COURT FILE NO.: 168/16 DATE: 2017/04/04
Publication Ban
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION BY ORDER OF THE HONOURABLE JUSTICE J. R. HENDERSON ON JANUARY 9, 2017 UNTIL FURTHER ORDER
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen T. Shuster and J. Strecansky, for the Crown Crown
- and -
Jeremy Edward Gough B. Walker and J. Lefurgey, for the Accused Accused
HEARD: January 9, 10, 11, 12, & 16, and March 6 & 7, 2017 The Honourable Justice J. R. Henderson
PRE-TRIAL MOTION #1
ADMISSIBILITY OF STATEMENTS OF THE ACCUSED
Introduction
[1] The accused, Jeremy Gough (“Gough”), is charged with the first degree murder of his estranged common-law spouse, Jessica Scanlon (“Scanlon”). It is alleged that on February 23, 2015, Gough entered Scanlon’s residence at 13 Chetwood Street, St. Catharines, killed her, and left her body in the basement of the residence.
[2] At issue in this pre-trial motion is the admissibility of two videotaped statements made by Gough to police officers. The first statement was made on February 23, 2015, the date Scanlon’s body was found, and the second statement was made on March 16, 2015, the date of Gough’s arrest.
[3] This was a blended voir dire. Gough raises the issue of the voluntariness of the two statements. Gough alleges that prior to the first statement he was a suspect in a criminal investigation, and that he was not so informed or cautioned about speaking with police. Further, Gough submits that his ability to exercise his free will was overborne by police conduct and by the circumstances.
[4] In addition, Gough submits that his rights under s.7 and s.10 of the Canadian Charter of Rights and Freedoms (“the Charter”) were breached, and that his statements should be excluded from the evidence at trial pursuant to s.24(2) of the Charter. In particular, Gough alleges that he was detained by police on February 23, 2015, and that upon his detention he was not informed of the reasons for his detention, his right to retain and instruct counsel, or his right to remain silent.
[5] I accept that the onus is on the Crown to prove the voluntariness of the statements beyond a reasonable doubt. Regarding the Charter, the onus is on Gough to prove on a balance of probabilities that there has been a breach of the Charter and that the evidence should be excluded.
The Facts
[6] Scanlon’s body was discovered in the basement of her residence at 13 Chetwood Street by Scanlon’s friend, Ashley Bielby (“Bielby”), in the afternoon of February 23, 2015. Bielby immediately called 911, and the Niagara Regional Police Service dispatched several officers to the residence.
[7] Officer Mark Morneau (“Morneau”) was dispatched to the residence and arrived there at 3:48 p.m. Morneau was informed that Scanlon had been found with no vital signs with indications of trauma to her head and body. Morneau believed that the residence was a possible crime scene, and he put police tape around the building. He was not aware of Scanlon’s family dynamics.
[8] Morneau then spoke to Bielby who informed him that Scanlon had two children, age four and eight years, and that the children needed someone to pick them up from Edith Cavell School. Morneau asked another officer, Rebecca Gordon (“Gordon”), to attend the school, locate the children, ensure their safety, and then contact him.
[9] Meanwhile, the principal of the school had observed that the two children were not being picked up after school, and she had contacted their father, Gough, to pick up the children.
[10] At 3:54 p.m. Gordon arrived at Edith Cavell School and observed Gough exiting the school on foot with the two children. Gordon stopped Gough and asked him to identify himself and the children, which he did.
[11] Gordon asked Gough to return to the front lobby of the school, which he did. Then, Gordon directed the children to go with the principal to another room around the corner from the lobby. Gordon and Gough remained alone in the lobby of the school. At that point, Gordon radioed for assistance, and Morneau responded. Morneau told Gordon to stay at the school with Gough until he arrived.
[12] Then, Gordon told Gough that her job as a police officer was to document everything, and that if he said anything, she had a duty to write it down. She told him that he did not have to speak with her. Gordon also told Gough that if he would like to talk to a lawyer, he could. Gough said that he understood.
[13] I accept that Gough was calm and co-operative. However, I find that Gough repeatedly asked Gordon what was going on. Gordon’s response was that her task was to attend the school and locate the children. Gordon did not inform Gough about Scanlon’s circumstances. She told him that another officer, with more information, would be attending to talk to him.
[14] At 4:00 p.m. Morneau arrived at the school and Gordon introduced Morneau to Gough in the lobby of the school. Morneau informed Gough that an incident had taken place, and that the police investigators would like to speak with him downtown. Morneau asked Gough if he would come downtown with him, and Gough agreed.
