Court File and Parties
COURT FILE NO.: CR-16-30000678 DATE: 20170427 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Matthew Shumka for the Crown
- and -
JERMAINE SMITH Christian Pearce for Mr. Smith
HEARD: April 10 - 13, 18, 19, 2017
RULING ON ADMISSIBILITY OF STATEMENT
CORRICK J.
Introduction
[1] Mr. Smith is charged with two counts of robbery, two counts of disguise with intent, and one count of failing to comply with a recognizance. At his judge alone trial before me, Crown counsel seeks to introduce a statement that Mr. Smith gave to the police on March 5, 2014. The defence contests its admissibility on the basis that it was not voluntary.
[2] At the outset of the trial, Mr. Pearce, on behalf of Mr. Smith, sought the exclusion of the statement on the basis that Mr. Smith’s right to counsel had been violated. I heard the evidence in a blended voir dire. Mr. Pearce abandoned his application at the conclusion of the voir dire, leaving the voluntariness of the statement as the sole issue.
Background
[3] The following background facts are not in dispute.
[4] On February 2, 2014, at about 10:20 p.m., two masked men robbed Zhong Fei Yao at gunpoint. At the time, Mr. Yao was working in his convenience store, Hadfield Variety, at 80 Dearham Wood. The bandits stole money, cigarettes and scratch lottery tickets.
[5] Sometime during the late evening of February 6, 2014, before 11:00 p.m., Vegnesh Ganesh was robbed at gunpoint by two masked men while he was working in his family’s convenience store, Daisy Mart, at 2537 Warden Avenue. The bandits stole cash, cigarettes and scratch lottery tickets.
[6] Mr. Smith’s girlfriend, Diwayna Barrett, redeemed winning scratch lottery tickets that had been stolen in the February 2nd robbery on February 3, 2014 at three different locations between 12:28 and 1:57 p.m. She redeemed winning tickets stolen in the February 6th robbery on February 7, 2014 at four different locations between 9:37 a.m. and 12:07 p.m.
[7] Police were able to identify Ms. Barrett from surveillance footage at some of the locations where the stolen tickets had been redeemed. Further investigation revealed her relationship with Mr. Smith. It also revealed two other matters that were important to the ongoing investigation. Firstly, Mr. Smith was subject to a judicial interim release order that prohibited him from communicating with Ms. Barrett, and required him to reside at 101 White Oaks Court, Apt. 904 in Whitby. Secondly, Mr. Smith’s fingerprint had been found on a roll of duct tape in a backpack that had been left at the scene of an armed convenience store robbery in 2012.
[8] Police set up mobile surveillance on Mr. Smith between February 18 and March 3, 2014. Mr. Smith was seen numerous times communicating with Ms. Barrett throughout this period. He was also seen walking his five-year-old daughter to and from school, which was located close to Ms. Barrett’s residence in Scarborough.
[9] The Toronto Police Service obtained two search warrants for the homes of Ms. Barrett and Mr. Smith. Warrants for the arrest of Mr. Smith and Ms. Barrett were also issued. Mr. Smith was to be arrested for possession of the proceeds of crime (the lottery tickets), fail to comply with a recognizance, and the 2012 robbery. Ms. Barrett was to be arrested for possession of the proceeds of crime (the lottery tickets), and breach of probation.
[10] On March 5, 2014, the search warrants were executed. When police executed the warrant at Mr. Smith’s residence in Whitby, they discovered not only Mr. Smith, but also Ms. Barrett and their daughter. Mr. Smith was arrested for the 2012 robbery, fail to comply with a recognizance, and possession of property obtained by crime. Ms. Barrett was arrested for breach of probation and possession of property obtained by crime.
[11] Detective Andrew Stinson of the Toronto Police Service Hold Up Squad, who was the officer in charge of this investigation, testified that there was no plan to arrest Mr. Smith for the February 2nd and 6th robberies when the search warrants were executed because he was only a suspect at the time.
[12] There is no dispute that Mr. Smith was told why he was under arrest, was properly cautioned, read his right to counsel, and permitted to exercise his right to counsel before being questioned by any police officers.
[13] At 5:55 a.m., Detective Stinson arrested Mr. Smith. Sometime before 6:05 a.m., Mr. Smith was turned over to Officers Oakes and Mantle in the living room of the apartment. Detective Stinson located Ms. Barrett in a bedroom, and arrested her at 6:05 a.m. Mr. Smith and Ms. Barrett were kept apart. Mr. Smith was transported to 42 Division at 6:18 a.m. Ms. Barrett was transported separately shortly thereafter.
