CITATION: R. v. Merritt, 2017 ONSC 2449

COURT FILE NO.: CRIMJ(P) 1459/16

DATE: 20170424

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Brian McGuire and Eric Taylor, for the Crown

• and -

MELISSA MERRITT and CHRISTOPHER FATTORE

David Berg and Joel Hechter, for Melissa Merritt

Peter Zaduk and Jennifer Myers, for Christopher Fattore

HEARD: September 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29; October 11, 12, 13, 14, 17, 18, 19, 2016 in Kitchener

RULING No. 10: Admissibility of Christopher Fattore’s Post-Arrest Statement

RESTRICTION ON PUBLICATION

Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

F. DAWSON J.

[1] Christopher Fattore and Melissa Merritt were arrested on the morning of January 28, 2014. They were each charged with two counts of first degree murder. The charges arose from the deaths of Melissa Merritt’s former husband, Caleb Harrison on August 23, 2013, and Bridget Harrison, Caleb Harrison’s mother, on April 21, 2010. The accused were also under investigation for murder in relation to the death of Caleb Harrison’s father on April 16, 2009. The alleged murders all occurred in the Harrison family residence in Mississauga, Ontario.

[2] The arrests took place in Italy Cross, Nova Scotia where the two accused and six children were living in a rented home in a rural area. Caleb Harrison was the father of two of those children. A bitter custody and access battle in relation to those two children had been going on for years prior to the murder of Caleb Harrison.

[3] The arrests were conducted by members of the Peel Regional Police (PRP) assisted by members of a local detachment of the Royal Canadian Mounted Police (RCMP). The children were taken into the care of the Children’s Aid Society (CAS) at the time of the arrests.

[4] Following their arrests the accused were transported to the headquarters of the Halifax Regional Police where they were interviewed at length. Christopher Fattore was interviewed for just over 15 hours. He eventually confessed to committing the two murders he was charged with.

[5] This application deals with the admissibility of Mr. Fattore’s post-arrest statement. The admissibility of his statement is challenged on both Charter and voluntariness grounds.

[6] Mr. Fattore submits that his s. 10(b) right to retain and instruct counsel without delay was violated because at the time of his arrest he was “directed” towards exercising his rights by speaking with legal aid duty counsel. However, the main focus of his submissions is on the alleged failure of the Crown to prove the voluntariness of his statement beyond a reasonable doubt. Mr. Fattore also refers to violations of his right to remain silent as protected by s. 7 of the Charter. However, he does so exclusively in connection with his submissions on voluntariness.

[7] For reasons which I will develop, I conclude that Mr. Fattore has failed to establish that there was any violation of his s. 10(b) right to counsel.

[8] Both the length of the interview and a number of things which were said by the interviewing officer raise particular concerns about voluntariness. These factors have caused me to scrutinize the lengthy interview with great care. The entire statement is video and audio recorded. I have viewed the interview twice. I have viewed what I consider to be several particularly important portions of the interview a number of times. I have done this with the aid of a transcript.

[9] For reasons which I will also develop, I have reached the conclusion that Mr. Fattore’s confession has been proven voluntary beyond a reasonable doubt. I am satisfied that his will was not overborne by anything which emanated from a person in authority. His right to remain silent was not violated. He was aware of his rights but, for the most part, spoke freely during the interview.

[10] As Mr. Fattore explained just before he confessed, the interviewing officer had shown him a great deal of evidence. That, in part, accounted for the length of the interview. He explained how he had thought about that evidence. He said “I’ve mulled it over in my head.” I am satisfied that Mr. Fattore was in full control of his faculties and abilities and that he made a reasoned choice to confess.

[11] I have no doubt that Mr. Fattore’s decision was motivated by the hope that his confession might assist his common law spouse, Melissa Merritt, to face lesser charges so that she might be able to resume her role of mother to their children. While Det. King’s comments played to that, as earlier intercepted private communications between Merritt and Fattore show, it was an outcome considered by Christopher Fattore and Melissa Merritt during their private discussions in anticipation of their arrests.

[12] I am satisfied beyond a reasonable doubt that no quid pro quo was offered by the interviewing officer and, of overriding importance, that an assessment of the entire context in which the confession was made leads to the conclusion that Mr. Fattore made a reasoned choice to say what he did, of his own volition and without his will being overborne as a result of improper inducements or oppressive circumstances emanating from the police.

The Arrests and the Alleged Violation of s. 10(b) of the Charter

[13] This was a major investigation and the police had been planning the arrests for some time. On January 27, 2014 a team of approximately eight PRP officers travelled to Nova Scotia. They included the lead investigator, Det. Kristine Arnold; Det. Phil King, who was tasked to arrest and interview Christopher Fattore; Cst. Geraldine McNulty, who was tasked to arrest and interview Melissa Merritt and Cst. Joe Ciftci. Each of these officers testified on the blended voir dire. Christopher Fattore did not testify on the voir dire.

[14] The officers involved, accompanied by local members of the RCMP, arrived at the rural residence of the accused at 10:17 a.m. on January 28, 2014. Christopher Fattore was exiting the residence as the police were coming up the driveway. At that point Det. King approached and arrested Mr. Fattore. Det. King had a digital audio recorder with him and everything that was said during the arrest and subsequently was recorded.

[15] Cst. McNulty located and arrested Melissa Merritt. Several CAS workers began to deal with the children. The children were removed from the residence one at a time. Mr. Fattore was placed in a police vehicle not far away and could see what was happening with the children. He expressed concern about his children during his initial contact with Det. King and as his rights were read to him.

[16] The police had planned the arrests so that only the designated arresting officer would have contact with a particular accused throughout the day. While other officers were in the area, Det. King was the only officer who spoke to Mr. Fattore. Cst. McNulty was the only officer who spoke with Melissa Merritt. The plan was that King and McNulty would have no contact with each other. This plan was continued throughout the transport and subsequent interviews of the accused.

[17] The arrest plan also included providing each of the accused with a cell phone which they could use to make private calls to counsel from the back seat of a police vehicle, should they wish to exercise their right to counsel.

[18] No exception is taken to the content of the informational component of the right to counsel as put to Mr. Fattore by Det. King. After reading each component of the right to counsel Det. King asked Mr. Fattore, “What does that mean to you?” Mr. Fattore always responded in a fashion that showed he understood, despite the fact that he also asked questions about what was going on with his children.

[19] The most significant portion of the exchange for present purposes is found at pp. 3 – 5 of the transcript of the arrest recording. At p. 3 the following exchange occurs:

OFFICER: Okay. Do you have any questions about what I’ve said to you so far? Would you like to call a lawyer right now?

ACCUSED: Um, I don’t have a lawyer’s phone number.

OFFICER: Okay, that matters not. I think it is very important, Chris look at me, I’m not trying to pull the wool over your eyes, I think it is extremely important that you speak to a lawyer, okay. I understand that you don’t have a lawyer, so with that being said, I’m going to make a phone call, to the Ontario Legal Aid, so it’s a duty council (sic) lawyer, for you to speak to somebody. They are, they’ve passed the bar, they are lawyers sitting at phones, waiting to speak to someone. Okay? Do you understand that?

ACCUSED: Mhmm.

[20] Mr. Fattore did not correct anything Det. King said. I have no evidence from any source to the effect that Mr. Fattore had a lawyer or had a particular lawyer in mind.

[21] Immediately following this Det. King provided Mr. Fattore with a primary caution. He asked Mr. Fattore if he understood the caution. Mr. Fattore said it was “the same as Miranda rights … Anything I say can be used in court”. Clearly, Mr. Fattore was not so distracted by his children that he was not paying attention or did not understand what was being said to him.

[22] Det. King explained to Mr. Fattore that he could speak privately with a lawyer on a cell phone while in the back seat of a police vehicle. At 10:30 a.m. Det. King placed a call to the Ontario Legal Aid Plan duty counsel number and left a message. He received a call back from duty counsel at 10:38 a.m. Mr. Fattore then had a private conversation with duty counsel until 10:52 a.m.

[23] Mr. Zaduk submits that Mr. Fattore was inappropriately directed towards duty counsel. He submits that Mr. Fattore only said that he did not have a number for a lawyer. He did not say and was never asked whether he had a private lawyer. As such, Mr. Zaduk submits that there is no evidence that Mr. Fattore was ever given a choice. He submits that Mr. Fattore should have been asked more questions to ascertain his true wishes.

[24] Mr. Zaduk relies on the decision of Fradsham J. of the Alberta Provincial Court in R. v. McLinden, 2004 ABPC 7. That was a case in which the court found a s. 10(b) violation based on the fact that a detainee was provided with a list from which to choose a lawyer to call which was limited in nature. It was a list of local lawyers who had agreed to accept after-hours phone calls and did not contain the names of all lawyers practicing in the Calgary area. Fradsham J. found that this constituted a violation of s. 10(b) of the Charter.

[25] I am not persuaded that there was any interference with Mr. Fattore’s s. 10(b) right in the present case. The recording of the entire exchange, which I have listened to, and the transcript of that recording, indicate that the accused had good comprehension of what was happening and of what his rights were. I am satisfied from all of the evidence I heard on the statement voir dire that Mr. Fattore understood the difference between a private lawyer and duty counsel. The voir dire in relation to this post-arrest statement was conducted as part of a more extensive voir dire also dealing with the admissibility of a number of pre-arrest statements made by Melissa Merritt and Christopher Fattore. These statements were made at various points over a period of about three years. At various points the issue of legal advice or contact with lawyers came up.

[26] All of the evidence also demonstrates that Mr. Fattore was quite able to assert himself when speaking with the police. He was not passive when dealing with Det. King later in the day. During the extensive interview that followed he did not hesitate to raise his voice or assert his position. I am confident that if Mr. Fattore had his own lawyer whom he wanted to contact, or if he was not content to speak to duty counsel, he would have made that known. At no time in anything that followed did Mr. Fattore say anything to suggest that it had not been his wish to speak to and rely on the advice of duty counsel. In the totality of the circumstances, and in the absence of any evidence to the contrary, I am satisfied that when he said he did not have a lawyer’s number he was saying he did not have a lawyer. There is no hint or suggestion anywhere in any of the evidence I have heard that Mr. Fattore either had a lawyer or that he wanted to obtain advice from a lawyer in private practice.

[27] I also agree with the Crown’s submission that duty counsel provided by the Ontario Legal Aid Plan is not a second class option. Mr. Fattore was content with the advice he received. On a number of occasions during his subsequent interview he referred to that advice without expressing any dissatisfaction with it. Nor did he seek further legal advice at any time that day.

[28] I would also point out that the manner in which the police dealt with Melissa Merritt supports the conclusion that the police plan was to do what was necessary to respect counsel of choice. When Ms. Merritt said she wanted to contact her lawyer, David Berg, Cst. McNulty placed a call to Ms. Merritt’s father and allowed Ms. Merritt to have a conversation with her father to get Mr. Berg’s phone number. Ms. Merritt was then put in touch with Mr. Berg. She was also permitted to use a cell phone to have a private conversation with Mr. Berg from the back seat of a police vehicle.

[29] Mr. Fattore never indicated that he wished to speak to a particular lawyer or to a lawyer in private practice. Had he done so it seems highly likely he would have been accommodated. There is nothing in the circumstances here which raised an obligation on Det. King to ask additional questions or to go further than he did. After Mr. Fattore spoke to duty counsel and said he was satisfied with the advice he received there was no obligation on the police to take further steps: R. v. McCrimmon, 2010 SCC 36, 2010 2 S.C.R. 402; R. v. Willier, 2010 SCC 37, 2010 2 S.C.R. 429.

[30] There are two related matters I wish to briefly refer to. Cst. McNulty testified that as Ms. Merritt was finishing her phone call with Mr. Berg she advised Cst. McNulty that Mr. Berg wanted to speak to the officer. According to McNulty, Mr. Berg asked if Mr. Fattore had a lawyer. Cst. McNulty said that she believed Mr. Fattore was speaking to a lawyer at that time. This was when Det. King had exited his vehicle to allow Mr. Fattore to speak to duty counsel.

[31] Mr. Berg then advised Cst. McNulty that a colleague in his office named Christopher Assie was prepared to represent Mr. Fattore. Cst. McNulty said she would pass that information on.