[15] Morneau directed Gough to stand and raise his arms against the wall in the school lobby so that Morneau could perform a brief pat-down search, which he did. Then, Morneau and Gough walked together out of the front door of the school. Gough had not been arrested, and he was not handcuffed or otherwise restrained.
[16] Morneau told Gough that they would drive together to the police station in his police cruiser. Gough indicated that he had arrived at the school in a white pickup truck that was now parked on the roadway with the engine running. There was a female sitting in the truck. Gough asked if he could speak to the female in the truck, later identified as T.J. DeWitt (“DeWitt”), but Morneau said it would not be a good idea, and he directed Gough to walk to the police cruiser.
[17] Morneau placed Gough in the back seat of his police cruiser. I find that the cruiser is designed so that the rear doors cannot be opened from the inside. Thus, after being placed in the cruiser, Gough was locked into the back seat of the cruiser.
[18] Then, Morneau walked to the pickup truck and asked DeWitt to exit, which she did. Morneau turned off the ignition, locked the truck, and took the keys, leaving the pickup truck locked on the roadway.
[19] Morneau then drove the cruiser, with Gough in the back seat, to the police station. At approximately 4:17 p.m. Morneau let Gough out of the cruiser and the two of them walked together into the front lobby of the police station. Then, Morneau left Gough sitting on a couch in the public area of the lobby of the police station for approximately 5 to 10 minutes while Morneau went into the secured area to speak with Detective Sergeant James Munro (“Munro”), who was a member of the homicide unit.
[20] By that time, a homicide investigation had been commenced. Munro had been assigned the task of interviewing Gough, and he was in the process of setting up the interview room at the police station. At 4:30 p.m. Morneau introduced Munro to Gough in the lobby of the police station. Then, Munro walked Gough down a corridor to the interview room.
[21] I find that at the time Gough entered the interview room for the first statement, he had not been informed of the death of Scanlon, nor had he been informed of any of the circumstances surrounding her death. He had not been arrested, and he had not been informed that the police officers were investigating a crime. He had not been informed that he faced any possible criminal jeopardy. Further, but for the brief discussion with Gordon at the school, he had not been informed of his right to retain and instruct counsel, or his right to refuse to speak with the police officers.
[22] The entire first statement was video- and audio-recorded. At all times, Gough was interviewed by Munro in the interview room, and the interview was monitored by another officer, Sarah Rose (“Rose”), from another room. The interview lasted two hours and 35 minutes, although Munro left the room several times for a few minutes each time during the course of the interview. A transcript of the interview is 318 pages long.
[23] Munro commenced the interview by telling Gough that his “ex” had “passed away.” In response to this news, Gough began to cry. Gough clearly appeared to be quite upset. Munro did not provide Gough with any other details as to the circumstances of Scanlon’s death, although Munro asked Gough at various times if he knew of anyone who might want to hurt her.
[24] Munro acknowledged that he did not tell Gough that he was investigating a homicide and that he did not tell Gough that Scanlon had met with foul play. He further acknowledged that he did not inform Gough that he had a right to retain and instruct counsel, and he did not caution him against speaking with police officers.
[25] Very early in the interview, Munro provided a brief caution to Gough by saying that “all the rooms are videotaped” and “we’re recording everything.” Munro also told Gough, “I have no reason to believe that you’ve done anything wrong” and “you’re only here because we’re trying to find out what happened.” He also said, “You’re free to leave anytime you want.” I find that Gough appeared to understand all of those comments.
[26] For approximately the first one and a half hours of the interview, Munro asked Gough questions about the nature of his relationship with Scanlon, the circumstances of Gough’s last contact with Scanlon on the evening of February 22 and the morning of February 23, Gough’s activities during the day of February 23, what Gough had been wearing, what vehicle Gough had been driving, Gough’s relationship with DeWitt, and whether DeWitt could verify Gough’s activities during the day.
[27] During the course of the interview, on several occasions, Munro asked Gough if Gough had anything to do with Scanlon’s death, and Gough consistently denied same.
[28] I find that throughout the interview, even when Munro was not present, Gough appeared to be upset and crying. He regularly expressed concern about his children and how he would tell them about Scanlon’s death.
[29] Further, throughout the interview, Munro developed a theme about how homicides can occur, particularly in domestic relationships. At page 25 of the transcript Munro said, “Sometimes people don’t mean to hurt people, but things get carried away...” At page 170 Munro said, “When there’s people in relationships and someone gets hurt, obviously the police wonder if the person in the relationship had anything to do with it.” At page 185 Munro said, “There’s lots of situations where people aren’t violent people, but then emotions kick in and they do things that they’re sort of out of their control...”