[14] The search warrant executed at Mr. Smith’s residence did not uncover much of interest to the police. They found two scratch lottery tickets, but no clothing, weapons, masks or cigarettes related to the February 2nd and 6th robberies. Similarly, nothing of significance, except perhaps a few scratch lottery tickets, was located at Ms. Barrett’s residence.
At 42 Division
[15] Mr. Smith provided a videotaped statement to Detective Stinson and his partner, Detective Abdel-Malik at 42 Division between 10:17 a.m. and 11:05 a.m. In the statement, Mr. Smith acknowledged being one of the people who participated in the February 2nd and 6th robberies.
[16] The events preceding the videotaped statement are the subject of conflicting evidence from Mr. Smith and Detectives Stinson and Abdel-Malik. At issue here is what Detective Stinson told Mr. Smith when he spoke to him without audio or video recording equipment in interview room #1 at 42 Division before Mr. Smith gave his videotaped statement. Mr. Smith alleges that Detective Stinson told him that if he did not accept responsibility for the February 2nd and 6th robberies, Ms. Barrett would be charged with possession of the stolen lottery tickets and would remain in custody, necessitating the intervention of the Children’s Aid Society (“CAS”) to take custody of their daughter. Detectives Stinson and Abdel-Malik deny that they threatened or induced Mr. Smith to make a statement.
Evidence of Detectives Stinson and Abdel-Malik
[17] Detectives Stinson and Abdel-Malik left Mr. Smith’s apartment at 8:30 a.m. following the completion of the search. Although neither officer noted their arrival time at 42 Division, it was sometime before 9:30 a.m. when Detective Abdel-Malik noted that he was informed that Mr. Smith and Ms. Barrett were being held in the interview rooms in the Criminal Investigative Bureau (“CIB”) office of 42 Division.
[18] Detective Stinson was leading the investigation into the February 2nd and 6th robberies. Detective Abdel-Malik had a limited role. He obtained the surveillance video from the stores where the scratch lottery tickets had been redeemed, and he participated in the execution of the search warrant on March 5 at Mr. Smith’s residence. He was also present when Mr. Smith gave his videotaped statement.
[19] When the detectives returned to 42 Division, they learned that Mr. Smith was lodged in interview room #1, and Ms. Barrett was lodged in interview room #3. The CIB office is a large open space furnished with rows of desks and computers. There are three or four interview rooms along the side of the office. The interview rooms are not sound-proof.
[20] At 10:10 a.m., after being advised that Mr. Smith had spoken to counsel, Detectives Stinson and Abdel-Malik entered interview room #1 to speak to him. Mr. Smith was sitting on a chair that was bolted to the floor. Detective Stinson asked Mr. Smith if he was okay, and whether he wanted any food or drink or to use the washroom. Mr. Smith indicated only that he was cold. Detective Stinson then told Mr. Smith that he was being charged with seven counts of failing to comply with a recognizance, three counts of possession of property obtained by crime, and robbery with a firearm related to a 2012 robbery of a convenience store. Detective Stinson also told Mr. Smith that he was a suspect in two further robberies with a firearm; one that occurred on February 2, 2014 at 80 Dearham Wood, and one that occurred on February 6, 2014 at 2537 Warden Avenue.
[21] Having informed Mr. Smith of the precise charges he was facing and that he was suspected of two further robberies, Detective Stinson advised Mr. Smith of his right to contact counsel again. Mr. Smith declined to contact counsel again. Detective Stinson then gave Mr. Smith the primary and secondary caution. Finally, Detective Stinson told Mr. Smith that if he would like to hear the full details of the investigation, he would provide them in a room equipped with video recording equipment. Mr. Smith agreed.
[22] Detectives Stinson and Abdel-Malik both testified that they left the interview room at 10:14 a.m. Detective Stinson went to see if the video room was available and if the video recording equipment was working.
[23] At 10:18 a.m., Detective Stinson re-entered interview room #1, put his hand on Mr. Smith’s bicep and walked him to the video room. Detective Abdel-Malik obtained a coffee for Mr. Smith. Mr. Smith’s statement was recorded between 10:21 a.m. and 11:09 a.m. The DVD of the interview was played during the voir dire, and filed as Exhibit 11. I was also provided with a transcript of the interview.
[24] At the outset of the interview, Detective Stinson reiterated what he had told Mr. Smith in interview room #1. Throughout the interview, Detectives Stinson and Abdel-Malik were professional and polite. Mr. Smith appeared calm. He agreed that he had been advised of his right to counsel, that he had exercised it, that he had been informed of the charges he was facing, that he was a suspect in two other robberies, and that he had received both the primary and secondary cautions.
