first interview and the deportation threat all served to cast doubt on the voluntariness of the statement.

[12] In the circumstances of this case, I find that the brief use of reasonable and justified force by the police while effecting a rescue of a seriously injured pregnant, young woman, did not have any effect on the state of mind of the accused when he provided a videotaped statement to a police officer not involved in the arrest, some ten hours later. Moreover, the evidence is clear that there were no threats or inducements of any kind in relation to the taking of the video statement.

[13] I find the Crown has proven beyond a reasonable doubt that the accused’s statement to the police was voluntary and accordingly it may be admitted into evidence.

Released: March 6, 2017 Mr. Justice C.T. Hackland