[30] In cross-examination at the voir dire, Munro testified that it crossed his mind that Gough could have caused harm to Scanlon. He denied the suggestion that Gough was a suspect in Scanlon’s murder, but said that he was “alive to all options.”
[31] After approximately one and a half hours, Munro asked for Gough’s co-operation to examine Gough’s pickup truck and view Gough’s Facebook account. He said, at page 214 of the transcript, in discussing these two matters, “Would you be willing to help us in any way you could to try to eliminate you...?” In cross-examination Munro acknowledged that this comment meant that the examinations of the truck and the Facebook account could help eliminate Gough as a suspect.
[32] Gough orally consented to the police officers examining the pickup truck and viewing Gough’s Facebook account. Therefore, Munro produced a typed consent form for Gough to sign with respect to these two searches. While completing the form, Munro asked Gough if he would like to speak to a lawyer before signing the form, and further informed Gough that a Legal Aid lawyer would be available to him free of charge. Gough declined to contact a lawyer and signed the consent form.
[33] Then, Munro and Gough went to another room in the police station that had a computer and an internet connection. At that point, Gough accessed his Facebook account for Munro and allowed Munro to read and copy messages from his Facebook account. They then returned to the video interview room together to continue the first statement.
[34] Thereafter, Munro asked Gough to permit the police officers to examine Gough’s clothing. Again, Gough orally agreed to this request, and again Munro produced a consent form to that effect. Again, Munro asked Gough if he wanted to speak to a lawyer first. Gough declined and signed the consent form.
[35] The video interview was completed at 7:08 p.m. At that point, two Victim Services persons were introduced to Gough to assist him in dealing with the children. Munro, Rose, the Victim Services persons, and Gough then left the police station together. The two police officers drove Gough to his brother’s residence at 208 Geneva Street where Gough had been living. Gough changed his clothes and gave the police officers the clothes he had been wearing.
[36] Then, the two officers drove Gough to Gough’s mother’s apartment where his children were waiting for him. With the assistance of the Victim Services persons, Gough then told his children that their mother was dead. Munro and Rose left Gough with his mother and his two children at 7:58 p.m.
[37] The homicide unit made a decision to conduct surveillance on Gough shortly after midnight February 24, 2015, at which time Officer Brian Smith (“Smith”) was assigned the task of preparing a surveillance package. Thereafter, Gough was under police surveillance 24 hours per day from early in the morning of February 24, 2015 until approximately March 3, 2015.
[38] On March 16, 2015 police officers determined that there were reasonable and probable grounds to arrest Gough. Therefore, Officer Michael Barkway (“Barkway”) and Smith were assigned to arrest Gough.
[39] I find that Gough was arrested for the murder of Scanlon at 4:06 p.m. on March 16, 2015 at a laundromat, at which time he was promptly informed of the reasons for his arrest, informed of his right to retain and instruct counsel, and informed of his right to silence. I find that the police officers properly informed Gough of his rights upon his arrest, and that Gough understood those rights.
[40] After his arrest, Gough was escorted by the police officers to the police station where he was booked into the cells. At the booking area, at 4:25 p.m., he informed the booking officer that he would like to speak to a lawyer. At 5:10 p.m., Gough was permitted to speak with his lawyer by telephone in a private room. Thereafter, he was returned to his cell.
[41] At 6:04 p.m. on March 16, 2015 Gough was removed from his cell and escorted to the interview room in the police station where he was interviewed by Detective Sergeant Paul Thibert (“Thibert”) commencing at 6:07 p.m.
[42] The entire second statement was video- and audio-recorded. The interview lasted three hours and 31 minutes, although Thibert left the room several times during the course of the interview. A transcript of the interview is 238 pages long.
[43] At the start of the second statement, Thibert gave Gough a secondary caution with respect to any communication he may have had with other police officers. Thibert also confirmed that Gough had been given an opportunity to speak with his lawyer.
[44] For approximately the first hour of the interview, Thibert tried to establish a rapport with Gough. He obtained some food and drink for Gough, and then Thibert and Gough ate the food and talked about mundane topics such as baseball.
[45] Then, Thibert told Gough that they knew what had happened and who had done it, but they did not know why it had happened. He said that it was important for them to know the reason why. Gough responded by saying, “No comment.”
[46] Throughout the balance of the interview this type of exchange was repeated over and over. Thibert repeatedly said that “We know what happened.” On occasion he said, “We can prove you did it, and that is why you are here.” He also said, “We do not arrest people without evidence.” At one point, Thibert said, “You killed Jessica.”
[47] In response to Thibert’s most pointed questions, Gough told Thibert, politely and respectfully, that he had no comment or that he had nothing to say. On several occasions he stated that he wanted to go back to his cell. I accept that Gough said that he had no comment approximately 20 to 25 times during the interview, and that he asked to go back to his cell approximately eight times.
