COURT FILE NO.: CR-16-3-212 DATE: 20170421

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN - and - K.M.

Counsel: Brian Moreira, for the Crown Jeff Mazin, for the accused

HEARD: March 13-15, 2017

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

K.L. Campbell J.

Pre-Trial Ruling Voluntariness of Police Interview Statement

A. Introduction

[1] The accused currently faces an indictment that charges him with two counts of sexual assault and two counts of sexual touching. Essentially, the Crown alleges that the accused, over a lengthy period of time, between January 1, 2000 and June 1, 2012, sexually abused his two oldest biological daughters by sexually fondling them in their family residence.

[2] In late April of 2015, the accused returned to Toronto from a lengthy stay in Trinidad. Having learned of these charges, and about an outstanding warrant for his arrest, the accused voluntarily surrendered himself to members of the Toronto Police Service (TPS) at the 43 Division station on the morning of April 29, 2015. Once his identity and the outstanding charges were confirmed, the accused was arrested and immediately advised of his right to counsel, as required by s. 10(b) of the Canadian Charter of Rights and Freedoms. When the accused expressed his interest in speaking with duty counsel, a call was placed to the duty counsel “hotline” to facilitate his access to free legal advice. When duty counsel subsequently returned the call, the accused was permitted to privately consult with counsel.

[3] Later that day, for slightly more than an hour, the accused was interviewed by Det. Cst. Gibson of the TPS, who had volunteered to speak to the accused. The entire hour-long interview was recorded on video. At the outset of the interview, the officer advised the accused of his right to remain silent and confirmed his understanding of this right. During the course of this interview, the accused repeatedly indicated, on a number of different occasions, that he did not want to make any statement to the police, but when the questioning continued, he repeatedly denied the allegations that he had ever sexually touched his daughters, and offered some explanation as to how these false and fabricated allegations might have come to be made against him. The accused also provided considerable background information about his family, his children, his employment history, and the sleeping arrangements in the family residences over time. In terms of its content, this police interview statement was entirely exculpatory.

[4] The Crown seeks to establish the admissibility of this police interview statement, at least for potential cross-examination purposes, and contends that it was provided voluntarily by the accused and in compliance with his constitution rights under the Charter of Rights. The accused contends, however, that the Crown has failed to establish beyond a reasonable doubt that the statement was provided voluntarily, and seeks its exclusion.

[5] At the outset of the trial, a voir dire was conducted into the admissibility of this interview statement. The Crown called the only three police officers who were involved with the accused at 43 Division on the morning of April 29, 2015. No defence evidence was called on this voir dire proceeding.

[6] At the conclusion of argument on the voir dire, I advised the parties that I had concluded that the video recorded police interview statement provided by the accused was admissible, as I was satisfied beyond a reasonable doubt that it was provided voluntarily, and was not obtained in violation of his right to remain silent as guaranteed by s. 7 of the Charter of Rights. I also advised the parties that I would subsequently provide reasons in support of this conclusion. These are those reasons.

B. The Factual Background

[7] On the morning of April 29, 2015, Det. Cst. Courtney Howell was working at the 43 Division in the “warrant” office. She received a call from the “front desk” advising her that the accused was in attendance there in relation to some outstanding charges. Det. Cst. Howell then confirmed that there was a warrant outstanding for his arrest.

[8] Det. Cst. Howell then met briefly with the accused and confirmed his identity. She advised him that he would be arrested and handcuffed, and Det. Cst. Howell then proceeded to do exactly that. The accused was arrested at 7:52 a.m. Det. Cst. Howell immediately advised the accused of his right to counsel, reading the details of the necessary informational component of s. 10(b) of the Charter of Rights from her police memo book. The accused expressed his understanding of this right, and asked to be able to consult with duty counsel. After the accused was paraded before the officer-in-charge of 43 Division, Det. Cst. Howell placed a phone call to the duty counsel “hot line” and left a message seeking a return call. She then turned the accused over to Det. Cst. Robert Anderson of the Youth and Family Violence Bureau.

