Court File and Parties
COURT FILE NO.: CJ 8665 DATE: 2017-04-24 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Derrick Lawlor
Counsel: Linda Elliott and Jennifer Caskie, for the Crown Stephen Gehl, for the Defendant
HEARD: January 30, 31, February 1, 2017
BEFORE: The Honourable Mr. Justice G.E. Taylor
RULING RE ADMISSIBILITY OF STATEMENT APRIL 15, 2014
Introduction
[1] Derrick Lawlor is charged with first degree murder in the death of Mark McCreadie whose body was found in Victoria Park in the City of Kitchener on April 10, 2014. On April 15, 2014, members of the Waterloo Regional Police Service interviewed Derrick Lawlor, who at the time was a patient in the Psychiatric Unit of the Grand River Hospital. The interview was audio recorded.
[2] The Crown seeks a ruling that the statement in question was voluntary and therefore admissible at the trial of this charge. Derrick Lawlor takes the position that the statement should be excluded from evidence at his trial pursuant to s. 24(2) of the Charter of Rights and Freedoms because of breaches of his rights pursuant to ss. 7 and 10(b) of the Charter.
[3] These applications where heard prior to commencement of jury selection under the authority of s. 645(5) of the Criminal Code.
Facts
[4] On April 10, 2014, the body of Mark McCreadie was located in a wooded section of Victoria Park in the City of Kitchener by City employees. The death was deemed suspicious and the Waterloo Regional Police Service began an investigation. The cause of death was not apparent.
[5] On April 11, 2014, Derrick Lawlor contacted a friend by the name of Randy Scott. During their telephone conversation, Derrick Lawlor said that a body had been found in Victoria Park and he was concerned that he was responsible. Randy Scott reported this conversation to the police.
[6] Christopher Moore, a police officer with the Waterloo Regional Police Service first dealt with Derrick Lawlor in 2013 as a result of a complaint by Derrick Lawlor of being sexually assaulted. In February 2014, Derrick Lawlor reported to Detective Moore that he had been the victim of another sexual assault. On April 13, 2014, Derrick Lawlor telephoned Detective Moore and said he was concerned that he might possibly be responsible for the male who had been found dead in Victoria Park. He told Detective Moore that he had consumed beer and prescription drugs while in Victoria Park on the evening prior to Mark McCreadie’s body being found. He said he had blackout episodes when drinking and at times became violent. Detective Moore had some concern about whether Derrick Lawlor was being truthful so he contacted the officer in charge of the homicide branch suggesting officers follow up with Derrick Lawlor.
[7] Les Pyke, a Waterloo Regional Police officer was assigned as a field investigator in relation to the Mark McCreadie homicide on April 10, 2014. Detective Pyke first heard about Derrick Lawlor on April 15, 2014 when he learned that Derrick Lawlor wanted to speak to someone about the incident in Victoria Park. Detective Pyke and Mark Leinweber, another member of the Waterloo Regional Police Homicide Unit, attended at Grand River Hospital at approximately 2:30 p.m. on April 15, 2014, for the purpose of speaking to Derrick Lawlor. Before going to the hospital he spoke to Randy Scott, who advised that Derrick Lawlor had some information which he wanted to pass along to the police regarding the incident in Victoria Park. At the time of attending at Grand River Hospital, Derrick Lawlor was not a suspect or a person of interest with respect to the murder of Mark McCreadie.
[8] Detective Pyke was aware that Derrick Lawlor was on the Psychiatric Unit at Grand River Hospital. The officers met Derrick Lawlor in a common area and went to a small room with some chairs and a table. Derrick Lawlor indicated that he wanted to speak to the police. Detective Pyke testified that Derrick Lawlor was not detained at the time of the interview although he was not told that he could leave the interview room at any time should he so desire.
[9] Detective Leinweber first met Derrick Lawlor on April 15, 2014. Prior to that meeting, he, together with Detective Pyke, spoke to Randy Scott who advised that Derrick Lawlor had told him he was concerned that he might have had something to do with the body which had been found in Victoria Park. Detective Leinweber also spoke to Detective Moore before meeting with Derrick Lawlor. Detective Moore expressed the opinion that the sexual assault reports he had received from Derrick Lawlor were lacking in credibility. Prior to arriving at Grand River Hospital on April 15, 2014, Detective Leinweber did not consider Derrick Lawlor a suspect in relation to the Mark McCreadie homicide.