[48] On many occasions, Thibert made reference to statements Gough had made to Munro on the first interview. Thibert first mentioned to Gough, at page 14 of the transcript, that he had viewed Gough’s interview with Munro, and again mentioned it, at page 37, in reference to Gough’s Blue Jays jacket. In total, during the second interview, Thibert referred to Gough’s first interview on eight separate occasions.
[49] In particular, at page 73 of the transcript, Thibert said, “You were not truthful with Jamie [referring to Munro] when you spoke to him that day.” This was a reference to Gough’s activities on the morning of Scanlon’s death. Gough had told Munro that he first left the house that morning at about 9:50 a.m. with DeWitt, but he had not told Munro about leaving the house that morning by himself before he left with DeWitt. Further, at page 149 of the transcript, Thibert said, “You did not tell Jamie about going out in the morning by yourself.”
[50] Then, at page 199 of the transcript, Thibert confronted Gough about the fact that he had told Munro that the clothes he had been wearing during the first interview were the clothes that he had been wearing all day, but Gough told Thibert that he had been wearing a different set of clothes when he left the house earlier that morning.
[51] Throughout the second statement, Gough was composed and respectful. He maintained his position that he did not know what had happened to Scanlon. On several occasions during the second interview, Gough made comments such as “I never did it” and “I would never hurt her.”
The Positions of the Parties
[52] Regarding the first statement, Gough raises the issue of the voluntariness of the statement and also alleges a breach of his Charter rights.
[53] With respect to voluntariness, Gough alleges that by approximately 4:00 p.m. on February 23, 2015, he was a suspect in a criminal investigation and that he should have been so informed and cautioned against making any statement to police. Gough submits that, because he was not properly informed, he was not made aware of the jeopardy that he was facing prior to making the first statement. Further, Gough submits that his ability to freely choose to speak or not speak with police was overborne by police conduct and by the circumstances.
[54] In addition, Gough submits that his Charter rights were breached prior to making the first statement. In particular, Gough alleges that he was detained by police on February 23, 2015, when Morneau took him from the school to the police station for an interview. Gough submits that upon his detention, contrary to s.7 and s.10 of the Charter, Gough was not informed of the reasons for his detention, his right to retain and instruct counsel without delay, or his right to remain silent.
[55] Regarding the second statement, Gough again raises the issue of voluntariness. Gough submits that he told Thibert on several occasions that he did not want to comment or that he wanted to return to his cell. Because Thibert continued to question him thereafter, Gough submits that his second statement was not made voluntarily.
[56] Regarding the Charter issues with respect to the second statement, Gough acknowledges that he was properly cautioned and informed of his Charter rights prior to the second statement, but Gough submits that the references in the second interview to statements made by Gough on the first interview taint the entire second statement.
[57] It is the position of the Crown, as to the first statement, that there was no breach of the Charter. The Crown submits that Gough was not detained at the time of the first statement, and therefore there was no Charter obligation to inform Gough of his right to counsel or provide him with any caution. The Crown further submits that the first statement was made voluntarily; that Gough was a witness, not a suspect, at the time; that there were no threats or inducements; that there was no police trickery; and that the conditions surrounding the first statement were not oppressive.
[58] Regarding the second statement, the Crown submits that the statement was voluntary, and that there were no Charter violations. However, the Crown concedes that if the first statement is inadmissible, the many references to the first statement in the second statement would render the second statement inadmissible as well.
The Law
[59] Regarding voluntariness, the onus is on the Crown to prove beyond a reasonable doubt that the statements made by Gough to the police officers were made voluntarily. See the decisions of R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 11, and R. v. Lam, 2014 ONSC 3538, at para. 232.
[60] In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, Iacobucci J. reviewed the law of confessions. He concluded that there are no hard-and-fast rules for determining voluntariness; rather, the determination of voluntariness requires a contextual analysis. Threats, promises, oppression, the accused’s operating mind, and police trickery were all matters to be considered. The legal test is whether the will of the accused has been overborne by the conduct of the police. See the Oickle decision at paras. 47-71.
[61] The contextual approach to voluntariness was reaffirmed in the case of R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405. Charron J. confirmed, at para. 27, that at common law a person is not obliged to provide information to a police officer or respond to questioning. She then wrote, at para. 36, that although the focus of the analysis is on the conduct of the police and its effect on the subject, the test for voluntariness is an objective one. However, the individual characteristics of the subject are relevant considerations in applying this objective test.