[9] Det. Cst. Robertson met briefly with the accused in an interview room to complete the processing and paperwork in connection with his arrest, obtaining some basic background or “tombstone” information from him in anticipation of his upcoming judicial interim release hearing later that day. This took just a few minutes. Subsequently, at 8:39 a.m., duty counsel returned the earlier call by Det. Cst. Howell, and Det. Cst. Robertson placed the accused in a room so that he could consult privately with duty counsel over the telephone. At the conclusion of this discussion with counsel, the accused was returned to an interview room.

[10] On April 29, 2015, Det. Cst. Daryl Gibson was also working in the Youth and Family Violence Bureau of 43 Division. He volunteered to interview the accused. All of his interactions with the accused were recorded on video. The interview lasted approximately one hour and five minutes, commencing at 9:08 a.m., and ending at 10:13 a.m.

[11] The video recording reveals that the following preliminary matters took place between Det. Cst. Gibson and the accused at the outset of the interview process:

• The officer provided the accused with some water for him to drink. Later, the officer confirmed that the accused had been offered some food. In this regard, the accused indicated that he was “okay.”
• The accused indicated his understanding that he was under arrest, and acknowledged that he had already spoken to duty counsel, had been given some advice, and that he had understood the information that counsel had provided to him. The officer made it clear that he was not soliciting any information about what he had been told by duty counsel, but rather was only seeking to ensure that the accused understood whatever he had been told.
• Det. Cst. Gibson also reminded the accused about the nature of the sexual offences for which he had been arrested and, again, fully and properly advised him of the informational component of his right to counsel as required by s. 10(b) of the Charter of Rights. The accused expressed his understanding of the charges against him and his right to counsel.
• The officer also explained to the accused his right to remain silent. More specifically, Det. Cst. Gibson advised the accused that he was “not obliged to say anything” unless he wished to do so, but that whatever he said might be given in evidence. The accused twice expressed his understanding of this right.
• When he was asked whether he wanted to say anything in answer to the charges, the accused replied “No sir.” The officer responded “Okay, fair enough.”
• The officer then explained that they were being recorded, and he pointed out the whereabouts of the camera and the microphone. The accused told the officer that duty counsel had advised him not to agree to any sort of recording. The officer simply said “okay,” but the recording of the interview continued.
• The officer then provided the accused with the “secondary caution,” indicating that if he had spoken with any other police officer about this matter, it should not influence him in making any statement. The officer explained that if the accused had been threatened or promised something, he should disregard that, and only speak to him should he “choose” to do so. The accused expressed his understanding of this caution, and denied that anyone had threatened him or promised him anything.

[12] The interview began more substantively with Det. Cst. Gibson asking the accused how he came to attend the police station that day. The accused explained when and why he had travelled to Trinidad, how he had heard of the allegations and the arrest warrants against him, and how he had corresponded with a couple of police officers by email. During this discussion the accused indicated that he was “tired” in that he did not sleep well the previous night, and that he had taken a medication called “Paxil” for his anxiety and depression, but that he felt “okay.” The interview continued for approximately 16 minutes, during which time the accused, in response to questions by the officer, talked about his employment history, getting married, his family history, his children, and the involvement of the Children’s Aid Society in his family. During this discussion, the accused indicated that it was “very painful” for him to have these kinds of allegations made against him.

[13] At approximately the 16 minute mark in the interview, the accused said: “… you do realize that I’m giving a statement and I shouldn’t be. The officer replied that he was just asking him about his family and said that it was “up to [him]” whether or not he told him about himself.

[14] Following this exchange Det. Cst. Gibson continued his questioning, and the accused continued to answer his questions. In the discussion that followed, the accused provided further information about his children, his relationship with them, his marriage and some of his problems with his wife. The accused also indicated that he had previously provided a “ton” of information to the police, which information should provide the officer with everything he needed to know.

[15] At approximately the 23 minute mark of the interview, after telling the officer about how his wife would hit him, causing the intervention of the Children’s Aid Society, the accused said “… I don’t want to say anything more.” The officer replied that perhaps it was too “painful” to discuss, and indicated that he understood. The accused then continued to emotionally discuss his “21 year … nightmare” of a marriage, and how he was the main trusted caregiver of his children. He said that everything he wanted to say, and everything that the officer needed to know, was in his extensive email correspondence with the other police officers. The officer then asked the accused about his family’s residential history, and the accused provided the requested “timeline” as to where they lived, and for how long they lived in each residence. The accused then said: “I’m telling you that I was not supposed to give a statement, and you’re getting a statement out of me. Sir, this is the third time I’m telling you that.”

