COURT FILE NO.: CrimJ(P) 1580/16 DATE: 20170403 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. C.C.

BEFORE: Ricchetti J.

COUNSEL: S. Stackhouse for the Crown H. Cohen and J. Parise for the Defendant

HEARD: March 27, 28 and 29, 2017

PRE-TRIAL RULING ON VOLUNTARINESS

RESTRICTION ON PUBLICATION Pursuant to s. 486.4 of the Criminal Code no information that could identify the complainant or a witness shall be published in any document or broadcast or transmitted in any way.

THE APPLICATION

[1] The Defendant is charged with sexually assaulting H.P. and sexual interference of H.P. during the 31 days prior to March 31, 2015.

[2] This is a Crown application for a ruling that statements made by the Defendant during the police interview on April 3, 2015 were voluntary (“Statements”).

[3] There are no Defence Charter applications with respect to the Statements.

[4] Evidence was given on the voir dire by Sergeant C. Moynaux and Sergeant Frazer. The Defence did not call evidence on the voir dire.

[5] After hearing submission, the court advised the parties that the Statements were admissible and that written reasons would follow. These are those reasons.

THE FACTS

[6] Prior to April 3, 2015, as a result of certain information from Mr. E, a friend of the Defendant, the police commenced an investigation into alleged sexual touching and actions by the Defendant of H.P., a very young child. H.P. lives in the same home as the Defendant and is also the Defendant’s mother.

[7] On or about April 1, 2015, Mr. E. gave the police a statement alleging that the Defendant had been involved in sexual activity with H.P. Mr. E. had audio recordings where the Defendant allegedly described the sexual activity with H.P. Mr. E. gave the audio recordings to the police.

[8] On April 2, 2015, the police interviewed the family of H.P., including H.P.'s mother. At this point H.P.'s family could not confirm or add anything to the police investigation regarding H.P. or the allegations against the Defendant.

[9] The police contacted the Defendant at about 8:30 p.m. on April 3, 2015 and asked him to attend at the police station to discuss the allegations. At this point, the only information the police had was the statement of Mr. E. and the audio tapes. The police did not believe they had reasonable and probable grounds to arrest the Defendant without some additional or confirmatory evidence. The police wanted to investigate further.

[10] The Defendant arrived at the police station around 9:00 p.m. on April 3, 2015. The Defendant had spoken to his mother about the information that had come forward to the police regarding concerns for the safety of the children at the Defendant's home, including H.P.

[11] At the commencement of the interview, at approximately 9:46 p.m., the Defendant was told by the police that he was not under arrest, that he did not have to speak to the police, that anything he said could result in charges against him and that the interview was being audio and video taped. The Defendant nevertheless agreed to proceed with the police interview.

[12] During the first portion of the interview:

• the Defendant confirmed that he knew and was a friend of Mr. E;
• the Defendant had been with Mr. E. earlier that week;
• that the Defendant recalled having some conversation with Mr. E. regarding what had happened to H.P.;
• the Defendant told the police that he had had some prior issues regarding children in the past; and
• the Defendant had babysat H.P.

[13] As a result of these statements, by 10:12 p.m. the police determined that, to an extent the Defendant’s statements added to the evidence they had regarding the allegations and formed the belief the police had reasonable and probable grounds to arrest the Defendant for sexual assault and sexual interference of H.P.

[14] At approximately 10:29 p.m., the Defendant was arrested for sexual assault and sexual interference of H.P. The Defendant was processed as he was now under arrest.

[15] The Defendant was provided with his Charter rights and caution.

[16] The Defendant exercised his right to speak with duty counsel.

[17] At 10:55 p.m. the police continued its interview of the Defendant.

[18] It is clear from the video recorded interview that the Defendant understood his right to silence and that what he said could be used against him in court. The police wanted the Defendant to tell them what happened between the Defendant and H.P. On many occasions the Defendant stated he was not answering the police interviewer's questions. On many occasions he was not responsive to the questions asked.

[19] The police interviewer used statements like: "it would be better"; the Defendant would "feel better" if he told them what had happened; asking what he wanted "to say to" H.P. or to tell H.P. or his mother; what he wanted to say to H.P. that he was "sorry"; commenting that the police interviewer knew how hard it was on him to control himself and was sure that he had no desire to do anything "wrong" with children. In the end, the police interviewer was unsuccessful in obtaining any statements from the Defendant regarding what happened with H.P. or to obtain any comment regarding the statements he had allegedly made in Mr. E.’s audio tapes.