[62] Further, the presence or absence of a caution is a factor in determining the voluntariness of a statement. In Singh, at para. 31, Charron J. wrote:
Therefore, the notion of voluntariness is broad-based and has long included the common law principle that a person is not obliged to give information to the police or to answer questions. This component of the voluntariness rule is reflected in the usual police caution given to a suspect and the importance attached (even before the advent of the Charter) to the presence of a caution as a factor in determining the voluntariness of a statement made by a person under arrest or detention [citations omitted].
[63] Generally, I accept the principle that it would be prudent for a police officer to caution a person who is a suspect in a criminal investigation. That caution should inform the suspect that he has a right to remain silent, and that if he chooses to say anything to the officer, it may be used as evidence against him. See the Singh decision at para. 31; R. v. Worrall, [2002] O.J. No. 2711 (Q.L.), 2002 CarswellOnt 5171 (W.L.), at paras. 104-106 (S.C.J.); and R. v. Picard, 2016 ONSC 6424, at para. 35.
[64] In the Worrall decision, at para. 106, Watt J. (as he then was) described the absence of such a caution was as an “informational deficit,” and wrote, “Voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them.”
[65] The determination as to when a person becomes a “suspect” and is no longer simply a witness or person of interest has been the subject of much discussion. In R. v. Morrison, [2000] O.J. No. 5733 (Q.L.), 57 W.C.B. (2d) 161 (S.C.J.), Trafford J. wrote, at para. 50:
A person is a ‘suspect’ when, objectively viewed, the information collected during an investigation tends to implicate him/her in the crime. It is an objective test, not a subjective one, that is to be applied to the totality of the information. .... The frailty of the information collected during the investigation, if any, is to be considered in assessing its tendency to implicate a person.
[66] Further, in the case of R. v. D.(A.), [2003] O.J. No. 4901, 60 W.C.B. (2d) 8 (S.C.J.), Dambrot J., referenced the decision in Worrall, and, at para. 72, wrote: “[O]nce a police officer has information that ‘would alert any reasonably competent investigator to the realistic prospect’ that the death of the deceased may have been associated with an unlawful act committed by the person being questioned, that person should be cautioned.”
[67] More recently, in Picard, at para. 35, Parfett, J. wrote, “If the police are merely seeking information from people they believe are witnesses or persons of interest, there is no need for a caution. However, if the accused is viewed as a suspect—in other words implicated or involved in the crime—failure to caution him could be significant.”
[68] It must be remembered that the presence or absence of a caution is not determinative of the voluntariness issue. It is a factor in the consideration of the voluntariness of the statement, and in many cases an important one. See the D.(A.) decision, at para. 63.
[69] Regarding the Charter issues, the onus is on Gough to prove on a balance of probabilities that there has been a breach of the Charter, and that the evidence should be excluded.
[70] In the present case, Gough alleges that he was detained by police prior to providing the first statement. As a consequence of his detention, Gough submits that his Charter rights were triggered. He relies on s.7 and s.10 of the Charter, which read as follows:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right;
[71] Detention can be physical or psychological. In R. v. Therens, [1985] 1 S.C.R. 613, at p. 644, the Supreme Court of Canada held that a person is detained when he or she “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.”
[72] The concept of psychological detention was further confirmed by the Court in the cases of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 30, and R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 4.
[73] There are a number of factors that a court should consider in determining whether a person was detained by a police officer. In R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.), leave to appeal ref’d [1988] 1 S.C.R. xi (note), Martin J.A. provided a well-known list of those factors. The Moran factors were referenced by Watt J. in the Worrall decision at para. 111. Then, in Grant, the Supreme Court of Canada provided an updated similar list. At para. 44 of Grant, the majority wrote:
In summary, we conclude as follows:
…
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[74] Regarding the interplay between the Charter and the common law voluntariness rule, it should be noted that if the Crown is able to prove that the statement was made voluntarily, it is still open to the accused to prove a breach of the Charter and claim a Charter remedy. On the other hand, if the Crown is unable to prove voluntariness, the statement is not admissible and there is no need to embark upon a Charter analysis. See R. v. Pickton, 2006 BCSC 995.
Analysis
A. The Voluntariness Application
[75] I will deal first with the voluntariness of Gough’s first statement. The onus is on the Crown to prove beyond reasonable doubt that Gough’s statement made to Munro at the police station was made voluntarily.
[76] There is no suggestion that the statement was obtained as a result of threats, inducements, or police trickery, and there is no suggestion of oppressive conditions. However, defence counsel submits that Gough’s ability to choose to speak or not speak with Munro was overborne by police conduct and by the circumstances.