[16] Thereafter, Det. Cst. Gibson continued to engage the accused in a dialogue and, in response to questions, the accused provided further details about “sleeping arrangements” in the family residences, his work history, how he cared for his children, his relationship with his wife, why he had moved back to Trinidad, the death of his grandmother, and the stress of his family issues. During this portion of the interview, the accused explained that he had come back to Canada because he needed to deal with the outstanding warrant for his arrest, and return to his job. He expressed the view that his children had to know the “truth” about him, and he noted that these painful allegations against him “have to be proven in court,” and the court must “hear two sides of a story before a decision is made.” The accused briefly cried when he spoke of the “painful allegations” against him, and how his wife was “very deceitful” and had falsely accused him of violence against her, while he was actually the “safe parent in the home.”

[17] During this portion of the interview, the accused also told Det. Cst. Gibson about how an adult friend of his wife had told their oldest daughter (one of the complainants in this case) about how she had been raped by her father, but that her mother had “protected him.” This family friend later told the accused that she could tell, “by the look on [her] face” when hearing this story, that his oldest daughter was “interfered with too” and it needed to be reported. The accused commented that, knowing his oldest daughter, she probably just had a “sick look” on her face from hearing such a story. The accused then provided the officer with all of the contact details about this adult friend of his wife, and suggested that “this is where … this allegation came from,” because this adult friend of his wife had “projected her illness onto” his oldest daughter.

[18] As Det. Cst. Gibson began to talk to the accused about the police investigation in this case, and the involvement of the Children’s Aid Society, and how some of his children were interviewed, the accused indicated how his second oldest daughter (the second complainant in this case) had told him that the Children’s Aid Society “caseworker” had suggested to her that if the oldest daughter had been “interfered” with sexually, why wouldn’t she also have been “interfered with.” The accused repeatedly claimed that this was “suggestive” questioning by the caseworker. The accused also indicated that his oldest daughter became “angry” after “the family broke up,” and when he disciplined her by taking away her phone, and she was “influenced” by her mother.

[19] It was at this point, nearly 43 minutes into the interview, that the accused asked to end the interview. More particularly, the accused said: “I would like to, if you don’t mind, can we end this?” The officer responded, “… no, I don’t mind,” but he also indicated that he wanted to ask a few more questions, just to understand more about what had “gone on.” The accused replied that “duty counsel” had told him “not to give a statement,” and this was the “fourth time” that he said this to the officer, and yet “you still manage to get … [a] statement out of me.” The officer responded that he appreciated that, and that this was the accused’s “right,” and he appreciated that the accused understood his rights and that is “important.” The accused then said that he did not know why the officer kept “going on” as he had been told that the investigation was “already closed.” The officer responded that the investigation was “not closed” but rather was “always ongoing.” When the accused asked why he was going to go before a judge if the police were “still” investigating, the officer said that he was going before a judge to “answer to the charges.” Once he understood that the investigation was still continuing, the accused said “okay,” and Det. Cst. Gibson continued his questioning.

[20] The officer then addressed the allegations more directly, and asked the accused more specifically about the sleeping arrangements in the family residence. Det. Cst. Gibson asked about whether there was ever at time when he would sleep in the “same bed” as his daughters, where they might have been “confused” about something like this happening. The accused indicated that from the time his children were born, until the time that he left for Trinidad, he never slept in the same bed as his children, or even lay down next to them in bed. The accused explained that, when he and his wife would lay on their bed to watch movies on Sunday night, their kids would come and “cuddle up next to mom.” When the officer indicated that he was just trying to “understand where this might have come from,” the accused suggested that it came from his wife’s friend “projecting her illness … of what her father did to her … onto my [oldest] daughter … and destroying my family.” In response to further questions, the accused denied that he had ever gone into his daughter’s bedroom and lay down in her bed, or lay on the couch with her.” He agreed that he had never done these things because he was “conscious of things like this” – “very much so.” The accused then indicated that he had “never done any of these allegations of sexual interference, or sexual anything.” He was just “not like that.” The accused noted, however, that a warrant had been issued for his arrest, he was going before a judge for bail, and “this information may be used against me.”