[20] At about 1:00 a.m., the Defendant yawned for the first time. He said he was tired. The Defendant told the police interviewer that he wanted to talk with his mother and said that he would then talk with the police interviewer.

[21] The police interviewer left the interview room and attempted to call the Defendant's mother. She was unable to contact the Defendant’s mother. Minutes later, the police interviewer returned to the interview room. The police interviewer confirmed to the Defendant that he was going to be released shortly. The police interviewer asked the Defendant what he wanted to say to his mother. The Defendant said he wanted to tell his mother that he was sorry. He went on to tell the police interviewer that he wanted help.

[22] Essentially, the Defendant continued to refuse to tell the police interviewer what had happened with H.P. because he said he would go to jail. The Defendant did make certain head motions which might be interpreted as agreeing with comment made by the police interviewer that he hadn't wanted this to happen.

[23] When asked by the police interviewer, the Defendant agreed he was tired.

[24] The police interviewer decided to end the interview and release the Defendant on a Recognizance with conditions.

[25] The Defendant was released at 1:14 a.m., about 10 minutes later.

THE LAW

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

[27] 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.

[28] 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.

[29] 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)

THE POSITION OF THE PARTIES

[30] The Crown submits that the Defendant's statements were freely and voluntarily given. The Crown submits that there is no evidence of any threats, inducements or oppression of any kind, the Defendant had an operating mind, and there was no police trickery.

[31] As a result, the Crown submits it has proven beyond a reasonable doubt that the Defendant's statements during the April 3, 2015 interview were voluntary.

[32] The Defence only seeks to exclude the Defendant's statements made after 10:50 p.m. (after the arrest). At the heart of the Defence’s objection are the Defendant’s statements that he wanted to tell his mother that he was sorry and that he needed help, both of which came after the unsuccessful attempt to contact the Defendant’s mother.

[33] The Defence submits that there is a reasonable doubt the Statements were involuntary because of the Defendant’s:

a) emotional, physical and psychological condition; b) oppressive questioning; and c) because of inducements offered by the police interviewer

ANALYSIS

a) Emotional, physical and psychological condition

[34] In general, the police interview shows that the Defendant understood and continued to rely on his right to silence until the end of the interview. In other words, there is no indication that the Defendant did not have an operating mind by choosing not to tell the police interviewer what had happened with H.P. or comment on Mr. E’s audio tapes.

[35] The Defendant knew he had the right to not respond to questions and said so many times and, at other times, he was simply non-responsive. The Defendant maintained this position to the end of the interview and refused to tell the police interviewer whether he had done to H.P. what was alleged. He neither confirmed nor denied the allegations. It was his right not to say anything to the police and he made a choice not to tell the police interviewer what had happened and had the mental ability to carry out his desire to say nothing regarding the allegations.

[36] Let me first deal with the Defendant's physical condition. The interview lasted a total of approximately four hours, 9:00 p.m. to 1:00 a.m. The Defendant first yawned near the end of the interview. One yawn. The Defendant said he was tired near the end of the interview. That is the extent of the evidence regarding the Defendant’s physical condition.

[37] There were and had been no other complaints or statements that the Defendant was tired, wanted to sleep, wanted to bring the interview to an end or was suffering from a physical condition.

[38] There is no evidence to support the Defence submission that the Defendant was “exhausted” and, therefore, his ability to decide whether to answer questions was affected.

[39] The interview was conducted near the end of the evening but the Defendant worked evening shifts and had been off the prior night. Any suggestion he was so tired during the interview that he did not have an operating mind would be entirely speculation.

[40] In conclusion, there is no evidence that the physical condition of the Defendant impacted, let alone raises doubts as to the Defendant’s ability to decide whether to answer questions and to provide clear and lucid answers if he chose to answer the questions.

[41] Let me turn to the Defendant's emotional and psychological condition.

[42] The Defence is correct when she suggests the police interviewer sought to build rapport and a connection with the Defendant through such techniques as showing empathy, suggesting it would be better for him, and asking what he would say to H.P. for what he had done.

[43] However, it is clear that the manner, length and questions asked by the police interviewer were not such that they attempted to overcome the Defendant's will. The police interviewer was soft spoken, not accusatorial, not aggressive, and not intimidating. The worst that can be said was that the police interviewer was persistent. There is no evidence that the police interviewer’s questioning, including the extent and manner of questioning, did overcome the Defendant’s will and operating mind. Clear proof of this conclusion is the Defendant's continuous repeated refusals or non-answers to the questions regarding what had happened with H.P. throughout the entire interview.