[77] In that regard, in my view, I must consider several significant issues, including whether Gough was a suspect in a criminal investigation at the time of the statement, whether Gough believed that he had no choice but to talk to police, whether Gough was aware of the criminal jeopardy that he faced, and whether Gough’s emotional state influenced his ability to make a voluntary choice.
[78] The events that led up to Gough’s statements start with the discovery of Scanlon’s body at her residence at 13 Chetwood Street and the 911 call made by Bielby. I find that the Chetwood residence was deemed a crime scene within minutes after police officers arrived at the residence. Morneau confirmed that he considered the residence to be a crime scene, and he put yellow police tape around the building prior to asking Gordon to go to the school. Gordon also testified that whenever a person is found with injuries and no vital signs, the scene is treated as if it were a crime scene.
[79] Munro was not at the residence, but was receiving information at the police station as part of the homicide unit. He testified that he assumed that there had been foul play and that he was reasonably sure that a crime had been committed.
[80] Therefore, I find that, by the time Gordon attended the school to locate the children, all of the involved police officers were reasonably sure that a crime had been committed, and a criminal investigation into Scanlon’s death had been commenced.
[81] When Gordon arrived at the school and found Gough with the children, I find that Gordon immediately took control of Gough. Gordon asked Gough to return to the school lobby, and then she separated Gough from his children. Then, Gordon radioed for assistance.
[82] By that time, I find that Morneau had already decided that he was going to make sure that Gough immediately provided a recorded statement to police officers. Morneau acknowledged in his testimony that, after he was informed that Gough was at the school, his intention was to go to the school, retrieve Gough, and take Gough downtown to provide a police statement. In Morneau’s words, “he would need to be spoken to.” In my view, this single-minded approach by Morneau is strong evidence that Morneau believed that Gough was a suspect in the unlawful death of Scanlon.
[83] To accomplish his goal, Morneau directed Gordon to keep Gough at the school until he arrived. Gordon did this by telling Gough that another officer would be coming to the school to answer his questions. At that point, Gough had been told nothing as to why he had been directed back to the school and he had been separated from his children. So, understandably, Gough waited for Morneau to arrive.
[84] When he arrived at the school, I find that Morneau immediately took control of Gough. Morneau only told Gough that an incident had occurred. I find that Morneau deliberately did not give Gough very much information about the incident as a way of keeping Gough engaged with him.
[85] Although Morneau “asked” Gough to come downtown and Gough agreed, I find that Gough felt as if he had little choice in the matter. That is, Gough was in the presence of two uniformed police officers who were directing him, his children had been separated from him, he was told that there had been an incident, he had little information about this incident, it was apparent that police officers were doing some sort of investigation, and he was told that the police officers wanted to talk to him downtown. Under those circumstances, I find that Gough felt compelled to do as requested by Morneau.
[86] Further, I find that Morneau treated Gough as if he were a suspect in a criminal investigation. I accept that it would be prudent for any investigating officer to talk to the spouse of a deceased person. I also accept that in this case the officers had a general duty to inform Gough of his spouse’s death. However, instead of gently informing Gough of Scanlon’s death and/or asking Gough to meet an officer at the police station who might be able to give him more information, I find that Morneau took control of Gough, kept him engaged, and directed Gough’s actions.
[87] Morneau’s control over Gough is exemplified by the fact that Morneau did a pat-down search of Gough in the public lobby of the school, and then, without any significant conversation, immediately arranged to transport Gough downtown. Further, Morneau told Gough that he would be transported downtown in Morneau’s police cruiser. I find that Morneau made it clear that Gough was not going to leave Morneau’s presence, Gough was not going to drive himself to the police station, and there would be no delay in proceeding to the police station. Still further, Morneau kept Gough isolated by not permitting Gough to speak with his friend who was waiting in Gough’s truck.
[88] Once Morneau placed Gough in the rear of the police cruiser, Gough was locked into the back seat. Clearly, once Gough was in the back seat of the police cruiser, Gough could not leave the cruiser. Thereafter, I accept that Gough had little choice but to proceed to the police station in Morneau’s cruiser. He was inevitably committed to attending the police station to speak with police investigators.
[89] In summary, I find that Morneau believed that Gough was a suspect in the criminal investigation into Scanlon’s death, and that Morneau treated Gough as if he were a suspect. In my view, if Morneau’s intention was to merely ask some general investigative questions of Gough, or to merely provide Gough with information about Scanlon’s death, Morneau would have not taken such complete and immediate control over Gough.
[90] Once Gough was at the police station, Gough continued to be treated as if he were a suspect in a criminal investigation. He was led to a small room in the police station, the door was closed, he was left alone in the interview room with Munro, and he was told that everything was being recorded.