[21] In response to further questions, the accused denied that he ever lay down in bed, or on the couch, with either of his two oldest daughters (i.e. the two complainants). He explained that when he worked, he would come home from work and fall asleep on the recliner, and when he was a “stay at home dad” he cared for all of his children when they were “babies” by burping them, diapering them, massaging them with oil, and rocking them to sleep, but he never had any contact with them of a “sexual nature.”

[22] When the officer asked him about his two oldest daughters coming forward and making the allegations against him, the accused described that as “devastating” and “painful,” and he explained that he wanted to “go through the process of the judicial system,” as he came back to Canada to his “life” and his “job,” and it was “important” for him to “clear [his] name,” and he wanted to “go to court and be able to start the process.”

[23] When he was asked why both of his daughters would come forward with these allegations, the accused again mentioned that his second oldest daughter had told him that the Children’s Aid Society “caseworker” had suggested to her that if the oldest daughter had been “interfered” with sexually, why wouldn’t she also have been “interfered with,” and the accused maintained that this was “suggestive.” When the officer mentioned that both of his oldest daughters had actually come to the police station and gone on camera to make their allegations against him in the presence of detectives, the accused indicated that he did not know why they did that, and it was “painful,” but he had come back from Trinidad to “clear [his] name.”

[24] At nearly the 52-minute mark of the interview, after providing some additional information about how he cared for his children when they were babies, and when they were “potty-trained,” the accused asked: “So, … are we finished?” The officer replied that he was just going to get some “paperwork,” and he asked the accused if he wanted another bottle of water. The accused declined more water, but asked the officer: “You’re not going to want me to sign anything?” The officer indicated that he was not going to ask him to sign anything, but said that he would leave on the video recording device. The officer then left the interview room for a couple of minutes.

[25] When he returned to the interview room, Det. Cst. Gibson asked the accused, if he could tell his two oldest daughters something, what would he like to tell them? The accused responded: “Speak the truth.” The accused then asked: “… can we finish this, now? … because the investigation is closed.” The officer replied that the investigation was not closed, and indicated that he had learned a lot about him. This took place just past the 55 minute mark of the interview.

[26] Det. Cst. Gibson then asked the accused if he was telling him that everything that his two oldest daughters were saying was “a lie.” The accused replied that he did not know what his daughters had told the police. When the officer asked him if he would like him to “read the allegations” to him, the accused replied “yes.”

[27] The officer then read the allegations that were made by the oldest complainant, essentially, that at both of their residences, and over many years, on a regular basis, the accused would lay down beside her on the bed and rub her chest area, fondle her breasts (after undoing her bra), and rub and fondle her buttocks, and her vagina inside her pants but over top of her underwear. In response, the accused claimed that these allegations were “not true” and a “total fabrication.”

[28] Det. Cst. Gibson then asked the accused if he could “go over the last one,” and the accused said “sure.” The officer then reviewed the allegations that were made by the accused’s second oldest daughter, essentially, that when she was approximately seven to eight years of age, she shared a bedroom with the accused and her older brother and younger sister, and the accused would lay behind her, hug her, kiss her on her back and shoulders, and fondle her buttocks, hips and waist area. In response, the accused claimed that this was a “total fabrication.”

[29] After hearing the details of these allegations, the accused indicated that these are “very serious” and “life-altering” allegations. The officer agreed. The officer then noted that the accused had told him that he had “never been in the same bed as them.” The accused agreed that he would not have been in bed with them, “not [at] that age, not those big age[s].” The accused then asked if he could “tell this to [his] defence lawyer.” The officer responded: “Of course you can, absolutely.”

[30] The accused then indicated, after the interview had been unfolding for over one hour and two minutes, that the officer was “going on,” and this was the “sixth time” that he had told the officer that he had been “advised by duty counsel not to say anything” to the police, and yet the officer was “going on about it … under the pretense that you’re trying to learn about [him].” The accused indicated that the officer had his “whole information” in his email correspondence, and he just wanted to “go to court and get the process going on.” The accused indicated that he found what he had heard “disgustingly sickening” and has “destroyed relationships,” but that he would like the “privilege” to “go through the judicial system” where he will “face [his] accusers in court” when that time comes.