[32] At 10:57 a.m. Mr. Assie called Cst. McNulty. Cst. McNulty testified that at no time did Mr. Berg or Mr. Assie advise her that Mr. Assie had been retained by Mr. Fattore or his family. I have not heard any evidence that he was. Cst. McNulty told Mr. Assie that she had passed on the information she had been given about him.

[33] Cst. McNulty testified that she could not recall to whom she passed the information. She had a phone number recorded in her notes that she believed was Mr. Assie’s. Det. King said he never received any information about Mr. Assie’s call to Cst. McNulty. Cst. McNulty testified that speaking directly with Det. King would have violated the plan of arrest which was designed to insulate them for the purposes of any later voir dire. She was sure that she did pass this information on to someone on the team.

[34] Mr. Zaduk also refers to a somewhat similar event which occurred three days later, on January 31, 2014. At that time the two accused and the police were waiting at the Halifax Airport for a flight to Toronto.

[35] Det. Arnold testified that at 10:01 a.m. she received a phone message and an email to call David Lackie, a lawyer in Newmarket, Ontario. The message indicated that Mr. Lackie had been retained by Christopher Fattore’s family and that he wanted to arrange a “face to face” meeting with Mr. Fattore. Det. Arnold testified that she called Mr. Lackie back at 10:45 a.m. He confirmed that he was retained and wanted an in person meeting with Mr. Fattore. Obviously, such a meeting could not occur until Mr. Fattore arrived back in the Toronto area.

[36] Det. Arnold testified that she advised Mr. Lackie that the police had satisfied their counsel obligations in relation to Mr. Fattore. However, she did say she would try to facilitate a phone call, but advised that due to circumstances at the airport she could not guarantee privacy. At 11:06 a.m. Mr. Lackie sent Det. Arnold an email confirming that he did not require privacy for the phone call.

[37] At the time when Mr. Lackie spoke to Det. Arnold the police were in the midst of conducting what has been referred to as the “airport play”. The police had obtained a judicial authorization to intercept the private communications of the accused. As part of their investigative plan the police orchestrated a situation where Ms. Merritt and Mr. Fattore were placed together alone in a private room while waiting for their flight. The room was equipped with hidden listening devices.

[38] Det. Arnold testified that at 11:31 a.m. she sought advice from Crown counsel. At 1:28 p.m. she contacted Mr. Lackie again and advised him to expect a call from Mr. Fattore within half an hour. She then provided Det. King with a cell phone for Mr. Fattore to use to contact Mr. Lackie. That call was placed at 1:50 p.m.

[39] Mr. Fattore does not submit that either the failure to notify him about Mr. Assie’s call or the delay in putting him in touch with Mr. Lackie amounted to a stand-alone breach of s. 10(b) of the Charter. Rather, he submits that these events demonstrate that the police were doing the minimum amount in terms of facilitating access to counsel.

[40] With respect to of Mr. Assie’s call, it would seem Mr. Assie was not retained by anyone to act on Mr. Fattore’s behalf. There is no evidence Mr. Fattore knew who Mr. Assie was or that he wanted to speak to him. Moreover, by the time Mr. Assie called, Mr. Fattore was already receiving legal advice from duty counsel. Based on the factual findings I have made, that was Mr. Fattore’s choice. In these circumstances there was no obligation on the police to put Mr. Fattore in contact with Mr. Assie.

[41] Based on the limited information I have about who Cst. McNulty passed the information about Mr. Assie’s call on to, and given the fluid nature of what was occurring at the Merritt and Fattore residence at the time of the arrest, I am in no position to attribute oblique motives to the police at the arrest scene. Overall, the evidence is inconsistent with such a finding.

[42] In terms of what happened at the Halifax Airport, I infer that Det. Arnold was concerned about interrupting the airport play, a planned investigative step. She sought advice from Crown counsel. She testified she felt Mr. Fattore would already have received advice from duty counsel about the possibility of further police efforts to intercept communications. She also took into account that Mr. Lackie wanted a “face to face” which could not occur until they returned to Ontario.

[43] As no argument has been directed to whether this was a violation of s. 10(b) of the Charter I make no finding in that regard. In the circumstances I have described, and in the absence of a finding that s. 10(b) was violated, I see this as having little probative value in demonstrating a police attitude of minimal compliance with the Charter three days earlier. I see it as a considered decision to delay contact between Mr. Fattore and Mr. Lackie until the airport play had been concluded.

[44] I also make the rather obvious point that minimal compliance with Charter requirements nonetheless constitutes compliance. This is not a s. 24(2) application where such considerations could be more significant.

[45] I conclude that Mr. Fattore has failed to discharge his burden to establish a violation of s. 10(b) of the Charter.

The Voluntariness of Mr. Fattore’s Confession

Events Prior to the Commencement of the Interview

[46] After the arrests the accused were transported from their residence in Italy Cross to the Halifax Regional Police building. The drive took about an hour and 15 minutes. Mr. Fattore was in an RCMP vehicle accompanied by Det. King. Only Det. King spoke to Mr. Fattore. A digital audio recorder was activated during the entire transport process. It was not turned off until the video recorder was activated after Mr. Fattore was placed in an interview room in Halifax. I have listened to the transport recording. A transcript is available.

[47] The police left the scene of the arrest at 11:02 a.m. They arrived at the Halifax Regional Police building at 12:19 p.m. Ms. Merritt, who was travelling in a separate police vehicle with Cst. McNulty, was taken into the building first. Mr. Fattore entered the building at 12:23 p.m. He was placed into the interview room at 12:32 p.m. The recording equipment was activated.

[48] Melissa Merritt was placed in a separate interview room. Both interview rooms were audio and video recorded. Det. Arnold and other officers were able to remotely monitor both interviews as they unfolded.

[49] Counsel for Mr. Fattore made reference to s. 503(1) of the Criminal Code during his examination of the officers who testified on the voir dire. That section provides that where a justice is available an accused who has been arrested must be taken before a justice “without unreasonable delay” and in any event within 24 hours. The applicant suggested to the witnesses that the timing of the arrests and the choice of the Halifax Regional Police building as the place to which the accused would be taken, was improperly influenced by a desire to delay commencement of the interviews to a point where it would be impracticable to take the accused before a justice until the 24 hour period had almost expired. The witnesses denied that and provided evidence about why those decisions were made. As Mr. Fattore relies on this position as part of his submissions on voluntariness I will outline the relevant evidence and make factual findings in relation to what occurred leading up to the arrests and otherwise relevant to the s. 503 issue.

[50] The original plan was to arrest both accused in the parking lot of a probation office in a nearby town. The police knew that Melissa Merritt had an early morning appointment there on January 28, 2014. Det. Arnold testified that she hoped this would minimize trauma to the children. The CAS had its office in the same building as the probation office. Det. Arnold testified the police wanted to avoid an arrest at the accused’s’ residence because it raised the potential for a barricade situation with children inside the house. She said an early morning arrest at the residence would also have been more traumatic for the children as the children would have to be “pulled from their beds”.

[51] The uncontradicted evidence is that the police learned relatively last minute through intercepted private communications that Ms. Merritt was cancelling the probation appointment. This required the police to change their plans on short notice, causing some delay. The police had to arrange for the CAS to attend the residence with transport vehicles and child seats for young children. Arrangements were made to have emergency medical services on hand. Animal control personnel had to be on hand as the accused had a number of animals on their rural property. This delayed the arrests until 10:17 a.m. I accept all of this uncontradicted evidence.

[52] During cross-examination of the officers Mr. Zaduk suggested that other towns in Nova Scotia located closer to the arrest scene had provincial court houses and police facilities capable of accommodating the interviews the police planned to conduct. In response, Det. Arnold explained why she had considered and rejected such possibilities. There were a number of considerations. She had used the interview facilities at the Halifax Regional Police building before and knew they were suitable for what the police anticipated. She said that the police facilities in the next best location were new, that the building was a “maze” and that people employed there were still learning about the building. She noted that Halifax was closer to the airport where they would have to depart from and also that a major snow storm was forecast. She stressed that this weather event was a major concern. She was also familiar with the personnel in Halifax.

[53] This evidence is all uncontradicted. It makes logical sense and I accept it. I note that saving an hour by taking the accused to a closer police station would have made no difference in the end.

[54] Cst. Ciftci testified that he made inquiries in Halifax about the availability of a justice of the peace. He was informed that a justice of the peace would be available at the Halifax Courthouse during regular business hours. He knew that in Peel Region a 1:00 p.m. “cut-off” was imposed on the police bringing new prisoners to court. He did not inquire whether that was the case in Halifax. Based on this evidence there is no basis to think that a justice of the peace was available after 5:00 p.m. In the circumstances where the police justifiably wished to interview two accused persons jointly charged with two murders and suspected of a third, it was quite unlikely that the police would reach a point where they would be required to take the accused before a justice of the peace by 5:00 p.m.

[55] In concluding submissions Mr. Zaduk conceded that this was not the strongest case for a successful argument based on s. 503 of the Criminal Code. Particularly due to my factual findings, I agree with that assessment. The length of the interview which occurred in this case calls for careful scrutiny. However, based on my acceptance of the uncontradicted evidence, I reject the suggestion that the police deliberately chose either the time of the arrest or the location for the interviews to avoid the impact of s. 503 of the Criminal Code.

[56] In reaching my conclusion I have not overlooked an exchange of emails between Det. Sgt. Randy Cowan of the PRP and Sgt. Bill Raaymakers of the RCMP Nova Scotia Major Crimes Unit. Those emails are marked as Exhibits 18 and 19. They show that on January 16, 2014 planning for the arrests was underway. Det. Sgt. Cowan wrote that, “The timing of the arrest is important to maximize our interview time so we would like to time it for approximately 1100 hrs.”

[57] Det. Arnold testified that there had been different versions of the arrest plan at different times. The one that was ultimately put in place called for an arrest at the probation office well prior to 11:00 a.m. Even after the arrest had to be delayed due to the cancellation of the appointment at the probation office it still occurred earlier than 11:00 a.m.

[58] In the circumstances, where the police reasonably had to consider the impact the arrests would have on six young children, it is difficult to see how the arrests could have been planned to take place earlier than provided for in the plan actually put into operation. In addition, I have no evidence that the quote from the email relates to s. 503 of the Criminal Code.

[59] Neither Det. Sgt. Cowan nor Sgt. Raaymakers testified on this voir dire.

The Police Interview in Overview

[60] Due to the length of the interview it is helpful to have an understanding of the nature of the interview and how it evolved before considering the specific arguments raised by the parties in relation to whether the resulting confession has been proven voluntary.

[61] The transcript of the interview is 452 pages long. The video recording of the interview is of great assistance because it reveals many things that are not captured on the printed page. In particular it shows the attitude and demeanour of Mr. Fattore and the nature of the relationship that developed between Det. King and Mr. Fattore. It demonstrates the ability of Mr. Fattore to assert his position, and to stand up to Det. King. It demonstrates the change in the tone and the dynamics of the interview after Det. King had finished presenting all of the evidence to Mr. Fattore. The process of presenting the evidence, discussing it and arguing with Mr. Fattore about whether the evidence was accurate or had the probative value Det. King attributed to it, took many hours.

[62] Some additional background and descriptive comments are of assistance to understanding the interview. First, I would mention that Mr. Fattore is a large man. There is reference in the evidence to him being six feet five inches tall and weighing 300 pounds at the time of the interview. When he was brought into the interview room Det. King commented that leg irons had to be used as handcuffs to accommodate the size of Mr. Fattore’s wrists. Mr. Fattore is considerably larger than Det. King. These were not circumstances where physical intimidation of the accused by the interviewing officer was a factor.

[63] Second, the police had been lawfully intercepting the private communications of Ms. Merritt and Mr. Fattore for approximately two months. Listening devices had been placed in their residence. The police were also intercepting their computer based communications. The police had also provided information about the investigation to Merritt and Fattore via email using various ruses in order to stimulate conversation between them. Some of the information supplied was about DNA and other evidence the police had gathered. Some of the information was accurate and some not.

[64] Transcripts of excerpts of some of the intercepted communications have been filed on this application. Portions of those transcripts support the conclusion that the accused were contemplating being arrested and charged with murder and that they were likely researching information about DNA evidence. The transcripts also show that Melissa Merritt told Christopher Fattore that the evidence pointed at him not her, and that their children needed a parent.