[10] Detective Leinweber was aware that Derrick Lawlor was an inpatient at the Psychiatric Facility of Grand River Hospital although he understood him to be a voluntary patient. Detective Leinweber testified that Derrick Lawlor was brought into the room by medical staff where he and Detective Pyke were waiting.
[11] The interview with Derrick Lawlor on April 15, 2014 was audio recorded. Other than the brief interaction in the common area as described by Detective Pyke, when the officers first arrived at the hospital, everything said to and by Derrick Lawlor was recorded.
[12] At the outset of the interview Derrick Lawlor was advised that the officers were there to speak to him about some information he may or may not have regarding the incident in Victoria Park. Derrick Lawlor stated: “I wanted to just have a chat with someone”. Detective Pyke advised Derrick Lawlor that he could speak to a lawyer and that anything he said could be used against him in the event he was charged with an offence. Detective Pyke also told Derrick Lawlor that if he said anything that the officers thought was serious they would stop and re-caution him. Derrick Lawlor was also told that the police had no evidence linking him to the body which had been found in Victoria Park and that he was being interviewed as a potential witness. Detective Pyke advised Derrick Lawlor that he was not required to speak to the officers and he could terminate the interview at any time.
[13] The interview lasted a little over one hour. At the beginning of the interview there was a lengthy discussion about the use that could be made of any statement given by Derrick Lawlor, about Derrick Lawlor’s right to terminate the interview at any time and his right to seek legal counsel. Detective Pyke repeated that they would advise Derrick Lawlor at such point as the officers thought he was saying something incriminating. At approximately six minutes into the interview, Detective Pyke then stated: “Okay, perfect. So why do not we start off by having you tell us what you wanna tell us?”
[14] After approximately 14 minutes, Derrick Lawlor began describing cruising for “sexually deviant perpetrators” but he said he never hurt anyone. Shortly thereafter the he told the officers about wanting to harm people. He described going to the house of a male who he had met in Victoria Park and having the urge to seriously hurt the person. Approximately 26 minutes into interview Derrick Lawlor talked about looking for his knapsack after hearing the morning news about a body being found in Victoria Park.
[15] At a point approximately 50 minutes into the interview, Derrick Lawlor was cautioned that anything he said could be used against him. His response was: “I wanna share everything”. Shortly thereafter he was advised that he had the right to speak to a lawyer.
[16] Detective Pyke testified that at the end of the interview, Derrick Lawlor was still not a suspect in the Mark McCreadie murder investigation. According to Detective Leinweber, there was no change in Derrick Lawlor’s status at the conclusion of the interview.
[17] Derrick Lawlor did not testify.
Voluntariness
[18] It is incumbent upon the Crown to prove beyond a reasonable doubt that the statement made by Derrick Lawlor was voluntary. The leading authority on the voluntariness of statements is R. v. Oickle, 2000 SCC 38. The factors to be considered in deciding whether a statement was made voluntarily are:
a) whether there were any threats or promises made by a person in authority to induce the making of the statement; b) whether there was an atmosphere of oppression surrounding the making of the statement; c) whether the statement was a product of an operating mind; d) whether there was any police trickery which resulted in the making of the statement.
[19] I am satisfied that the Crown has proven beyond a reasonable doubt that the statement made by Derrick Lawlor on April 15, 2014 was voluntary. It was he who asked to speak to the police. Detectives Pyke and Leinweber went to the hospital to speak to Derrick Lawlor at his request. There is no suggestion that any threats were made or inducements held out to Derrick Lawlor to cause him to make statement. During the course of the interview Derrick Lawlor made it clear that it was his desire to speak to the police officers. The statement was not taken in an atmosphere of oppression. Derrick Lawlor was interviewed in a room at the hospital. At no time was Derrick Lawlor denied any request for food, drink or a break in the interview. The interview was not overly lengthy. The officers did not resort to leading or aggressive questioning. Indeed most of the interview involves Derrick Lawlor giving long statements which are unprompted by Detectives Pyke or Leinweber. The evidence does not suggest that Derrick Lawlor’s will was overborne.
[20] Although Derrick Lawlor was a patient in the psychiatric unit at the Grand River Hospital when he made the statement, it is apparent from listening to the recording of the statement that he was fully in control of his mental faculties. Although some of the things he said might appear unusual, in my view, they cannot be said to be the product of a person who is not fully cognizant of what they are saying. Finally, there is no hint of police trickery towards Derrick Lawlor which might have caused him and to make the statements. Throughout the interaction with the police officers he was treated with courtesy.