[91] Thereafter, the questions Munro asked were very specific and were focused on Gough’s possible criminality. For example, Gough was questioned in detail about his activities on the day of Scanlon’s death, on the type of clothing he was wearing during the day, on the vehicle that he was driving during the day, on the routes that he had taken, and as to whether his friend DeWitt could corroborate his activities. In my view, the questions put to Gough were not general investigative questions that were designed to elicit routine information, but they were pointed questions focused on the possibility that Gough was responsible for Scanlon’s death.
[92] Furthermore, during the course of the first interview, Munro in effect confirmed that Gough was a suspect in Scanlon’s murder. Munro told Gough that if a person dies, police officers will “look to the other spouse” as a potential cause of that death. Thus, in a subtle way, Munro informed Gough that police suspected that, because he was Scanlon’s spouse, Gough may be responsible for her death.
[93] In addition, during the interview, Munro requested Gough’s co-operation in examining his truck and viewing Gough’s Facebook account so that he could “eliminate” Gough. Again, this implied that Gough was a suspect in Scanlon’s death, and that Munro was seeking information so that he could eliminate Gough as a suspect.
[94] Still further, when Munro requested Gough’s co-operation, the requests themselves implied that Gough was a suspect. In addition to the requests to examine the truck and view the Facebook account, Munro asked for Gough’s permission to take Gough’s clothing and have it examined. These types of requests were very specific to Gough, and were not general investigative questions.
[95] For all of these reasons, I find that, by the time the first interview had commenced, the police officers suspected that Gough was responsible for the unlawful death of Scanlon and treated him as if he were a suspect. Moreover, I find that Munro conducted the first interview as if Gough were a suspect in a criminal investigation.
[96] The next factor is whether Gough was aware of the jeopardy that he was facing at the time of the first interview. By the start of the first interview, I find that Gough had not been made aware that there was a criminal investigation of any kind, although he may have suspected it because of the manner in which he was treated. More significantly, by the start of the first interview, Gough had not been informed that Scanlon had been injured or hurt; he had simply been informed that there had been an incident. He was already in the interview room with Munro when Munro informed him that Scanlon was dead. Thus, I do not accept that Gough had been informed of the jeopardy that he faced by the time he started the first interview.
[97] As discussed in the case law, when an accused person is a suspect in a criminal investigation, it is prudent that a police officer caution him/her to ensure that the accused is aware of the jeopardy that he/she is facing, that the accused is aware that he/she has a right to not speak with the officer, and that the accused is aware that he/she has a right to consult with a lawyer. This caution should be given to any accused who is a suspect in a criminal investigation before the accused provides a statement, so that he/she may voluntarily choose whether to speak or not speak with the officer.
[98] In the present case, no caution was provided to Gough. The only brief caution given to Gough was by Gordon at the school before Morneau’s arrival. At that point, Gough clearly had not been informed that he was in jeopardy, and had not been asked to speak with the investigators downtown. Thus, in my view, that caution was insufficient to properly inform Gough of his rights regarding speaking to an investigator downtown.
[99] The next factor on the voluntariness issue is whether Gough was free to leave. The Crown relies on the fact that Gough was left unattended in the lobby of the police station for a few minutes before he spoke with Munro, and on the fact that Munro informed Gough early in the first interview that he was free to leave. In my view, both of those facts have little influence on the voluntariness of Gough’s statement.
[100] By the time Gough was left in the police station lobby, he had been separated from his children, publicly searched, isolated from his friend DeWitt, separated from his own mode of transportation, and locked in the back seat of the police cruiser. Thus, Gough had been placed on an inevitable path toward speaking with police officers at the police station. I find that there is great doubt, from a psychological perspective, as to whether Gough believed that he was able to leave the police station prior to the interview.
[101] Further, Munro’s statement to Gough that he was free to leave after he was in the police interview room rings hollow. By then, Gough had been controlled by police officers for most of the previous hour. He had been directed into an interview room and left alone in the room with Munro, with the door closed, and video equipment recording. Gough would have reasonably felt he had no choice but to remain in the room.
[102] The final factor in the voluntariness issue relates to Gough’s emotional state at the time of the first interview. Gough was not informed of Scanlon’s death until he was in the interview room and the video equipment was recording. The video recording clearly shows that Gough was quite upset and he broke down almost immediately after Munro told him about Scanlon’s death. Under the circumstances, Gough’s reaction was predictable.
[103] I must consider why the police officers chose not to tell Gough anything about Scanlon’s death until he was placed in an interview room, with the door closed, and the video equipment running. In my view, the police officers could have chosen a more sensitive way to tell Gough about his spouse’s death. That is, there was no investigative reason to record Gough’s reaction to the news and then immediately start to question him.