[65] The Crown relies on this background and submits that Mr. Fattore was prepared for his interview. He had arguments and theories at the ready to counter the evidence he thought the police had. The Crown submits that Mr. Fattore’s first plan was to deny the evidence and put his alternative theories forward. But the Crown also submits there was effectively a “Plan B”. If the evidence could not be denied Mr. Fattore intended to do what he could to help Melissa Merritt and the children.

[66] On behalf of Mr. Fattore, Mr. Zaduk correctly points out that the intercepts do not explicitly establish that Mr. Fattore agreed with Ms. Merritt’s suggestion that he could take responsibility so that she could continue in her parental role. On the other hand, Crown counsel points to an intercept on December 9, 2013. There Mr. Fattore acknowledged that Ms. Merritt was worried that the police would take both of them and that their children would “go away”. Mr. Fattore then said: “I’ve already told you if they come and get me you’re not going” (Session 1761, p.6).

[67] Detective King was not a member of the homicide squad at the time of the interview, although he had been in the past. He was brought in to conduct the interview due to his track record of success in getting people to talk to him and because he had some specialized training. Det. King spent weeks preparing for the interview. He testified that he believed that most people will not talk to someone they do not like. During the interview he was firm and steadfast in asserting that Mr. Fattore was guilty. However, his approach was not to belittle or disrespect Mr. Fattore but rather to relate to him in a manner which could build rapport.

[68] Both men were forceful and argumentative during much of the interview but over the hours the video reveals that a certain balance was maintained. Det. King’s tactic was to primarily use an evidence based approach. The evidence was revealed to Mr. Fattore in stages as the interview progressed.

[69] The turning point in the interview seems to come at p. 359. According to time stamps in the transcript that was at 23:40, approximately 11 hours into the interview. By that time the evidence review was over and the tone of the discussion had changed and become low key. Mr. Fattore asked Det. King to finish the sentence: “Melissa walks free if ….” Mr. Fattore then entered into a form of negotiation with Det. King. Mr. Fattore confessed, commencing at p. 391 of the transcript, which is time stamped 1:24 a.m. on January 29, 2014.

[70] While what occurred as reflected between pp. 359 and 391 of the transcript (23:40 and 1:24) is not the only important part of the interview in terms of voluntariness, I am of the view that it is a critically important part of the interview. From 1:24 to the end of the interview Det. King and Mr. Fattore go over Mr. Fattore’s actions in committing the two murders. During this period Det. King also questioned Mr. Fattore to some extent about the death of Bill Harrison. Before doing so he reminded Mr. Fattore of his rights and told him he could contact a lawyer again if he wished to. Mr. Fattore declined. Mr. Fattore denied any involvement in Bill Harrison’s death.

The Length of the Interview

[71] Before examining the various stages of the interview in more detail, I will make some general comments about the length of the interview.

[72] Mr. Fattore was placed in the interview room at 12:32 p.m. on January 28, 2014. The interview does not commence until 12:46. Prior to that Det. King removed the handcuffs, left Mr. Fattore alone while he got coffee for both of them and then took Mr. Fattore to the washroom.

[73] With the exception of washroom visits, Mr. Fattore remained in the interview room until 3:41 a.m. on January 29, 2014. This period of just over 15 hours is a very long time. However, I note that the turn towards confession seems to have occurred at the 11 hour mark (p. 359) with the confession coming at the 13 hour mark (p. 391).

[74] While the interview was lengthy, Mr. Fattore was provided with coffee, water and soft drinks. He was also provided with food on two occasions. There were times when he was offered food or beverages but declined. He was asked regularly if he wished to use the washroom. Whenever he asked to do so he was promptly taken to the washroom. After returning from the washroom Mr. Fattore always confirmed that the case had not been discussed while out of the interview room.

[75] Mr. Fattore was also left alone in the interview room for breaks that lasted from 10 to approximately 40 minutes. During these periods he can be seen on the video resting or dozing. Mr. Fattore was permitted to keep his coat which he put on or took off as it suited him. On one occasion when he questioned the temperature in the room Det. King measured it at various locations. It was 70 to 71 degrees Fahrenheit.

[76] During the “airport play” Mr. Fattore told Melissa Merritt that he was tired during the interview. There is some indication Merritt and Fattore suspected they were under electronic surveillance and this must be taken into account in terms of credibility and reliability.

[77] However, during the interview Mr. Fattore made little mention of being tired. At one point he indicated he did not get a good sleep the night before as one of his children had gotten into his bed. At another point far into the interview Mr. Fattore asked if they would be much longer and said he was “almost done”. I took this as a reference to fatigue. However, Mr. Fattore did not complain about being tired and never suggested that he was too tired to continue or that he wanted to stop because he was tired. He did say that his usual bedtime was around 11:00 p.m. Mr. Zaduk submitted that Mr. Fattore began to slur his speech. I could not detect that on the video.

[78] Overall, neither the video nor the transcript reflects that fatigue was a major factor. Det. King did tell Mr. Fattore that the police controlled Mr. Fattore’s presence in the interview. However, Mr. Fattore stayed engaged for the vast majority of the interview. There was only one point well into the interview when Mr. Fattore crossed his arms and said he was going to exercise his right to remain silent. He then said Det. King could continue to narrate if he wanted to. Det. King did so and within a short time Mr. Fattore began to ask questions and to re-engage.

[79] Based on my review of the evidence it seems the length of the interview was primarily a function of the evidence based approach taken by Det. King in combination with the challenge to the evidence and the questions asked by Mr. Fattore. For example, many hours into the interview Mr. Fattore repeatedly asked Det. King to tell him what the police had against him in relation to Bridget Harrison’s homicide. This prolonged the interview significantly.

[80] It does not appear to me that Mr. Fattore was worn down or weakened in his resolve by virtue of the length of the interview. The video and the transcript reveal that at points both Det. King and Mr. Fattore were surprised by how much time had passed when they checked the actual time.

The Interview in More Detail

[81] Going back to the beginning of the interview, I will make reference to the interview in various stages. For convenience I adopt the division points as suggested in the Crown’s factum. I am in general agreement with the various demarcation points set out by Crown counsel.

[82] At the outset of the interview Mr. Fattore expressed concern for his children. Det. King said Mr. Fattore could cry if he wanted to. Mr. Fattore did not cry until he finally confessed, but at one point there is reference by King to seeing Fattore “well up” when speaking of his children. Clearly Mr. Fattore had genuine concern for the well-being of his children.

[83] Mr. Fattore indicated that his lawyer told him not to talk but said he did not mind giving background information. Mr. Fattore was aware of his rights and talked freely throughout most of the interview.

[84] Det. King explained that he was not directly involved in the investigation. He emphasized that he would not lie to Mr. Fattore and pointed out that if he did it would be caught on the video. For the most part Det. King adhered to this. While he did signify to Mr. Fattore later in the interview that Ms. Merritt was implicating him, which was not true, this interview is remarkably free of misleading content introduced by the police. There are times in the interview where Det. King learned that something he said previously was incorrect and where he then would tell Mr. Fattore of his error.

[85] I would point out that throughout the interview Mr. Fattore was completely unaccepting of any suggestion that Melissa Merritt was implicating him. He laughed at the suggestion. This was clearly not a factor that motivated Mr. Fattore to confess.

[86] During the first stage of the interview Mr. Fattore indicated that he was aware that the police would be coming (p. 22). As Crown counsel point out in their factum, intercepted communications on January 8, 2014 (Session 1417 at p. 6) capture Mr. Fattore saying that he anticipates he will be arrested for three murders.

[87] During the initial stage of the interview Det. King stressed that Mr. Fattore had choices to make and that the hardest choices of his life would have to be made that day.

[88] While at one point in the first stage of the interview Det. King agreed that Mr. Fattore “had lost his parental rights”, a turn of phrase that raises obvious concerns, at pp. 19 to 21 Det. King appropriately explained the role of the CAS as an organization independent of the police which would care for the children on either a permanent or temporary basis. King said the CAS would make independent decisions based on what they knew of the children.

[89] When Mr. Fattore suggested that King was telling him he had lost his parental rights (p. 21) King agreed. However, he immediately went on to say that the CAS would act in the best interests of the children, that he could not answer what the CAS would do, and said that the CAS could place the children with either Mr. Fattore’s or Ms. Merritt’s family. Viewed overall, I do not think this exchange can be reduced simply to Det. King telling Mr. Fattore that he had lost his parental rights.

[90] The second stage of the interview is characterized by Det. King revealing piece by piece important evidence the police had gathered in relation to the murder of Caleb Harrison. This commences at p. 72 and continues to about p. 124 of the transcript. It covers an approximate time frame from 14:56 to 16:29.

[91] Det. King revealed (at p. 87) that Mr. Fattore’s DNA had been found under Caleb Harrison’s fingernails. He later showed Mr. Fattore a report from the Centre of Forensic Sciences (CFS) to that effect and discussed it with him. The two debated and argued about the significance of that evidence. Mr. Fattore put forward his theory that the evidence was valueless because it could be the result of a secondary transfer. He postulated that his daughter’s baseball jersey to Caleb Harrison’s hands. Two of the children moved back and forth between the Harrison residence and the Merritt and Fattore residence pursuant to court ordered custody and access arrangements.

[92] Det. King also revealed that the police had recovered black latex gloves from garbage collected outside the Merritt and Fattore residence in Mississauga, shortly after Caleb Harrison’s murder. Det. King explained that the gloves had Caleb Harrison’s DNA on the inside and Mr. Fattore’s DNA on the outside (p. 94). Det. King then demonstrated by removing a latex glove how that could have happened because the glove was turned inside out as it was removed.

[93] Mr. Fattore argued with Det. King about the evidence and its significance. He said it was “impossible” because he had never come into contact with Caleb Harrison.

[94] In response, Det. King suggested to Mr. Fattore that he was aware that Fattore and Merritt had a conversation in which Fattore said Caleb Harrison had grabbed him by the neck. Det. King had not yet revealed that the police had an authorization to intercept private communications. Det. King then made references to other parts of the same conversation. Fattore denied ever having such a conversation. Det. King seemed to suggest that the information he had about the conversation was coming from Melissa Merritt in the other interview room.

[95] During this part of the interview Mr. Fattore pointed out that during an interview in August 2013 Det. Rice had examined his neck and arms and found no scratches. He said that a scratch on his hand came from assembling a trampoline. He also demanded that Det. King explain to him how he got into Caleb Harrison’s home (p.102, 110-113). He continued to promote his secondary transfer theory in connection with the DNA found under Caleb Harrison’s fingernails.

[96] Throughout this portion of the interview Mr. Fattore remained strong and argumentative. It appears he had no interest in exercising his right to remain silent. During this stage of the interview Mr. Fattore continued to ask questions of Det. King.

[97] Det. King asked Mr. Fattore if he went to Walmart the night before Caleb Harrison’s death. Fattore said he did not remember that. Det. King then revealed that the police had also located a new pair of running shoes in the accused’s garbage shortly after the murder and explained they could prove that Fattore purchased them at Walmart the night before the murder.

[98] During the early part of this stage of the interview Mr. Fattore brought up again that he had been told he had lost his parental rights (p. 73-74). Det. King said he had not lost them but that they had been “transferred to the CAS… ‘cause someone’s gotta take care of the kids.” Det. King became careful in his response. He indicated that the CAS would take the matter to court, that a court would decide on placement of the children and that it was out of King’s hands (p.75). King added that he could not say what would happen and that he did not want to give Mr. Fattore information that was incorrect.

[99] Early in this stage of the interview Det. King suggested that Melissa Merritt was providing different information in her interview. That was not true. Later in this stage, when King was making references to conversations he was aware of between Merritt and Fattore not yet having revealing the existence of the intercepts, he was suggesting that such information was coming from Ms. Merritt in her interview.

[100] Det. King also suggested that Melissa Merritt’s father was getting her to cut ties with Mr. Fattore in order to save herself. Mr. Fattore never did believe that this was occurring. He laughed or scoffed at these suggestions.

[101] Throughout this stage of the interview Mr. Fattore continued to profess his innocence. Det. King took the tack that, figuratively speaking, Caleb Harrison was telling the police by means of the DNA transfers that Fattore was responsible.