Charter Issues
Detention
[21] Derrick Lawlor was a voluntary patient at the Grand River Hospital on April 15, 2014. He was not a suspect or a person of interest with respect to the investigation into the death of Mark McCreadie. Detectives Pyke and Leinweber went to the hospital to speak to Derrick Lawlor because of a request made by Derrick Lawlor to Detective Moore. Although Derrick Lawlor was not told that he could leave the interview room at any time, he was told that he could terminate the interview whenever he wished.
[22] In R. v. Suberu, [2009] S.C.R. 460, the Supreme Court of Canada explained at paragraph 21 that a detention for the purposes of the Charter refers to a suspension of an individual's liberty interest by virtue of a significant physical or psychological restraint at the hands of the state.
[23] In R. v. Grant, [2009] S.C.R. 353, the Supreme Court stated at paragraph 22: "Detention" also identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. These rights are engaged by the vulnerable position of the person who has been taken into the effective control of the state authorities. They are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination. They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty.
[24] In this case, the police went to Grand River Hospital to speak to Derrick Lawlor at his request. Detectives Pyke and Leinweber thought they were about to interview a potential witness of questionable credibility. Derrick Lawlor was not physically restrained at any time. He was not under effective control of the state. From the content of the statement, it is apparent to me that Derrick Lawlor wanted to speak to the police and was going to do so regardless of anything the police said or did. He did not testify so there is no evidence that he thought he was under any sort of psychological detention. This is not a situation where there was an imbalance of power which was used to the advantage of the police.
[25] In the circumstances, I am not prepared to find that Derrick Lawlor has proven, on a balance of probabilities that at the time he was interviewed by Detectives Pyke and Leinweber on April 15, 2014 he was detained. Accordingly there was no obligation on the police officers to provide Derrick Lawlor with the standard warning and caution including his rights pursuant to section 10(b) of the Charter to obtain legal advice. I note however that, while not in the precise wording as has been suggested in cases involving persons who are arrested or detained, Detective Pyke did advise Derrick Lawlor that he could speak to a lawyer and that he could stop the interview at any time for that purpose.
Fair Trial
[26] Derrick Lawlor also submits that his right to a fair trial as guaranteed by ss. 7 and 11(d) of the Charter was breached because Detective Leinweber told Derrick Lawlor at the commencement of the interview that if he said something serious he would be stopped and re-cautioned but when he did say something incriminating the interview is not interrupted. As a result, Derrick Lawlor says that his right to a fair trial was violated.
[27] Derrick Lawlor says that when he began discussing his ideations about finding “sexual deviant perpetrators” he should have been stopped by the officers, re-cautioned and advised again that he had the right to speak to a lawyer. Derrick Lawlor submits that regardless of the initial caution, once police advise an interviewee that he will be re-cautioned and provided with access to counsel should he say anything incriminating, there is an obligation on police to fulfill the reasonable expectations that police honour their commitment as they had indicated.
[28] I can see no indication on the evidence presented in the current voir dire /application that Detectives Pyke and/or Leinweber were anything other than forthright and well-intentioned when they advised Derrick Lawlor that they would interrupt him if they thought he began to make incriminating statements. This is not a case of the officers lulling a person into a false sense of security by advising the person he or she would be stopped if anything incriminating were to be said, all the while intending to obtain such an incriminating statement.
[29] In my view, the failure to interrupt Derrick Lawlor and re-caution him when he began talking about his thoughts regarding doing harm to “sexual deviant perpetrators” could not result in Derrick Lawlor being denied a fair trial on the present indictment. It is apparent from listening to the recorded statement in its entirety that Derrick Lawlor was committed to telling the police what he wanted to tell them. Even when he was re-cautioned, he was dismissive and said he wanted to tell the officers everything. I can find no unfairness in the manner in which Derrick Lawlor was treated by Detectives Pyke and Leinweber and definitely no degree of unfairness that would amount to the level of a breach of the right to a fair trial is guaranteed by ss. 7 and 11(d) of the Charter.
Conclusion
[30] For these reasons, the audio recorded statement made by Derrick Lawlor on April 15, 2014 is admissible.