[104] I find that the officers took this approach for two distinct reasons. First, the officers chose to tell Gough about Scanlon’s death while he was in the interview room so that Gough’s reaction could be recorded, and perhaps used against him. In my view, this supports my finding that the police officers suspected that Gough was responsible for Scanlon’s death.
[105] Second, I find that the officers chose to disclose Scanlon’s death in this way so that Gough would be distraught at a time when a police officer could immediately begin to question him. That is, the officers hoped that the news of Scanlon’s death would render Gough emotionally vulnerable and perhaps make him more co-operative in answering police questions. This second reason for informing Gough about Scanlon’s death in this way goes to the voluntariness issue.
[106] Clearly, Gough was upset by the news of Scanlon’s death. Once he was informed of Scanlon’s death, he was not permitted any time to recover emotionally. Instead, Munro immediately launched into very specific questions about Gough’s possible involvement in a crime. Accordingly, in my view, there is some doubt as to whether Gough’s emotional state would permit him to be able to choose whether or not to speak to the police officer.
[107] Considering all these factors, I find that the Crown is not able to prove beyond a reasonable doubt that Gough’s first statement was made voluntarily. Therefore, I find that the first statement made by Gough is not admissible at the trial.
B. The Charter Application
[108] Given my finding on the voluntariness application, it is not mandatory for me to consider the Charter application. However, I propose to deal with the Charter application in the alternative. Accordingly, if I am incorrect in my finding on the voluntariness issue, in the alternative, I find that Gough was detained by police as of the time that Morneau took control of him at the school.
[109] My analysis of the detention issue is very similar to the preceding analysis of the voluntariness issue. Specifically, I have already found that Morneau’s intention was to go to the school, retrieve Gough, and take him downtown to speak with police investigators. Thus, I find that Morneau intended to detain Gough. That is, Morneau intended to take such control over Gough that Gough would feel as if he had no choice but to accompany Morneau.
[110] Moreover, upon his arrival at the school, Morneau executed his plan to control Gough. He did not provide Gough with very much information about the incident that had occurred as a way of keeping him engaged, he kept Gough separated from his children, he conducted a pat down search of Gough, he did not permit Gough to speak with his friend, he did not permit Gough to go to his truck, he told Gough that he would be taken to the police station in Morneau’s cruiser, and he locked Gough in the back seat of the cruiser.
[111] I acknowledge that Morneau’s control over Gough was in the form of a request for Gough to go downtown, and that Gough agreed to that request. However, as Doherty J.A. wrote R. v. Wills (1992), 7 O.R. (3d) 337, 70 C.C.C. (3d) 529, at p. 541 (C.A.), “It would be naive to equate most requests made by a police officer with similar requests made by one private individual to another.”
[112] In this case, given the presence of two uniformed officers, the apparent incident that had occurred, and the way in which Gough had been treated, I find that Gough felt as if he had no choice but to agree to accompany Morneau in his cruiser to the police station. Therefore, I find that the accused has proved on balance of probabilities that Gough was detained by Morneau when Morneau took control of Gough at the school.
[113] Again, the Crown relies on the fact that Gough was left unattended in the lobby of the police station, and on the fact that Munro told him that he was free to leave. As discussed earlier, I find that these two factors had little psychological impact on Gough. I repeat that Gough was placed on an inevitable path toward speaking with a police officer at the police station when he was controlled and directed by Morneau at the school. From that point onward, from a psychological perspective, he was under police control.
[114] For these reasons, I find in the alternative that Gough was detained by police. Therefore, pursuant to the Charter, Gough was entitled to be informed promptly of the reasons for his detention. Gough also was entitled to be informed of his right to retain and instruct counsel without delay, and informed that he had a right to remain silent. The failure of the police officers to so inform Gough constitutes a breach of s.7, s.10(a), and s.10(b) of the Charter.
[115] The Crown concedes that a breach of the Charter prior to the first statement should result in the statement being excluded from the evidence pursuant to s.24(2).
Conclusion
[116] In summary, I find that the Crown is unable to prove that the first statement made by Gough to Munro on February 23, 2015, was made voluntarily. In the alternative, I find that the accused has proved that there has been a breach of s.7, s.10(a) and s.10(b) of the Charter. For both of these reasons, the first statement is inadmissible at trial.
[117] Regarding the second statement made by Gough to Thibert on March 16, 2015, the Crown concedes that the second statement references the first statement to such an extent that if the first statement is inadmissible, then the second statement must also be inadmissible. Accordingly, I find that the statement given by Gough to Thibert on March 16, 2015 is also inadmissible.