[102] Det. King told Fattore to think of what was “best” for him. (p. 97). He asked what would happen if he could bring Melissa in to say, “Honey, think of your family and think of your kids, think of Trinity, Taylor, Deakon, Damian, M.2 and M.1” (p. 99). Mr. Fattore’s immediate response was that he did not believe his “wife” was doing this. This was said fervently and without any doubt on Mr. Fattore’s part. This part of the discussion was mildly heated with voices somewhat raised. Mr. Fattore denied involvement in the murder and asked the officer to explain a number of things to him (p. 110).

[103] At p. 133 Det. King again asked “what if” he was to bring Melissa in and she said he should step up and tell the truth because she does not want to go to jail, she wants to take care of the kids. Mr. Fattore responded that she would not say that. Ironically, at that point both King and Fattore knew that Ms. Merritt had said something similar to Mr. Fattore not long before their arrests.

[104] There was also a discussion about bail during the second stage of the interview. At p. 138 King suggested that Fattore would be sitting in jail for the next three years without seeing his family. When Fattore questioned this, King essentially said people do not get bail for murder. Fattore said he knew from the news that that was not true.

[105] Det. King then walked this comment back. At p. 138 he said the bail process in a murder case is “a little different”. King said it was a legal issue he was not qualified to deal with and that he would leave it to the legal experts. Fattore said again he had been advised he could have a bail hearing. At p. 141 King said that the bail process should not influence Mr. Fattore’s decision making during the interview.

[106] In a later stage of the interview Det. King returned to the bail question (p. 253). There he explained how Fattore could apply for bail and emphasized that whether bail was granted “has nothing to do with me.”

[107] The second stage of the interview ends with a break from 16:29 to 16:46. During the break Mr. Fattore was provided with reports from the CFS concerning the DNA found under Caleb Harrison’s fingernails and on the latex gloves. He can be seen on the video reading those reports.

[108] The third stage of the interview is from approximately pp. 145 to 188 (16:42 to 18:18). During the initial part of this stage Det. King goes over the CFS reports with Mr. Fattore and gives him some explanation of the concept of random match probability. The CFS reports indicate that the chances that it is not Mr. Fattore’s DNA under Caleb Harrison’s fingernails is one in 52 quadrillion. The random match probability in relation to Caleb Harrison’s DNA profile on the gloves is one in 100 million. For Mr. Fattore’s DNA profile on the gloves it is one in 7 million.

[109] During this stage of the interview King tells Fattore about the listening devices inside Merritt and Fattore’s residence. He then plays a series of excerpts from various intercepts and tells Mr. Fattore, “You are in a world of shit”. At p. 175 King refers to an intercept where he says Fattore can be heard saying to Merritt, “The fucking coward didn’t fight me”. At p. 177 King refers to an intercept where he claims Fattore can be heard saying, “I killed him fucking perfect”. At p. 178 King refers to an intercept where he claims Merritt is effectively telling Fattore, “You are fucked Chris, but there’s no need for me to be fucked too.”

[110] Mr. Fattore argues with Det. King throughout the process of listening to the intercepts. He asks King to replay the clips repeatedly, which is time consuming. He disputes that he is speaking on some intercepts, contends that the officer’s account of what is said is inaccurate in respect of others, and accepts the accuracy of some but contends they are insignificant.

[111] Det. King continues to promote the theme that Melissa Merritt has said that all the evidence points to Mr. Fattore (p. 184). He also refers to “Melissa’s worst fear” being that the children will be sent to a foster home and says that she will not be “staying on this boat” with Fattore.

[112] The audio clips also established that Fattore lied to King earlier in the interview when he said that he did not recall going to Walmart to purchase the shoes (p.181). Intercepts revealed that he had discussed that with Melissa Merritt.

[113] King claimed that the police had internet search strings or e-mails which showed that Melissa Merritt was distancing herself from Mr. Fattore. Fattore did not accept that.

[114] King also referred to intercepts of Merritt and Fattore coaching one of their children about what to say to the police (p. 184).

[115] This stage of the interview ended at 18:10 with a break that continued until 18:47. Mr. Fattore can be seen resting. This was followed by a washroom break. The interview resumed at 18:50.

[116] The fourth stage of the interview is from approximately pp.188 to 272 (18:50 to 20:31). During this stage Det. King reveals that the police have evidence of incriminating internet search queries from the family’s computer and that the family’s internet connection is being intercepted. King asks Fattore about searching for “poison”, and about searching in relation to a “bump key” prior to the murders. King also suggested that searches about inheritance showed that Fattore had committed the murder for money. Mr. Fattore denied that.

[117] King and Fattore discussed Caleb Harrison’s will. Fattore said he and Merritt assumed that everything in the will was probably for M.1 and Macaela, the two children Melissa Merritt had with Caleb Harrison. A protracted custody and access dispute in relation to those children were ongoing at the time of both murders.

[118] During this stage of the interview King said that he knows Melissa Merritt “is in it as deep as you” (p. 205). There is more discussion about the gloves, which King describes as part of the “kill kit”, as are the shoes purchased at Walmart. King reveals that the police have banking records related to the purchase of the shoes by means of Mr. Fattore’s debit card. He refers to intercepts where Merritt and Fattore discuss whether Fattore would have been “so stupid” as to pay for the shoes with a debit card.

[119] The conversation then moves on to internet searches about how long it takes for someone to die from being choked. King pointed out that Bridget Harrison and Caleb Harrison were both choked to death.

[120] Throughout this stage Mr. Fattore remained engaged in the debate. He answered some questions, asked some questions and argued with Det. King. King told Fattore that he was in a tough spot (p. 237). He said that a jury would not buy what Fattore was selling.

[121] At p. 238 King told Fattore that he needed to take time to think about all the evidence he had been shown. He said Fattore needed to make a choice. The choice was whether to say he “fucked up” and that he was “sorry”, or he could say that the police had made a “catastrophic mistake and no jury in this world would convict me and my wife based on what you have presented and send me to jail for the rest of my life.” King said if the second position was chosen Merritt and Fattore would be “crushed”. He then added that Fattore needed to “consider what’s best for you”. He added that he and Melissa were “not on the same page”.

[122] Mr. Fattore immediately stated that he “strongly, strongly disbelieved” that his wife was telling the police he did something which he did not do. Fattore was steadfast in that position throughout the entire interview.

[123] At p. 239 Det. King again raised the prospect of Melissa coming in and saying, “Chris, I love you and for the sake of our kids, please take this on yourself.” Fattore said he would have to hear it from her mouth “telling me to go down for something I didn’t do.”

[124] Mr. Fattore continued to make arguments that the evidence the police had was of little value. At p. 241 King told him to stop it and said a hammer was going to fall on Fattore. At p. 242 King said that people hate someone who shows no remorse more than they hate someone who admits to wrong-doing.

[125] Voices were raised on both sides during parts of this stage. At p. 244 and following King told Fattore that he is “fucked” and that his “best shot at overcoming anything” in this case is to say, “I fucked up. Melissa made me do that.” King went on to suggest that the reason was because Caleb Harrison was a “degenerate drunk” and “sexual deviant” who touched the kids. He also suggested Fattore was wrong to think “that Melissa isn’t gonna cut your throat”. He insisted that Melissa’s father would get her to cut her ties with him.

[126] When Mr. Fattore insisted he had not done anything wrong King told him that was “bullshit” and to “stop that”.

[127] In my view some things start to change towards the later part of this stage of the interview. At pp. 246 to 247 Mr. Fattore says King has spoken to him only about Caleb and he asks about Bridget. He then asks King “let’s talk about Bridget”.

[128] Having watched the video more than once I formed the impression that Mr. Fattore was starting to become more evaluative at this point in the interview. However, he remained in control. He was not cowed in any way. At p. 250 and p. 251 (20:28) he demands to be shown what the police have on him in relation to Bridget Harrison’s homicide.

[129] At pp. 252-53 Mr. Fattore says that he is frustrated. He seems to be engaged in an evaluative process. He raises that he has been told he is not getting out on bail and that he is being “threatened” in relation to his children. It is at this point that Det. King goes back to the bail issue, explains how bail is obtained in a murder case and says that whether bail is granted “has nothing to do with me”.

[130] Det. King also denied that he had made any threats with respect to the children. At p. 254 Det. King asked Mr. Fattore to repeat what King had said in response to Mr. Fattore’s question about what would happen to the children. At the top of p. 255 Mr. Fattore said: “Your response was that they [CAS] have parenting control and that you’re not really sure, but it’s up to them and the courts.” In my view this shows that Mr. Fattore did not really think that he had been threatened in relation to his children.

[131] Following this Fattore questioned King about why he was not talking about Bridget. The two continued to spar. At p. 257 King told Fattore that a jury is going to get to watch the video of the interview and will say: “Phil, he didn’t lie to Chris. But Chris sure tried to get it over on Phil.” Fattore’s response was that King had still not shown him anything on Bridget.

[132] At pp. 258 to 260 there is a discussion in which Mr. Fattore makes it clear that he understands the presumption of innocence and his right to silence. He questions why he should admit to the killings, although not expressed in such clear terms. Det. King explains that he should do so because the “firecracker” will not be “quite so loud” (p. 258). Fattore says the only evidence he has been shown is in relation to Caleb Harrison’s homicide and says he would rather take his chances with a jury.

[133] At this point Det. King raises that Fattore will be taking his chances on a life sentence (p. 259). Fattore then indicates that what King is suggesting makes no sense because if he admits involvement he will get a life sentence anyway (p. 260). It is at this point that Det. King ties the reason for admitting involvement to remorse (pp. 259-60).

[134] At p. 261 Mr. Fattore demands that Det. King convince him that he killed Bridget as opposed to requesting that he convince King that he did not. Sparring continued with both King and Fattore speaking forcefully. At p. 263 Fattore demands of King: “Put me in the house.” This takes the debate back to the DNA evidence and Mr. Fattore’s alternative transfer theories. King tells Fattore that these alternative theories will not be presented in court because they are without merit.

[135] This stage of the interview ends when the two men cool down. Det. King asks Mr. Fattore if he can get him some more water. King leaves the room at 20:31. The interview does not resume until 21:00. During the intervening period Det. King brings in water and food from McDonald’s for both of them.

[136] The fifth stage of the interview is from p. 270 to approximately p. 343 (21:00 to 22:35). This stage is characterized by a discussion of Bridget Harrison’s homicide with Det. King suggesting that there are strong similarities between the way Bridget Harrison and Caleb Harrison were killed. Det. King referred to this as “similar fact evidence”. It is during this stage that at one point Mr. Fattore says he is exercising his right to silence and for a brief period disengages from the discussion.

[137] At the commencement of this stage of the interview Mr. Fattore says he is tired. Comment is made that he has not eaten his McDonald’s meal. Det. King asks him if he is still cold. Mr. Fattore says that he is warming up. This is when the officer measures the temperature at various locations in the room and gets readings of either 70 or 71 degrees (p. 271). Mr. Fattore is surprised to find out that it is 9:00 p.m. At p. 273 he says his normal bedtime is 11:00 p.m. At p. 274 Mr. Fattore asks, “How much longer are we going?” Mr. Fattore says he thinks he’s almost done. King replies that it is still early. This is really the only significant discussions of fatigue during the entire interview.

[138] Just before this exchange Mr. Fattore asked King to show him something “that points fingers at me” in relation to Bridget Harrison’s death.

[139] After the brief discussion of fatigue Det. King shows Mr. Fattore photos of the scenes of the Bridget Harrison and Caleb Harrison homicides. Mr. Fattore is interested and examines the photographs. There is a discussion about whether there are similarities between the two deaths.

[140] There is then a discussion about Mr. Fattore’s activities and whereabouts at various times on the date of Bridget Harrison’s death. Mr. Fattore asks questions, including about the time of Bridget Harrison’s death. Det. King notes that the internet search about how long it takes to die from choking occurred 20 days before Bridget Harrison’s homicide.

[141] During this stage of the interview King and Fattore discuss aspects of the physical evidence, Melissa Merritt’s bail violation in relation to domestic child abduction charges, and the internet searches. King tells Fattore choosing to fight the evidence is the wrong choice and tells him he is in a bad spot.

[142] At p. 304 Mr. Fattore points out that the police do not have his DNA in relation to Bridget Harrison’s death. At p. 305 he says, “It sure seems like you’ve got a lot more stuff for Caleb than you do for Bridget, that’s for sure.” Det. King agreed with him. At p. 305 Mr. Fattore says he would not say the police have a lot on Caleb and that he is still not convinced. At pp. 306 to 307 King said he would not want Mr. Fattore to admit to something he did not do, but added that Fattore had “made a mess of this” by bringing the gloves and shoes into the house which brought Melissa and the rest of his family “into this”.