[44] To conclude that the Defendant’s statements, after the failed attempt to contact the Defendant’s mother, were the product or contributed to by any deliberate or accidental exploitation of the Defendant's emotional and psychological condition is speculation and inconsistent with the evidence.

b) Oppressive questioning

[45] The Defendant submits that the Defendant said, in different ways, to the police interviewer that he wasn't going to answer questions 24 times and the continued questioning was oppressive. This court disagrees.

[46] The Defendant did not get upset at the continued questioning. He appeared calm and relaxed. In fact, he said to the police interviewer – “it’s your job” to “say what you’re saying”. The Defence suggests that the Defendant was overwhelmed but I find that there is no evidence in support of this submission.

[47] The fact that a suspect said numerous times that he didn't want to answer questions but the police interviewer continued to ask questions is not necessarily oppressive conduct or renders statements made involuntary. All the circumstances must be considered - the length of the interview, the manner of the interview, the condition of the suspect, the responses of the suspect and so forth. Merely, saying that the suspect doesn't want to answer questions, even repeatedly, does not make, by itself, the continued questioning oppressive so as to render the statement involuntary. The following passages in R. v. Singh, [2007] 3 SCR 405, 2007 SCC 48 demonstrate the balance to be struck between a suspect's right to silence and the police interviewer's right to continue to ask questions:

28 What the common law recognizes is the individual’s right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident. Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime.

45 More importantly, Mr. Singh’s proposition ignores the state interest in the effective investigation of crime. The Court in Hebert stressed the importance of achieving a proper balance between the individual’s right to choose whether to speak to the authorities and society’s interest in uncovering the truth in crime investigations. As I stated earlier, the suspect may be the most fruitful source of information. While the fact of detention unquestionably triggers the need for additional checks on police interrogation techniques because of the greater vulnerability of the detainee, the moment of detention does nothing to reduce the suspect’s value as an important source of information. Provided that the detainee’s rights are adequately protected, including the freedom to choose whether to speak or not, it is in society’s interest that the police attempt to tap this valuable source. The Court in Hebert said the following on the critical importance of achieving a balance between individual and societal interests:

The Charter through s. 7 seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balance between the interests of the detained individual and those of the state. On the one hand s. 7 seeks to provide to a person involved in the judicial process protection against the unfair use by the state of its superior resources. On the other, it maintains to the state the power to deprive a person of life, liberty or security of person provided that it respects fundamental principles of justice. The balance is critical. Too much emphasis on either of these purposes may bring the administration of justice into disrepute — in the first case because the state has improperly used its superior power against the individual, in the second because the state’s legitimate interest in law enforcement has been frustrated without proper justification. [Emphasis added; p. 180.]

47 Mr. Singh takes particular issue with the leeway afforded to the police in questioning the detainee, even after he has retained counsel and has asserted his choice to remain silent. He submits that courts have erroneously interpreted the underlined passage above as permitting the police to ignore a detainee’s expressed wish to remain silent and to use “legitimate means of persuasion”. I say two things in response to this argument. First, the use of legitimate means of persuasion is indeed permitted under the present rule — it was expressly endorsed by this Court in Hebert. This approach is part of the critical balance that must be maintained between individual and societal interests. Second, the law as it stands does not permit the police to ignore the detainee’s freedom to choose whether to speak or not, as contended. Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities. As we shall see, the trial judge in this case was very much alive to the risk that the statement may be involuntary when a police officer engages in such conduct.

[48] Considering the law set out in Singh, and subsequent authorities, I am satisfied that, in all the circumstances, the continued questioning by the police interviewer was not oppressive and did not undermine the Defendant's right to silence, that is, affect his operating mind or his free will to decide whether to speak with the police interviewer.

[49] The videotaped interview showed the police interviewer as soft spoken, supportive, compassionate and understanding of the Defendant but persistent with her suggestion that the Defendant would feel "better" if he told her what had happened with H.R. There was nothing in the police interviewer's manner, questions or the duration of the interview which was oppressive or sufficient to overcome, or even possibly overcome, the Defendant’s will to say anything to the police interviewer. In fact, when the Defendant indicated he was tired, the police interviewer fairly quickly brought the interview to an end.

[50] The Defendant submits that the Defendant said 24 times that he was not going to answer the police interviewer's questions. However, despite the continued questioning, the Defendant maintained that position throughout the interview regarding his refusal as to what had happened with H.R. There is no indication in the videotaped interview that the Defendant's will was overborne causing him to lose his ability to decide whether to answer questions. Essentially, the Defendant made other statements unrelated to what happened with H.R. which can be construed as inculpatory. These statements do not appear, to this court, to be made because the Defendant’s will was overborne but because of inadvertence or decision on his part to say something unrelated to what happened with H.R. but which he might not have believed was inculpatory.