[31] When the officer asked whether the allegations were something that could be a “mistake,” the accused replied that it “never happened, sir.” When the officer suggested that, perhaps, he was lying in bed with his daughters, but thought it was his wife, the accused did not reply to this suggestion, but asked “… can we discontinue this?” The officer then replied that he had “the right, legally, to ask you these questions.” Det. Cst. Gibson then reminded the accused that he had earlier read him his rights, that included his “right to remain silent,” and that he had expressed his understanding of that right, and had spoken to his lawyer about that. The officer then indicated that he was “glad” that the accused understood his rights, and that was “important” to the officer, but that he had “these questions” for him.

[32] Det. Cst. Gibson then returned to his question, about the possibility that the accused had been lying in bed, tired, and thought that he was with his wife, but he was with his daughters instead. The officer indicated that, if that was the case, “that makes a difference.” The accused then repeatedly told the officer that he was “putting him on trial right now,” and he said that he would like to go through “the fair judicial process.” When the officer asked, again, if it was “possible that something like that could happen,” the accused replied: “I have the right to remain silent, and that did not happen.” The accused asserted that he had “the right” to remain silent, and he knows “[his] right.” The accused further indicated that he had told the officer “six times” that he was “not supposed to say anything.” The officer responded that he appreciated that (i.e. getting to know the accused), and said that the accused would be going “off to court.” The officer stated that he had learned that the accused had “never slept in beds” with his daughters and that the allegations that he did were “a lie.” The accused clarified that they would watch television together with their mother.

[33] At that point, Det. Cst. Gibson ended the interview, thanking the accused “very much.” The officer asked the accused if he wanted another bottle of water, or whether he wanted to use the washroom facilities. The accused said that he wanted to use the washroom. The officer then asked the accused if there was anything else he would like to say, and the accused said “no.” The accused explained that this was “painful,” in that he had “created” his daughters, and he had “cried” when he heard “all this.” The accused then reiterated that he wanted to “go through the fair judicial process and face [his] accusers. The video recording device was then turned off, terminating the interview.

C. Analysis

1. The Applicable Legal Principles

[34] Generally speaking, the modern and expansive view of the “voluntariness rule” requires the Crown to prove, beyond a reasonable doubt, that the statement by the accused: (1) was not the result of any “fear of prejudice or hope of advantage exercised or held out by a person in authority;” (2) was not the product of a coercive “atmosphere of oppression” manufactured by the police; (3) was the product of an “operating mind;” and (4) was not the result of “police trickery” that is “so appalling as to shock the community.” The issue of “police trickery” is a distinct inquiry given that its specific objective is “maintaining the integrity of the criminal justice system.” See R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 24-27, 47-71; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paras. 31, 35; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 11-15.

[35] The constitutional right to remain silent, which is protected by s. 7 of the Charter of Rights, and which is rooted in large part in the voluntariness rule, is designed to ensure that any person who is in the power or control of state authorities has the right to “freely choose” whether to speak to the police or remain silent. It is reflected in the usual caution that is administered to a suspect before being asked whether he or she wishes to make a statement to the police. Importantly, in the context of a police interrogation of a detained person, where the questioner conducting the interview is known by the accused as a person in authority, the voluntariness rule and the right to remain silent are “functionally equivalent,” and the “confessions rule effectively subsumes the constitutional right to silence.” See R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 164-166, 173, 175-178, 181-186; R. v. Broyles, [1991] 3 S.C.R. 595, at pp. 605-607; R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, at paras. 41-52, 55-56; R. v. Singh, at paras. 8, 23-25, 31, 34, 37-39; R. v. Paterson, 2017 SCC 15, at paras. 14-16.

[36] The question of voluntariness, just like any distinct inquiry under s. 7 of the Charter in relation to the right to remain silent, focuses upon the conduct of the police and its effect upon the suspect’s ability to exercise his or her free will. The test is an objective one, but the individual characteristics of the accused are clearly relevant considerations in the application of this objective standard. See R. v. Singh, at para. 36.