[143] This takes the conversation back to the shoes. Det. King also goes back to the theme of asking what would happen if he brought Melissa into the room and she told Fattore to “take it on the chin”. He also says she will be out of his life. Fattore again challenges King to bring her in so he can hear her say that. (p. 312).

[144] Mr. Fattore then begins to argue forcefully that the evidence the police have, shows nothing. He says he wants someone to tell him 100 per cent that skin and DNA cannot transfer through a baseball jersey. He then says he is “done talking” because every time he says something King tells him he is an “idiot”. Nonetheless, he keeps talking.

[145] Det. King says Fattore killed two people but is showing no remorse (p. 323). He stresses that Fattore has a choice to make and will have to live with the consequences. He says that the inculpatory conversations Fattore had with Merritt which the police intercepted will come out.

[146] Det. King then adopts an even more serious tone and says that it is ironic that the murders Mr. Fattore committed to keep his family together has instead separated them.

[147] As the arguments and discussion continue Mr. Fattore says that he is “not nervous” (p. 328) in relation to a polygraph. At p. 330 Det. King says that even if he showed Fattore a video of him committing the crime Fattore would say, “that isn’t me”. Fattore demands: “Give me something.” King says he can’t give Fattore any more evidence. Voices are raised. Fattore told King to keep his family out of it. The two men continued to argue about the strength of the evidence. Fattore accused King of trying to “bluff” him. At p. 334 King tells Fattore that Fattore brought his family into this when he killed M.1 and Macaela’s father.

[148] At p. 335 (22:18) Fattore says he is “done being attacked”, that King can say whatever he wants but he is not talking. However, the two men continue to discuss who brought Fattore’s family into the situation. At p. 336 Mr. Fattore again says he is done talking but he continues to talk. At p. 337 he says it again, although he tells King he can keep talking. Mr. Fattore then disengages although he continues to listen.

[149] At this point things become quiet. Det. King quietly read aloud summaries of intercepted communications, and recapped various items of evidence. That continued for about 11 minutes.

[150] At that point Det. King asked Mr. Fattore if he would like more water or a soft drink. Mr. Fattore begins to engage again. Things are low key. King asks if Fattore hates him and Fattore says he does not. There is talk of “don’t shoot the messenger”. King says a couple of people have tried to do just that. They end up laughing and then take a break at 22:35. A washroom break also follows. The interview does not resume until 23:18 (p. 345).

[151] The sixth stage of the interview is from pp. 345 to 359 (23:18 to 23:39). During this period of time the atmosphere in the room is very different. Both King and Fattore are calm. The tension is gone. Mr. Fattore says he is tired and he yawns. However, he does not press the point.

[152] Mr. Fattore asked how Melissa Merritt was doing. King truthfully told Fattore that Ms. Merritt had a bad reaction to the crime scene photos. At points they both sit silently.

[153] At p. 346 Mr. Fattore asks King, “What’s the difference between conspiracy and murder?” King explains things in the context of the case in an unobjectionable, if not technically accurate fashion. Mr. Fattore says he has been trying to figure out the difference. King explains that even if Melissa Merritt did not enter the house but conspired she would be “culpable”.

[154] The conversation at this stage is not about the evidence. At one point the men discuss football. Fattore wonders if everything has to be “on the record”. King tells him it does and explains why (pp. 356-57).

[155] The seventh stage of the interview is from pp. 359 to 390 (23:39 to 1:09). This is the immediate lead-up to the confession and, in my view, is the most critical part of the interview. As such it is difficult to summarize because almost everything that is said is important. I have watched the video of this portion of the interview a number of times.

[156] At p. 359 (23:39) Mr. Fattore asks Det. King to finish the following statement: “Melissa walks free, if…” King immediately indicates that he recognizes that Fattore wants to “give it up” in return for Melissa’s freedom. King says that neither he, nor “anyone here” has authority to do that.

[157] It seems to me that going forward from here Det. King understands that things have reached a critical juncture and that he must be careful not to provide an improper inducement. However, he wants to respond to Mr. Fattore in a meaningful way.

[158] Det. King tells Mr. Fattore that if Melissa “had something to do with this, but a minor amount of this, we need to get that out ‘cause that helps her.” He then refers to the evidence: “You saw what I saw, okay?” Still at p. 359, King says, “If you have information, honest, honest to God here, if you have information that exonerates Melissa from this, she’s free and clear of it, you’ve got to get that out, Chris.” King then says that if she only found out about “this stuff after the fact” and is now trying to protect him as his wife because she loves him, “then you’ve gotta take that in”.

[159] I pause here to add that having watched this part of the interview a number of times I am of the view that the reference to “she’s free and clear of it” was not a suggestion that Melissa would not face charges if Fattore took responsibility. In the context of all that was said, and with the intonation employed, I conclude that these words were clearly another way of stating what had already been stated. They were a reference to any information Mr. Fattore had to the effect that she was not involved and only learned of the killings after the fact.

[160] At this point Mr. Fattore is continuing to say that he is not guilty but says that he is thinking of his children. King says he has no doubt of that and that he has “no desire to put people into custody if they shouldn’t be there” (p. 360). He had previously told Fattore he did not want him to admit to something he did not do.

[161] King then again made reference to information that exonerates Melissa. However, that reference was incomplete. Mid-sentence King changed what he was talking about to say that the police did not have Melissa’s DNA at the scene or on gloves. He said that if Melissa only learned of it after the fact “we can deal with it and we do that to the benefit of Melissa because, absent that … due process will occur and the facts will speak for themselves… and a picture will be painted by the Crown of Melissa’s culpability.”

[162] Mr. Fattore said he was “torn”. He said he was not admitting guilt “but I don’t want to see my children go without parents, let alone just one parent.” In response to this, Det. King said, “You’re papa bear.”

[163] Fattore then indicates that if he simply goes back to his cell both he and Melissa will remain in custody for months or years in order to see what happens (p. 361).

[164] He then makes further reference to his children. Det. King acknowledges Fattore’s love for his children, refers to his own children, says that parents make the best decisions they can and that what grown men do can “influence what happens in our children’s lives” (p. 364). King added that Fattore must know in his heart that he has to do what he can “to make this right.”

[165] Mr. Fattore then asked Det. King to give him “two scenarios” of “how this plays out” based on King’s experience (p.364). King’s response is that if Fattore explains his involvement and that Melissa knows nothing about it “and the Crowns make an assessment on that based on the evidence” and how it can be interpreted then “Melissa may be mom.” He said that was one scenario. Another scenario was that they both “potentially” could face the consequences.

[166] When Fattore asked about timing King said he could not answer that. He then added that for Fattore it was a “bad situation”. Fattore said “always”. Turning to Melissa, King said “you give things up today, she flips as well, turns state’s evidence against you, provides a statement pertaining to everything she knows and perhaps her lack of involvement, she might get a kiss. But a lot of ifs in there Chris.”

[167] It is clear from the context that at this point Det. King is trying to respond to Mr. Fattore’s question about scenarios without making any promises or providing any improper inducements. In the circumstances it seems to be clear that what King is saying is speculative. These are just scenarios and not the only two which are possible.

[168] Mr. Fattore says he holds nothing against King and apologizes for losing his temper earlier. King then says that he can see that Caleb and Bridget Harrison were not nice people. This was obviously an attempt to appear empathetic to Mr. Fattore. King assured Mr. Fattore he was not judging him.

[169] At p. 369 Mr. Fattore asks Det. King who King needs to talk to before he (Fattore) decides “which route I take”. King responds that that will not happen tonight. He tells Mr. Fattore that he will have to make a decision. He then said: “This is a limited time offer.”

[170] These words immediately raise a red flag in terms of voluntariness considerations and I have reflected carefully about their use, their meaning and their effect in the context of this interview. One thing that must be considered is what was meant by and understood from the use of the word “offer”. The second is whether in the overall context the use of the words “limited time” is problematic or objectionable viewed from the perspective of the law of voluntariness and proof of voluntariness in this particular context.

[171] I have come to the conclusion that the manner in which the interview unfolded going forward from this point is of vital importance in appropriately evaluating the reference to “limited time offer” in the proof of voluntariness analysis. I will highlight the relevant considerations when I get to the appropriate points in the narrative.

[172] At p. 369 Mr. Fattore says that he is concerned about doing something to ensure the freedom of his wife and then being double-crossed. At p. 370 Det. King tells Fattore he is not going to make it worse for himself as far as the evidence is concerned. Mr. Fattore appears to agree with this. He says he is bringing up the prospect of some kind of arrangement “because I’ve sat and thought about the stuff that you are putting to the table, especially for Caleb” (p. 370). Fattore says, “And I’ve sat and thought logically…” He says at p. 371 that the police have evidence on Caleb but little on Bridget. He says he did not kill either of them but does not want to put his neck out and then get “screwed” because the person he loves is still being prosecuted.

[173] Det. King says that Mr. Fattore is asking for a guarantee that “I talk but Melissa walks”. King reiterated that all he could say is that if Fattore has information which, contrary to the current belief of the police, exonerates Melissa Merritt to some degree and paints her in a different light, “that’s gotta come out” (p. 371). King is very clear that he thinks Melissa Merritt is involved. Previously in the interview he suggested that Fattore should say that Merritt told him to do this.

[174] When Mr. Fattore says he is looking for some information about “what the difference in time would be”, King says he is not permitted to “do that” and says he would not want to provide information which would be inaccurate. It is not clear what outcome Fattore had in mind when he asked this question.

[175] As to the earlier use of the word “offer”, the only thing that word can be taken to refer to up to this point in the interview, is that if Mr. Fattore tells the police that Melissa was not as involved as the police think she is, the Crown will take that into account and evaluate the evidence.

[176] As to the “limited time” nature of what is being contemplated, Det. King says, at the bottom of p. 372, that Fattore’s ability “to control those choices diminishes after today.” I note that he did not say that it would disappear completely.

[177] When Mr. Fattore asks why that is, King says it is because after today “other people become involved that you and I have no control over.” He referred to prosecutors, defence counsel and the whole judicial system. Somewhat later in this stage of the interview, at pp. 383 – 84 and pp. 387-88, Det. King adds to this explanation in a significant fashion. He says, in essence, that once Melissa has contact with her family, who may also have contact with Mr. Fattore’s family, the potential for contamination or collusion in relation to what each of them may say about the levels of their involvement will have to be taken into account. In terms of the police and the prosecutors being able to view any common description of lack of involvement by Melissa as credible and reliable, the potential for contamination and collusion would have to be minimal. In other words the time was limited in which circumstances tending to support the reliability of such common stories from Mr. Fattore and Ms. Merritt would be optimum. Once everyone left the interviews and Mr. Fattore and Ms. Merritt had access to others, the chances for that happening were “diminished”. Again, I note that Det. King did not say they were eliminated. Significantly, Mr. Fattore said that he understood what Det. King meant by these comments.

[178] Going back to p. 373, Mr. Fattore, who is obviously undergoing an internal struggle, says there is “no scenario in my head … that says that Melissa walks out of the building.” Det. King confirms that there is no way that will happen. King says that Melissa is “culpable of something”. He says that if she is not guilty of murder she may be guilty as an accessory after the fact.

[179] Fattore continues to say he is not guilty but he is stuck because he does not want his family ripped apart. King simply tells Fattore that he (Fattore) is in control.

[180] The interview is low key at this point. It then drifts away from the topic of Mr. Fattore’s choice. Then at 0:15 there is a washroom break followed by Det. King leaving Mr. Fattore alone in the room until 00:28. When Det. King returns, both men sit silently.

[181] At p. 381 Det. King returns to Melissa Merritt’s level of involvement. (00:33). He makes repeated use of the word “truth”. He says if the truth keeps Melissa out of “this stuff” Fattore is not doing her any favours by not telling the truth. He says that if Melissa “is knowledge-only on this thing, then that’s something that can be worked with.” He says he has no evidence of Melissa’s involvement in the “physical aspects of this thing”. He says if that is the truth then it is important that it comes out because he has “no interest in putting her in a position that she shouldn’t be in”.

[182] Mr. Fattore wants to speak to his parents to help with his decision. Det. King says that it is not a good idea and then gives the more extensive explanation about contamination and collusion which I previously referred to.