[51] The answer as to what he would have told his mother and his statement that he needed help, while inculpatory, was not the result of any improper questioning. The Defendant said that he wanted to speak with his mother. This court sees nothing improper or oppressive by the police interviewer in asking what he wanted to speak with his mother about. The subsequent statement that the Defendant wanted help was volunteered by the Defendant not the result of the police interviewer asking any question of the Defendant. The Defendant then went on to volunteer that he knew where he would end up – in jail. After this exchange, the Defendant continued to refuse to answer questions and the interview ended.

[52] After carefully reviewing the videotaped interview, there was no doubt the Defendant knew his right to silence, exercised his right to silence and that there was no indication that police oppression elicited any statements from the Defendant.

c) Inducements

[53] The Defence suggests that statements by the police interviewer like "it would be better", it would "help you", it would be "best for everyone" are inducements. In R. v. Mujku, 2011 ONCA 64, similar statements by the police interviewer were at issue. The Court of Appeal dismissed the appeal on the issue of the voluntariness of Mr. Chak’s statements. See paras 33-35 Mujku.

[54] There is no doubt these statements by the police interviewer were suggestions to motivate the Defendant to answer her questions. Namely, that it would be best for him and all concerned if he told the truth as to what had happened. There was no quid pro quo with respect to these inducements.

[55] Inducements, by themselves, do not make a suspect's statement involuntary. The Crown’s application fails only where there is a reasonable doubt that the inducements, along with any other factors, overcame the will of the suspect to make the statement(s). As stated by the Supreme Court in R. v. Oickle, [2000] 2 SCR 3, 2000 SCC 38, the most important consideration is to look for a "quid pro quo", what was offered to the suspect:

57 In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. 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. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212, particularly apt:

Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.

The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.

(emphasis added)

[56] In this case, nothing was promised to the Defendant. There was no quid pro quo.

[57] The Defence was unable to point to any offer of a quid pro quo. Essentially, the Defence would ask this court to infer some quid pro quo. That would be speculation. Suggesting to a suspect that they would feel better if they told the truth is not the quid pro quo contemplated by the Supreme Court in Singh. In any event, whether or not the Defendant would feel better if he told the truth is not in the control of the police and is unknown speculation.

[58] Further, and more importantly, the Defendant clearly knew that, if he told the police interviewer what had happened with H.R., he would go to jail – he told the police interviewer this at the end of the videotaped interview.

[59] The Defence also suggest that the continued questioning after the police interviewer told the Defendant he would be released was oppressive or trickery. In my view, there is no merit to this submission. If anything, the Defendant, having refused to answer questions for some time, would have taken comfort that he would be released shortly. Gone from the Defendant’s mind and concern would be a further lengthy interview with uncertainty as to how it would end. This statement of the impending release and the few questions that followed was neither oppressive nor police trickery.

[60] There is simply no evidence that the Defendant's will was overcome by any inducements, together or alone, by the police interviewer.

Other Issues Raised by the Defence

[61] The Defence submitted that the statements by the police interviewer negated or undermined the Defendant’s legal advice from duty counsel.

[62] Mujku also dealt with the Defence submission that the interviewer’s statements undermined the suspect’s legal advice when the officer said it was “safer”, “better”, “much better”, or “best thing”. The Court of Appeal decided that such statements 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.

[63] 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 no Charter breach.

[64] In my view, the police interviewer did not suggest that the Defendant not follow the legal advice he had received. There was nothing said to demean that legal advice. There was nothing said to lessen the importance of that legal advice. The evidence is that the Defendant followed that legal advice throughout the entire interview as to what had happened between himself and H.R. or comment on what was on Mr. E.’s audio tapes. The legal advice was not undermined.

[65] The Defence also submits that this court should consider the skillfulness of the police interviewer. This court is not persuaded that this is a useful exercise. It is the questions, manner and surrounding circumstances which must be carefully considered to determine whether statements are voluntary, not whether the police interviewer was or was not skillful and experienced and whether that skill or experience was brought to bear in this case.

Conclusion

[66] The Defendant's statements during the April 3, 2015 police interview were voluntarily made.

Ricchetti, J.

Date: April 03, 2017

COURT FILE NO.: CrimJ(P) 1580/16 DATE: 20170403 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – C.C. PRE-TRIAL RULING ON VOLUNTARINESS Ricchetti J. Released: April 03, 2017