[37] The right to remain silent does not mean, however, that individuals also have the right not to be spoken to by police officers who are engaged in the investigation of crime. As Charron J. stated, in delivering the judgment of the majority of the Supreme Court of Canada in R. v. Singh, at para. 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.

[38] Accordingly, the right to remain silent does not impose any correlative obligation upon the police to stop questioning a detained suspect whenever he or she clearly asserts the right to silence. The suspect may be “the most fruitful source of information” for the police investigation. Provided that the suspect’s rights are adequately protected, including his or her “freedom to choose whether to speak” to the police or remain silent, it is in society’s interest to permit the police to “attempt to tap this valuable source” of information. See R. v. Singh, at paras. 42, 45-46. As McLachlin J., as she then was, stated in R. v. Hebert, at p. 184, there is “nothing in the rule to prohibit the police from questioning an accused in the absence of counsel after the accused has retained counsel,” as presumably counsel will inform the accused of his or her right to remain silent, and “police persuasion” short of denying the suspect the right to choose whether to speak or remain silent, or depriving the accused of an “operating mind,” does not breach the right to remain silent guaranteed by s. 7 of the Charter. See also R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 25-26, 29, 58, 62-63.

[39] This does not permit the police to simply “ignore” a detained individual’s freedom to choose whether or not to speak to the police. As Charron J. stated in R. v. Singh, at para. 47, “[p]olice persistence” in continuing to interview a detained suspect, despite “repeated assertions” by the suspect that he or she 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 Charron J. elaborated, at para. 53, such situations are “highly fact-specific” and trial judges are required to consider all of the relevant factors in determining whether or not the statement by the accused is voluntary. In some cases, the “continued questioning by the police in the face of the accused’s repeated assertions of the right to silence” will justify the conclusion that the conduct of the police “denied the accused a meaningful choice whether to speak or to remain silent.” Of course, the sheer “number of times” the accused asserts his or her right to remain silent to the police interviewer is one of the relevant factors that must be considered, but it is “not in itself determinative.” The “ultimate question” is whether “the accused exercised free will by choosing to make a statement” to the police. See also R. v. Otis (2000), 151 C.C.C. (3d) 416, 37 C.R. (5th) 320 (Que.C.A.), at paras. 50, 54, leave denied, [2001] 1 S.C.R. xvii; R. v. Roy (2003), 180 C.C.C. (3d) 298, 15 C.R. (6th) 282 (Ont.C.A.), at paras. 7-13; R. v. Bohnet, 2003 ABCA 207, 339 A.R. 175, at paras. 11-16; R. v. Edmondson, 2005 SKCA 51, 257 Sask.R. 270, at paras. 9-11, 31-34, leave denied, [2005] S.C.C.A. No. 273; R. v. Borkowsky, 2008 MBCA 2, 225 Man.R. (2d) 127, at paras. 32-48.

2. The Application of these Principles in the Present Case

[40] As I have already indicated, I have concluded that the video recorded police interview statement provided by the accused to Det. Cst. Gibson was admissible, as I am satisfied beyond a reasonable doubt that it was provided voluntarily and was not obtained in violation of his right to remain silent as guaranteed by s. 7 of the Charter of Rights. In reaching this conclusion I have taken into account all of the circumstances of this case, including all of the following factors and considerations:

• No Threats or Promises: The evidence of the three police officers, viewed collectively, in conjunction with the video recording of the interview statement, established that, in all of their interactions with the accused on the morning of April 29, 2015, there were never any promises, offers, threats, or inducements of any kind, express or implied, provided to the accused by any person in authority.
• No Cognitive or Linguistic Issues: The accused appeared to have a good comprehension of the English language, knew what was said to him by the various police officers, and was fully cognizant of what was happening at the 43 Division police station. The accused was responsive to the questions that were asked of him, and seemed intelligent and articulate in his answers and comments.
• No Alcohol or Drugs at Play: There was no evidence that the accused was under the influence of alcohol or any illicit drugs. The accused did say, however, that he was tired and had taken a prescription medication (i.e. Paxil) to treat his anxiety and depression. I am satisfied, however, that this did not cause him to make any involuntary statements that were not the product of a fully operating mind. There is simply no evidence of any discernible mental confusion or intellectual problems on the part of the accused.
• No Mistreatment: The accused was not deprived of food or drink. Indeed, he was offered both food and water, and provided with water. Further, the accused was not mistreated in any way by any police officer. Indeed, the accused was treated throughout with courtesy, respect and dignity. The importance of his rights were confirmed by the actions and comments of the police officers who were in contact with him on April 29, 2015.
• Provided With Right to Counsel: The accused was promptly and fully advised of his right to counsel in accordance with the dictates of s. 10(b) of the Charter, and the accused was permitted to consult privately with duty counsel before being asked any questions about the alleged offences.
• Advised of Right to Remain Silent: The accused was properly advised of his right to remain silent, cautioned about making statements to the police and their subsequent potential evidentiary use, and was told that it was up to him whether he chose to make any statements to the police.
• The Accused Understood His Rights: The accused not only expressly acknowledged that he understood his constitutional rights when he was advised of those rights, but he also said things during the course of the interview process itself that showed that the accused fully understood his Charter rights.
• No Atmosphere of Oppression: The interview was only little more than an hour long in total. Accordingly, it was not a lengthy interrogation. As the video recording reveals, during the entire course of that interview, the accused was never subjected to any harsh, adversarial, aggressive, or overbearing interrogation techniques or questions. There was nothing that might suggest any atmosphere of oppression.
• No Tricks by the Police: Det. Cst. Gibson did not try to trick the accused into speaking to him. The accused was not provided with any false or exaggerated claims about the nature and extent of the case against him. He was simply provided with short summaries of the allegations that had been made by the complainants. Indeed, the accused was not even provided with these summaries of the allegations until near the end of the interview, and only after he was asked if he wanted to hear the specifics of the allegations, and he confirmed that he wanted to hear the allegations.
• Accused Had an Operating Mind: While the accused became emotional a couple of times during the interview, it was apparent that his emotional condition on these few occasions was due simply to the topics under discussion (i.e. his two daughters were both accusing him of sexually molesting them over an extended period of time). At no point in time, however, was the accused so overcome with emotion that it might realistically be suggested that he suffered any kind of emotional disintegration, or otherwise ceased to have an “operating mind.”
• Not Deprived of His Right to Choose Whether to Speak or Remain Silent: While Det. Cst. Gibson continued to question the accused after he had, on a number of occasions, expressed an interest in remaining silent and not providing the officer with a statement, the accused, in fact, continued to answer the questions posed to him. However, the accused clearly realized that this was precisely what was happening. On a number of occasions, the accused expressly mentioned that even though he had been advised not to give the police a statement, the officer was getting him to provide a statement. In short, he realized that while he had the right to remain silent, he was not, in fact, exercising his right by remaining silent. In my view, having regard to all of the circumstances of this case, the accused was not deprived of his right to freely choose whether or not to speak to the police. Rather, knowing full well that he had the right to remain silent, the accused continued to choose to speak to Det. Cst. Gibson, providing him with denials and other exculpatory statements, calling the allegations against him “total fabrication[s],” and offering his own explanations as to how these false allegations may have come to be advanced by the complainants. See R. v. Singh, at paras. 9, 12-15, 47, 53.

D. Conclusion

[41] As Charron J. indicated in R. v. Singh, at para. 53, each police interview is “highly fact-specific,” and the voluntariness of any tendered police interview statement by an accused person involves the consideration of a myriad of factors. The number of times the accused asserts his or her right to remain silent during the course of the interview is but one of the many relevant factors to be assessed. The “ultimate question” is whether “the accused exercised free will by choosing to make a statement” to the police, or whether the accused was denied a “meaningful choice” whether to speak to the police or remain silent. As I have indicated, I am satisfied beyond a reasonable doubt that the video recorded interview statement provided to Det. Cst. Gibson by the accused on April 29, 2015 was a voluntary statement and one that the accused chose to make as a result of the exercise of his free will. Accordingly, as I indicated following the conclusion of the oral argument, this statement is admissible.

Kenneth L. Campbell J. Released: April 21, 2017