[183] At p. 385 and following Mr. Fattore describes some of his thought processes, which involve concern for his family. Det. King says he cannot “get the toothpaste back in the tube”.

[184] At p. 386 King says that he does not know what Melissa is saying in her interview, but if she is saying she did not know about anything until after it occurred, and that is the truth, then she needs his account to corroborate that. Again, Det. King made repeated use of the word “truth”.

[185] King says the ball is in Fattore’s court. While he wants to hear what Fattore has to say it is Fattore that has to choose to say it. He said that Mr. Fattore has been making decisions for his family for years. King then gives his second further explanation about why “we can’t do what’s right tomorrow”. He explains that once there is contact with others, “It’ll water this whole thing down.” What the police want to see is that “Chris and Melissa told the exact same story without family members being able to become involved…” Again, at p. 388, Det. King makes repeated reference to the “truth”. He tells Fattore, “It’s not about you anymore.” He says he knows “it’s not what’s best for you.” While this is implicitly directed to doing what is best for Melissa, Det. King could not have been clearer that it is only the truth he is interested in and that it is only the truth that can help Melissa.

[186] It is also made very clear to Mr. Fattore before he makes any admission of guilt that there is no quid pro quo. Perhaps the most significant passage in the entire statement on this important issue is found at pp. 388-89, as follows:

King: You gotta say the words, Chris. I can’t do it for you.

Fattore: I don’t know. I’ve very stuck.

King: What do you need from me?

Fattore: I don’t know.

King: I’m not a magician. I can’t, uh, you know, I can’t, I just can’t make this all perfect, as much as I wish I could.

01:06

Fattore: No, I know. I just wish I had some guarantees, guarantees about a lot of things.

King: The guarantees are this, if you tell me the truth and that, that’s if you tell me the truth that Melissa is not-, if it’s the truth that Melissa’s not involved in this, as I currently believe that she is, and you tell me that that’s the truth and that, and that is corroborated by evidence, then she will face the appropriate charges…

Fattore: Right.

King: …which, as I see it, without knowledge, would not be murder. If that’s the truth.

Fattore: Which is still a charge none-, nonetheless.

King: Yeah.

[187] Following this exchange Mr. Fattore wonders aloud if his children will ever want to see him again. He says that if he opts for due process he may be convicted but if he takes the other road he goes away and may not see his children again. Det. King makes a reference to making lemonade from lemons and says: “The children’s mother is asking you to do the right thing.” (p. 390).

[188] After approximately three minutes of silence Det. King says quietly that it is decision time and time to choose. He says he knows that Fattore is constantly reaching the same conclusions over and over in his head. He tells Mr. Fattore that there is only one way out, only one option and appeals to him to “man up here”.

[189] At that point Mr. Fattore says things which reveal that he has thought things over and made a choice. He tells King, “You’ve showed me a lot of things today. A lot.” He adds: “You made me listen to some things too and I’ve listened to them. I’ve mulled them over in my head.” Mr. Fattore then quietly says that Melissa had nothing to do with the murders and knew nothing of them until after Caleb’s death.

[190] Mr. Fattore then breaks down crying and apologizes to Det. King for lying to him.

[191] The final stage of the interview is the confession which extends from p. 391 to the end of the interview (1:24 to 3:41).

[192] After apologizing to Det. King for lying to him, Mr. Fattore, in a very emotional state, says that he did not like Caleb Harrison. He says he did not like the way Caleb Harrison treated his kids and he described the Harrison family as an “awful family”. He then said that he killed Bridget Harrison and Caleb Harrison.

[193] Mr. Fattore described how he knocked on the door to the Harrison home. When Bridget answered the door he pretended to have a letter to give to the children. When she refused to take the letter he forced his way into the residence, hit her a couple of times and squeezed her neck until she stopped breathing.

[194] With respect to Caleb Harrison, Mr. Fattore said he snuck out in the middle of the night. He had stolen and copied M.1’s key previously and used it to gain entry to Caleb Harrison’s residence. He knew Caleb always slept with a fan on. He located Caleb’s bedroom. He entered the bedroom and stuck Caleb Harrison in the chest with a small aluminium baseball bat which he had brought with him. When Caleb sprang up they began to struggle. Caleb tried to offer him money. He knocked Caleb to the ground and choked him to death. He then put Caleb back in his bed and tried to make the room appear normal.

[195] Mr. Fattore cried and said he did not want anything bad to happen to Melissa. He explained that he committed the murders because of the effect the family law proceedings and the limited access Melissa had to M.1 and Macaela were having on Melissa and their relationship.

[196] Det. King spent the next couple of hours obtaining more details from Christopher Fattore. As none of this figures in the admissibility arguments advanced by counsel I will not refer to those portions of the interview.

The Applicable Legal Principles

[197] The admissibility voir dire in relation to Mr. Fattore’s post-arrest statement was part of a more extensive voir dire that also dealt with the admissibility of a number of pre-arrest statements made by Melissa Merritt and Christopher Fattore over a number of years. My reasons in relation to the admissibility of those pre-arrest statements (Ruling No. 2) were released separately in order to assist with the orderly proceeding of other pending pretrial applications. Those reasons contain a summary of the applicable legal principles and I will not repeat everything I said here: R. v. Merritt, 2016 ONSC 7009, at paras. 34, 42-50.

[198] I mentioned in Ruling No. 2, at para. 49, that inducements alleged in relation to third parties would be an important consideration in determining the admissibility of Mr. Fattore’s post-arrest statement. Before dealing with the arguments of counsel I will expand upon the general legal principles discussed in my previous ruling by focusing on considerations relating to third party inducements. In the course of doing so I will refer to two passages from the majority judgment in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 that were emphasized by counsel. Para. 49 is emphasized by Mr. Fattore. Para. 57 is emphasized by the Crown. In many ways these paragraphs, applied in the context of an alleged inducement in relation to a third party, frame the main issue raised in relation to whether Mr. Fattore’s post-arrest statement has been proven voluntary beyond a reasonable doubt.

[199] At para. 49 of his judgment in Oickle Iacobucci J. was reviewing the law on voluntariness under the sub-heading “Threats or Promises.” He said the following:

As noted above, in Ibrahim [Ibrahim v. The King [1914] A.C. 599] the Privy Council ruled that statements would be inadmissible if they were the result of “fear of prejudice or hope of advantage”. The classic “hope of advantage” is the prospect of leniency from the courts. It is improper for a person in authority to suggest to a suspect that he or she will take steps to procure a reduced charge or sentence if the suspect confesses. Therefore in Nugent, [(1998) 84 N.S.R. (2d) 191] supra, the court excluded the statement of a suspect who was told that if he confessed, the charge could be reduced from murder to manslaughter. See also R. v. Kalashnikoff (1981), 57 C.C.C. (2d) 481 (B.C.C.A.); R. v. Lazure (1959), 126 C.C.C. 331 (Ont. C.A.); R. J. Marin, Admissibility of Statements (9th ed. (loose-leaf)), at p. 1–15. Intuitively implausible as it may seem, both judicial precedent and academic authority confirm that the pressure of intense and prolonged questioning may convince a suspect that no one will believe his or her protestations of innocence, and that a conviction is inevitable. In these circumstances, holding out the possibility of a reduced charge or sentence in exchange for a confession would raise a reasonable doubt as to the voluntariness of any ensuing confession. An explicit offer by the police to procure lenient treatment in return for a confession is clearly a very strong inducement, and will warrant exclusion in all but exceptional circumstances. [Emphasis added.]

On behalf of Mr. Fattore, Mr. Zaduk relies in particular on the words I have placed in italics at the conclusion of para. 49.

[200] Mr. Zaduk combines his reference to para. 49 of Oickle with reference to paras. 51 and 52 of Oickle. At para. 51 Iacobucci J. said: “Threats or promises need not be aimed directly at the suspect for them to have a coercive effect.” He went on to quote with approval from the judgment of McIntyre J.A. (as he then was) in R. v. Jackson (1977), 34 C.C.C. (2d) 35 (B.C.C.A), at p. 38:

[Cases] must be considered in relation to their own facts. It is my opinion that for a promised benefit to a person other than the accused to vitiate a confession, the benefit must be of such a nature that, when considered in the light of the relationship between the person and the accused and all the surrounding circumstances of the confession, it would tend to induce the accused to make an untrue statement, for it is the danger that a person may be induced by promises to make such a statement which lies at the root of this exclusionary rule.

[201] No one suggests that the relationship between Mr. Fattore and Ms. Merritt would not satisfy this test. However, the parties have very different views about whether Det. King offered an improper inducement which raises a reasonable doubt about the voluntariness of Mr. Fattore’s statement.

[202] On behalf of the Crown, Mr. McGuire emphasizes all that was said by Iacobucci, J. at paragraph 57 of Oickle:

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.

[203] To these references from Oickle, which I believe substantially frame the main issue, I would add reference to the following legal principles which are germane to determining the voluntariness of Mr. Fattore’s post-arrest statement. First, as held in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 36:

On the question of voluntariness, as under any distinct s. 7 review based on an alleged breach of the right to silence, the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will. The test is an objective one. However, the individual characteristics of the accused are obviously relevant considerations in applying this objective test.

[204] Second, as emphasized in Oickle, at para. 71:

Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an “inducement” as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, 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, taking into account all the aspects of the rule discussed above. [Emphasis added.]

[205] Third, in R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 15, Deschamps J. for the majority made the following comment about the role played by a finding of a quid pro quo:

[W]hile 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.

[206] It seems to me that these principles are of particular significance to the analysis.

[207] I also wish to add that the facts in Spencer involved alleged promises or inducements in relation to the appellant’s girlfriend. There are strong factual parallels between that case and this case. Excerpts from the exchange between the interviewing officer and Mr. Spencer are set out in an Appendix to the Supreme Court of Canada’s judgments. The judgment of McKinnon J. at trial is also very enlightening: R. v. Spencer, 2003 BCSC 508, [2003] B.C.J. No. 751. Spencer provides an interesting “case study” from a factual point of view, which assists in a general way with the application of the principles I have outlined. The majority concluded that nothing said to Mr. Spencer by the interviewing officer about Mr. Spencer’s girlfriend was inconsistent with the trial judge’s determination that the resulting statement was voluntary. As I have said, there are strong factual parallels between that case and this one.

[208] R. v. Heatley, 2015 BCCA 350, 327 C.C.C. (3d) 1 is a similarly interesting case in terms of its factual similarities to this one. In that case alleged inducements made in relation to the accused’s girlfriend were also found not to have raised a reasonable doubt about the voluntariness of the appellant’s statement. See in particular paras. 46-56.

The Position of the Parties in More Detail

The Crown’s Position

[209] On behalf of the Crown Mr. McGuire submits that the voluntariness of the statement has been proven beyond a reasonable doubt. While the interview was lengthy, that arose from the evidence based approach taken by Det. King, the fact that the arrest was in relation to two murders separated in time and because of Mr. Fattore’s questions and argumentative responses.

[210] Mr. McGuire submits that Mr. Fattore was prepared for his arrest and for his interview. He had a Plan A and Plan B. Plan A was to deny the significance of the evidence, which he did for hours. Plan B was to try to save Melissa Merritt for the sake of the children, but only if he first determined that the police had a strong case against him.

[211] Mr. McGuire notes that it was Mr. Fattore who raised questions about conspiracy and then started trying to negotiate with Det. King. The Crown argues that Det. King was careful not to offer any quid pro quo. Mr. McGuire submits that factually this case is like Spencer and Heatley, and submits the same result should follow. He submits there is no evidence Det. King offered Mr. Fattore anything. Mr. Fattore had an operating mind, understood his rights, was calculating and eventually decided that Plan B was the way to go. Det. King was aware of the potential for a Plan B based on the intercepts and utilized that knowledge during the interview. However, there was no improper inducement. Mr. Fattore’s will was not overborne.

Mr. Fattore’s Position

[212] In his submissions on behalf of Mr. Fattore, Mr. Zaduk commenced by suggesting that a reasonable doubt about voluntariness should arise from the combined consideration of three matters: oppression, inducements and the application of s. 503 of the Criminal Code. He submitted that while this was not a case that involves concerns about an operating mind in the classic sense, this interview is properly characterized as a “prolonged psychological onslaught” that stripped away Mr. Fattore’s defences and made him vulnerable to inducements that he could otherwise have withstood. He submitted that this was a gruelling interrogation, not an interview. Mr. Zaduk submits that with the possible exception of R. v. Owen (1983) 4 C.C.C. (3d) 538 (N.S.S.C., App. Div.) this may be the longest interview ever considered by the courts. He submits that an inducement that might be inconsequential in a short interview could have a very different effect in such a long interview.

[213] Early in his submissions Mr. Zaduk directed his attention to what is meant in the law of voluntariness by reference to the will of a suspect being “overborne”. I was referred to R. v. Archer, 2014 ONCJ 521 where M. Green J. addressed this issue, at para. 29, by citing Fish J. in dissent in Spencer, at para. 32: “[T]he will of the detainee in said to have been ‘overborne’ only in the sense that he or she would not otherwise have given a statement but was persuaded to do so in order to achieve an expected result – to avoid threatened pain or achieve promised gain.” I observe that Fish J. was assuming the existence of a quid pro quo.

[214] Mr. Zaduk also submitted that an inducement need not be explicit to affect voluntariness. I was referred to the decision in R. v. C.K., 2005 ONCJ 462, 36 C.R. (6th) 153, at para. 25. There Duncan J. rejected a Crown submission that a quid pro quo inducement must be conveyed in an explicit or stark form. Duncan J. concluded that nothing in Oickle supported that, observed that the confession rule had always taken subtleties into account, and held that offers implicitly or subtly made carry the same dangers as those which are overt.

[215] These submissions dovetail with the further submission that throughout Mr. Fattore’s lengthy interview Det. King made repeated subtle and not so subtle suggestions to Mr. Fattore that he should think about his children and about his family. Counsel also points to Det. King’s references to asking Mr. Fattore what would happen if Melissa Merritt came into the interview room and made a direct appeal to him to “take it on the chin”, or to “man up.”

[216] Counsel sought to undermine the Crown’s submission that helping Ms. Merritt was not an inducement which flowed from the police but rather from Mr. Fattore and Ms. Merritt’s pre-arrest discussions. In this regard I was referred to R. v. Zavachas, (1969), 54 Cr. App. R. 202 (C.A.). In that case a suspect asked the police officer who was interviewing him whether, if he made a statement, the officer would give him bail. The officer answered that he would. The matter came before the Court of Appeal to determine whether in this form of reverse circumstance there was, nonetheless, an inducement which rendered the statement inadmissible. The Court of Appeal held, at p. 207, that there was. It made no difference that the appellant was the one who initiated the inducement.

[217] Mr. Zaduk also referred me to D.P.P. v. Ping Lin, (1976), 62 Cr. App. R. 14 (H.L.). He submitted in reliance on that case that a subjective intention on the part of the police to extract a confession is not essential to a finding of involuntariness. The focus should be on how the accused perceives the words of the officer rather than on how the officer intended them. He submits the case also stands for the proposition that there need not be a concluded bargain between the police and the subject before an inducement will render a statement involuntary.

[218] As previously mentioned, Mr. Zaduk relies heavily on para. 49 of Oickle. He submits that the prospect of leniency mentioned there translates to the “possibility” of a reduced charge for Melissa Merritt in the circumstances of the present case.

[219] Mr. Zaduk also disagreed with the Crown’s submission that there were only four or five places in the statement where Mr. Fattore made reference to his right to remain silent. He submits that in addition to the obvious references cited by Crown counsel Mr. Fattore’s right to remain silent was also raised or implicated in the statement at paras. 13, 14, 56, 91, 138, 142, 306, 318, 335, 336, 337, 338 and 342. In addition, he refers to a long narrative by Det. King from 22:20 to 22:35 and notes that on another occasion there was an eight to ten minute period of silence.

[220] Counsel also claims that what was said by Det. King about the use the video of the interview would be put to is problematic. He submits that when Det. King told Mr. Fattore that the whole video would be played in court he should have explained that the video was subject to editing in relation to his right to remain silent. He submits that Det. King was essentially telling Mr. Fattore that the jury would see him standing “mum” and that they will think he has something to hide. On this point counsel relies on R. v. Barges, 2005 CanLII 47766 (ON SC), [2005] O.J. No. 5595 (S.C.J.), at paras. 76 and 94. I note that in that case, at para. 96, Glithero J. found that the accused had effectively been told that the interview would be his only opportunity to put forward his side of the story. That is very different than what I find occurred here.

[221] Mr. Zaduk’s submissions were thorough and comprehensive. He submitted that Det. King would say something which was an inducement but then later would add qualifications which watered the inducement down. He submits that the officer should not be permitted to “wrap his inducements in a cloak of ambiguity” and then give “dog whistle signals” to Mr. Fattore. Mr. Zaduk stresses that Det. King did not make his “no guarantees” comments until about the 12 hour mark of the interview.

Analysis

[222] As I mentioned at the outset, there are a number of things which have caused me to scrutinize Mr. Fattore’s entire post-arrest interview very carefully. The length of the interview, the CAS references, the bail references, and references to doing the right thing for his family and Melissa Merritt have all attracted my attention. The use of the words “limited time offer” in the context of all of the foregoing also raises particular concern.

[223] Any one of the things I have just mentioned, alone or in combination, could render a statement involuntary. It seems to me that in a pre-Oickle legal environment a strict application of the Ibrahim test would likely have led to the exclusion of Mr. Fattore’s statement based simply on the fact that some of these things were said.

[224] However, as Oickle now clearly requires, a court called upon to determine whether a statement is voluntary must strive to understand what actually occurred having regard to a review of the entire context in which the statement was made. As emphasized in both Spencer and Singh, the court must evaluate the strength of any inducements having regard to the particular individual and his or her circumstances. The focus is on the conduct of the authorities towards the accused viewed objectively, but taking the individual characteristics of the accused into account.

[225] At the end of the day, I find my decision comes down to how I view the facts. The video shows me that Mr. Fattore is not only a large man physically but that he is someone who has considerable resolve and determination which he exhibited throughout the lengthy interview leading up to the point where he decided to confess. His words demonstrate that he was fully aware of his right to remain silent. He knew it was the Crown who bore the burden of proving his guilt. His actions show that, contrary to counsel’s submission, Mr. Fattore wanted to talk to the police. I conclude his words and actions demonstrate that he wanted to know everything the police had on him so that he could evaluate his circumstances.

[226] Mr. Fattore argued with Det. King for many hours. As the Crown submits, Mr. Fattore had anticipated his arrest. It is clear from the intercepted private communications that were played on the voir dire that Mr. Fattore and Ms. Merritt had been discussing and evaluating their situation. It is obvious from Mr. Fattore’s comments that he had made some effort to learn about DNA and how it may be transferred. He had arguments ready which he pressed with vigour for prolonged periods of time during the interview.

[227] During the one brief period of the interview when Mr. Fattore did exercise his right to remain silent he told Det. King he could keep on talking. Det. King did so by quietly reading out more of the evidence against Mr. Fattore. By that time in the interview Det. King had laid out a very formidable prosecution case against Mr. Fattore for the murder of Caleb Harrison. Mr. Fattore’s DNA was under Caleb Harrison’s fingernails. The DNA of both the accused and the deceased were found on latex gloves recovered from the accused’s garbage shortly after the murder. Shoes purchased the night before the murder were found in the garbage together with the gloves. Mr. Fattore’s claim during the interview that he had forgotten about going to Walmart to buy the shoes until Det. King brought it up was proven by the intercepted communications played during the interview to be a lie. Mr. Fattore left mention of purchase of the shoes out of his earlier statements to the police. The intercepts included Mr. Fattore saying to Melissa Merritt that he had struck Caleb, that Caleb was a coward and did not fight, and that “I killed him fucking perfect”.

[228] Through the many hours that it took to present the evidence to Mr. Fattore, Det. King made references to Mr. Fattore’s children, to Mr. Fattore doing the right thing for his family, to being “Poppa bear”. These appeared to have no effect on Mr. Fattore except to annoy him. He told the officer to leave his children out of it. He scoffed and laughed at the suggestion that Melissa Merritt was implicating him. He demanded that Det. King bring Melissa Merritt into the room so he could hear her tell him to take it on the chin.

[229] After Det. King had outlined the evidence in relation to Caleb Harrison’s murder Mr. Fattore repeatedly asked, challenged or demanded that Det. King show him what the police had on him in relation to Bridget Harrison’s death. This showed that Mr. Fattore was thinking, calculating, evaluating and that he was in control.

[230] Shortly before Mr. Fattore opened the negotiation that led to his confession he confidently told Det. King that his assessment was that the police had a much stronger case against him in relation to Caleb Harrison than they did in relation to Bridget Harrison. Det. King agreed with him. This accurate evaluation is indicative of far more than an operating mind. It shows that despite the lengthy and argumentative process that had unfolded up to that point Mr. Fattore was in control of his ability to freely choose whether to confess.

[231] What occurred during the stage of the interview immediately preceding the confession shows the same thing. Mr. Fattore started the negotiation by asking Det. King to finish the sentence, “Melissa walks free if…” He was doing this while being careful to say that he was not admitting involvement. I conclude Mr. Fattore was quite calculating. He was in control. Nothing that had occurred to that point had overborne Mr. Fattore’s will.

[232] Once Mr. Fattore made efforts to open a negotiation Det. King pursued his objective of obtaining an admission of guilt. The discussion stayed low key, although there was clearly tension in the air due to the critical matters being discussed. It became obvious that Mr. Fattore was hopeful that he might be able to assist Melissa Merritt and his children by admitting his involvement. Det. King was very careful not to make any promises in this regard.

[233] Based on my repeated review of both the video and the transcript of the interview I am satisfied that no quid pro quo was offered to Mr. Fattore either explicitly or by implication. Quite the opposite is true. Det. King confirmed Mr. Fattore’s statement that he did not see any way Melissa Merritt was walking out of the building that night. Det. King told Mr. Fattore there was no one available he could speak to who had authority to give Mr. Fattore the guarantee or assurances he was looking for. It was made clear that Det. King did not have that authority. It is perfectly apparent that Mr. Fattore understood this.

[234] When Mr. Fattore asked Det. King to give him examples of scenarios based on his experience Det. King did so. However, it was obvious that Det. King was not describing the only scenarios that were possible. Det. King was responding to Mr. Fattore’s request in a speculative fashion. Moreover, the response was explicitly qualified. As Det. King carefully and quite fairly said to Mr. Fattore (at p. 365): “But a lot of ifs in there, Chris.”

[235] During this part of the interview Mr. Fattore explained his internal thought process (p.370). As he put it, he was sitting and thinking logically about his situation. He wanted a guarantee. Det. King repeatedly indicated in one way or another that he could not give that to him.

[236] Det. King appealed to Mr. Fattore’s sense of justice and fairness by saying that if Mr. Fattore had truthful information that would assist in demonstrating that Melissa Merritt was less involved than the police thought she was, that information might help Melissa. However, Det. King repeatedly stressed that such would only be the case if it was truthful and corroborated by other evidence. The only assurance he gave was that such information would be taken into account in deciding upon appropriate charges for Melissa Merritt. This was simply an assurance that the criminal justice system would take the information into account in an appropriate fashion. There was no quid pro quo and this cannot be regarded as an improper inducement.

[237] Based on the record of the interview it would be disingenuous to conclude that nothing said by Det. King during the interview about Mr. Fattore doing the right thing for his family was implicated in Mr. Fattore’s decision to confess. However, I am firmly of the view that the impact of the several comments Det. King made about Mr. Fattore thinking of doing the right thing for Melissa and the children falls within the bounds of what was contemplated in the quote from p. 212 of Rennie that was adopted by Iacobucci J. at para. 57 of Oickle. The point that is made there is that a self-generated hope of advantage is irrelevant “even if it provides the dominant motive for making the confession.” While it cannot be said that Mr. Fattore’s motive for confession was completely self-generated, the same passage from Rennie goes on to indicate that more commonly “such a hope will, in part at least, owe its origin to something said or done by [a person in authority].”

[238] As Iacobucci J. explained at para. 57 of Oickle just before citing the passage from Rennie: “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.” As said at para. 57 of Oickle just after quoting from Rennie: “The most important consideration in all cases is to look for a quid pro quo offer by interrogators…”

[239] In summary, there are a number of things which I rely upon in particular, but not exclusively, to support my conclusion:

(a) Although the intercepted communications do not indicate that Mr. Fattore had expressed agreement with Ms. Merritt’s pre-arrest suggestion that the evidence pointed at him not her and that the children needed a parent, that was something in Mr. Fattore’s mind prior to the interview.

(b) Although Det. King said in earlier parts of the interview that Mr. Fattore should do the right thing for his family he did not tie that to a benefit to a third party. He said some things in the interview in response to questions asked by Mr. Fattore that tended to tie the suggestion to Mr. Fattore taking moral responsibility.

(c) When Mr. Fattore tried to obtain some sort of promise from Det. King of leniency for Melissa Merritt, Det. King was perfectly clear that he could not do that and that there was no quid pro quo.

(d) While Det. King left open the possibility that some benefit might flow to Melissa Merritt and indirectly to Mr. Fattore’s family, that benefit was only a potential one based on Mr. Fattore providing truthful information which could be corroborated, showing that Ms. Merritt was not as involved as the police thought she was. Even then, the only potential benefit was that the information would be taken into account in deciding which charges were appropriate for Ms. Merritt.

(e) While this was problematically described by Det. King as a “limited time offer”, what Det. King meant by that was explained to Mr. Fattore in a common sense fashion. Mr. Fattore understood that the officer was describing the practical reality that once he and Ms. Merritt were in contact with family members the potential for contamination and collusion could “diminish” the potential benefits that might otherwise arise.

(f) These circumstances bear some similarity to those in R. v. Backhouse, (2005), 94 C.C.C.(3d) (Ont. C.A.). In that case an interviewing police officer told the appellant that he would be released if he provided an alibi that could be confirmed. Rosenberg J.A. held at para. 121, that because what the officer said was true it did not amount to an explicit offer of leniency. It could not be viewed as an inducement of the sort contemplated at para. 49 of Oickle, which would usually warrant exclusion of a resulting statement. As Rosenberg J.A. said at para. 121: “It would be an odd result if police could not invite a suspect, who was protesting his innocence and was willing to speak to the police, to provide an alibi that could clear him of liability.” In my view, this reasoning is applicable in the present case where Mr. Fattore was told only that truthful information that Melissa Merritt was less involved than the police thought she was, if corroborated, would be considered in determining what charges it was appropriate for her to face.

(g) Mr. Fattore had a break shortly before he confessed. When the interview resumed it was apparent that Mr. Fattore was thinking about all that he had learned. Immediately before he confessed he indicated that he had been thinking about the evidence and his family. He had “mulled it over” in his head. His own description of the process that led him to confess demonstrates that his will was not overborne.

(h) While the interview was long it was not oppressive. There was a great deal of evidence to review and Mr. Fattore wanted to hear about it. He argued his position. He was not cowed or intimidated. His own words show that he was aware of his rights. He made a reasoned and calculated assessment of his situation and decided to confess because he was satisfied there was a strong case against him and he hoped that by doing so he may be able to assist his wife and family. That was something on his mind before he was arrested and interviewed. While Det. King played upon that there was no quid pro quo.

[240] While I have taken all of counsel’s submissions into account in reaching the conclusions expressed above, I wish to respond more directly to some of the specific arguments advanced.

[241] Mr. Zaduk referred to the judgment of the House of Lords in Ping Lin. I have taken the parts of that case that were referred to into account. As I have indicated, the conduct of the police in relation to the accused must be evaluated objectively. I note that Rennie, cited with approval at para. 49 of Oickle, is a decision of the Court of Appeal in England which post-dated the House of Lords decision in Ping Lin. I have based my decision on the leading Canadian authorities I have referred to. As held in Spencer, while the existence of a quid pro quo is important the final question at the end of the day is whether a reasonable doubt remains whether the will of the accused was overborne.

[242] In my view, the Zavachas case is of little assistance here. In that case there was clearly a quid pro quo. The accused asked if the police would agree to bail if he admitted his involvement and the interviewing officer said they would. There was no quid pro quo in the present case.

[243] Mr. Fattore’s internal and largely self-generated motive to confess was strong. As he ultimately said during his confession, he killed two people because he could not stand seeing and living with the effects the custody and access dispute between Melissa Merritt and the Harrison family was having on Melissa Merritt. As Mr. McGuire put it during his submissions, if such a motive was strong enough to get Mr. Fattore to kill it was certainly powerful enough to lead him to confess once he had satisfied himself as to the strength of the prosecution case against him. The reality is that Melissa Merritt and Mr. Fattore’s family were bound up in the facts of this case by its very nature. Det. King could not get around that in the course of conducting an investigative interview. As I have said repeatedly, he made it very clear that there was no quid pro quo.

[244] In terms of what Det. King said about the CAS and placement of the children and about bail in murder cases, each of these subjects was introduced with problematic comments. However, in each case Det. King retreated from his initial statements well before Mr. Fattore confessed. King went on to provide explanations that were reasonably accurate. He also stated in clear terms in relation to each matter that he was not an expert and did not want to mislead Mr. Fattore. With respect to both he told Mr. Fattore he had nothing to do with the outcome. He explained that the CAS was independent of the police. He told Mr. Fattore not to let anything he said about bail influence him.

[245] At least in terms of CAS involvement and what would happen in relation to the children of a suspect under arrest, R. v. Teske 2005 CanLII 31847 (ON CA), [2005] O.J. No. 3759, (2005) 32 C.R. (6th) 103 (C.A.) is of assistance. In that case the police told the accused that if he was released they would have to request that the CAS apprehend his children. This led to a statement from the appellant. The Court of Appeal accepted the trial judge’s finding that what the police said was not a ruse perpetrated to get the accused to talk. It was a truthful answer to a question posed by the appellant. The police had concerns for the safety of the children if the appellant was released. At paras. 76 and 77 the Court of Appeal referred to Backhouse and held that it could not be said that the police induced a confession “when they honestly answered a question put to them by the appellant.”

[246] Applying Backhouse and Teske it seems to me that on both of these points Det. King ultimately provided significantly correct factual answers to questions posed by Mr. Fattore. What Det. King eventually said overcame the initial problems he created. Moreover, it is clear that Mr. Fattore understood that the CAS would make an independent decision regarding placement of the children and that he knew he had a right to a bail hearing. There is no evidence that these factors were operative in Mr. Fattore’s decision to confess.

[247] Mr. Fattore submits that, at p. 17 of the interview transcript, Det. King said things about the use that would be made of the video recording of the interview which should lead me to have voluntariness concerns. He contends that he was being told that the jury would see him remaining silent. Counsel relies on Barges, where, at paras. 76 and 96, Glithero J. observed that Mr. Barges had been told several times that his interview was his chance to contribute to the puzzle. Significantly, Glithero J. also found that Mr. Barges was told that he “may not have any further opportunity” to tell his side of the story (para. 96). This sort of comment is often seen as problematic: R. Van Wyk, [1999] O.J. No. 3515 (S.C.J.), at paras. 160-161; R. v. Amos, [2009] O.J. No. 4852 (S.C.J.), at para. 19.

[248] I do not accept that the same thing occurred here. When Det. King referred to the video at p. 17 he did so in the context of saying that he would not lie to Mr. Fattore and that if he did it would be on the video for the court to see. He told Mr. Fattore again, at pp. 38 – 40, that he would not lie to him. At the top of p. 40 he made reference to the video again in the same fashion. The evidence in this case does not demonstrate the concern expressed in the three cases I have referred to which say that it is problematic when an interviewing officer informs a suspect that the interview will be their only chance to tell their side of the story.

[249] Mr. Fattore also submits that the police failed to comply with the spirit if not the letter of s. 503. Mr. Fattore was arrested just after 10:17 a.m. on January 28, 2014. Based on Cst. Ciftci’s evidence, Mr. Fattore was taken before a justice or provincial judge in Halifax at 10:00 a.m. on January 29, 2014.

[250] I have already made factual findings that the police did not time the arrest or select Halifax as the place to conduct the interviews for the purpose of circumventing the requirements of s. 503. There is evidence that after regular court hours a justice was not available. I observe that by 5:00 p.m. the police had barely scratched the surface in terms of the interview with Mr. Fattore.

[251] The police were entitled to speak to Mr. Fattore. Mr. Fattore was not exercising his right to silence. I have already found that he was vigorously engaging with Det. King in order to find out what evidence the police had. This is not a situation where the police continued to question Mr. Fattore beyond the point where it was clear that he was exercising his right to silence: See C.K. at paras. 32-45. In these circumstances I find that reference to s. 503 of the Criminal Code is of little assistance in resolving the proof of voluntariness issue.

[252] In reaching this conclusion I have kept in mind what was said in R. v. Koszulap, 1974 CanLII 1461 (ON CA), [1974] O.J. No. 726, 20 C.C.C. (2d) 193 (C.A.), at paras. 25-26; R. v. Precourt, 1976 CanLII 692 (ON CA), [1976] O.J. No. 2421, 18 O.R. (2d) 714 (C.A.), at paras. 33-36 and R. v. Poirier, 2016 ONCA 582, [2016] O.J. No. 3873, at para. 57. These cases were all cited on behalf of Mr. Fattore.

[253] Finally, I also wish to say that there were a number of things said by Det. King that I have not mentioned that could be considered to be indications of potential inducements. For example, occasionally Det. King made reference to what would be “better” or “best”. As indicated in Oickle, at para. 54, the use of such phrases should no longer necessarily require exclusion.

[254] In addition, during his submissions on October 19, 2016, Mr. Zaduk listed places in the transcript where he submitted Det. King offered inducements to Mr. Fattore. I may not have referred to each of these specifically in these reasons but I understand Mr. Zaduk makes reference to them for their cumulative effect over the 13 hours or so that preceded the confession. However, as I hope my reasons reflect, I have found that some of these simply had no effect on Mr. Fattore. I do not have evidence from Mr. Fattore to assist me in this regard.

[255] As I have also indicated it is apparent that Mr. Fattore was motivated, at least in part, by a desire to help Melissa Merritt and his children once he decided the police had a very solid case against him. A number of the things on counsel’s list of inducements are related to that motivation. However, based on a careful review of all the circumstances, I am satisfied that Mr. Fattore’s motivation in this regard was largely self-generated. He was in full control of his decision-making process. He was not improperly pressured into making the choice he did. After challenging the evidence presented to test its strength in his own mind he made a reasoned choice to tell the police what he did. While he had hopes that it might help Ms. Merritt and his family he had been advised in the clearest terms that there was no quid pro quo. All he was ever assured of was that if he gave truthful evidence that showed her involvement was less than thought, if that was corroborated, what he said would be taken into account in the proper functioning of the criminal justice process.

[256] By the time Mr. Fattore made his decision I am satisfied he was clear that the choice was his and that the police were offering nothing in return for what he might say. I have no concern, no reasonable doubt, about Mr. Fattore having made a false confession of his own guilt in order to assist Melissa Merritt or his family. Whether what he said about Ms. Merritt’s lack of involvement is true will be for the jury to decide on the basis of other evidence, given that Mr. Fattore’s statement is inadmissible in relation to her guilt or innocence.

[257] I have made some reference to the “airport play”. The recording and a transcript of the January 29, 2014 conversation surreptitiously recorded at the Halifax airport forms part of the evidence on the voir dire. While I have taken this evidence into account it has not played a significant role in my decision. There is some indication in the recording that Ms. Merritt and Mr. Fattore suspected that their conversation was being intercepted (pp. 22, 101). During the conversation Ms. Merritt questioned Mr. Fattore in a disapproving manner about why he had confessed. He explained his position to her. The circumstances surrounding this conversation are such that I am not prepared to place any significant weight on it, one way or the other, for the purpose of this ruling.

Conclusion

[258] The bottom line is that on a consideration of the full context and all the surrounding circumstances, I am satisfied that Mr. Fattore’s will was not overborne by anything which emanated from the police. Applying Oickle, Spencer, and Singh, I am satisfied beyond a reasonable doubt that Mr. Fattore’s post-arrest statement was voluntary.

F. Dawson J.

Released: April 24, 2017

CITATION: R. v. Merritt, 2017 ONSC 2449

COURT FILE NO.: CRIMJ(P) 1459/16

DATE: 20170424

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

MELISSA MERRITT and CHRISTOPHER FATTORE

RULING No. 10: Admissibility of Christopher Fattore’s Post-Arrest Statement

F. Dawson J.

Released: April 24, 2017