[25] At the conclusion of the statement, Mr. Smith was escorted back to interview room #1, and at 11:14 a.m., Detectives Stinson and Abdel-Malik went into interview room #3 where Ms. Barrett was lodged. They spoke to her until 11:17 a.m., when they left the room. Ms. Barrett provided a videotaped statement between 11:26 and 11:57 a.m. Following her statement, she was released unconditionally from the police station. Detective Stinson testified that, based on the statements given by Mr. Smith and Ms. Barrett, he was persuaded that she did not know the origins of the lottery tickets and there was therefore no basis upon which to charge her.
Mr. Smith’s Evidence
[26] Mr. Smith testified that when he was in interview room #1, an unknown police officer came into the room, slammed his hand on the table and told him to get his act together. This occurred 10 or 15 minutes before he spoke to his counsel.
[27] Sometime later, Detective Stinson came into the room and told him that he was involved in the February 2nd and 6th robberies. Mr. Smith denied it. Detective Stinson also told Mr. Smith that if he did not give a video-taped statement admitting to the robberies, Ms. Barrett would be charged, and with both of them in jail, the CAS would have to be notified and he would lose his daughter. If he did co-operate, Ms. Barrett would be allowed to leave the police station that day.
[28] According to Mr. Smith, this initial interview lasted between 15 and 20 minutes. Detective Stinson told him that a search warrant had been executed at Ms. Barrett’s residence. He also showed him photographs of the robbers, and provided him with many details of the robberies.
[29] Mr. Smith testified that he went into the videotaping room prepared to agree with whatever Detective Stinson said in order to ensure that Ms. Barrett was not charged, and his daughter would not be at risk of CAS intervention. Ms. Barrett had told Mr. Smith that the CAS had previously been involved with his daughter, visiting her home once a week. Ms. Barrett also told Mr. Smith that if she ever went to jail again, she would kill herself.
[30] Mr. Smith said that he heard Ms. Barrett crying in one of the other interview rooms and he heard her speaking on the telephone. Detectives Stinson, Abdel-Malik, Tsianos and Mullen all worked in the CIB office throughout that morning. They all testified that they did not hear anyone crying from one of the interview rooms. Detective Tsianos testified that he spoke with Ms. Barrett at 8:00 a.m. to facilitate her right to counsel, and she was not crying at that time. Detective Stinson testified that Ms. Barrett may have started crying when he arrested her.
[31] After Mr. Smith gave his videotaped statement, he was lodged back in interview room #1. Sometime later, Detective Abdel-Malik brought Ms. Barrett to the interview room. She gave Mr. Smith her jacket and told him that she was leaving. Detective Abdel-Malik denied taking Ms. Barrett to see Mr. Smith, and testified that she was not permitted to give him her jacket.
Governing Legal Principles
[32] As the Supreme Court of Canada recognized in R. v. Oickle, 2000 SCC 38, the primary reason for the robust rules that have developed at the common law to assess the voluntariness of confessions is the concern over false confessions. Confessions that are not made voluntarily are more likely to be unreliable, and can lead to wrongful convictions. As the court said in Oickle at para. 69, “voluntariness is the touchstone of the confessions rule.”
[33] If the circumstances under which a confession is made raise a reasonable doubt about its voluntariness, it will not be admissible in evidence. The Crown bears the burden of satisfying the court beyond a reasonable doubt that the confession was voluntary.
[34] In determining the admissibility of Mr. Smith’s statement, I must not lose sight of the two objectives of the confession rule – to protect the rights of the accused person while not unduly limiting society’s need to investigate and solve crime. Oickle at para. 33; R. v. Singh, 2007 SCC 48 at para. 45.
[35] Oickle, paras. 68 – 71 instructs trial judges to consider all of the circumstances surrounding the taking of a statement from an accused person to determine whether the Crown has established the voluntariness of the statement beyond a reasonable doubt. A contextual approach must be taken.
[36] Although there is no exhaustive list of factors to be considered, courts have recognized that promises or inducements can render a confession involuntary if the strength of the inducement is enough to raise a reasonable doubt about whether the will of the accused person has been overborne. The promised benefit need not be aimed directly at the accused person. R. v. Spencer, 2007 SCC 11, [2007] 1 SCR 500 at para. 13. A promised benefit to a person other than the accused person must be such that it would induce the accused person to make an untrue statement. The court must consider the nature of the relationship between the person and the accused and all of the surrounding circumstances of the statement. Oickle, para. 51.
Analysis
[37] Mr. Smith alleges that Detective Stinson offered him an inducement to confess to his participation in the February 2nd and 6th robberies. Mr. Shumka acknowledges that the alleged inducement that if he confessed his involvement in the robberies, the police would release Ms. Barrett and have no need to inform the CAS that both of his daughter’s parents were in custody, if made, is an inducement strong enough to overbear the will of Mr. Smith.
[38] I do not accept all of Mr. Smith’s evidence. However, his evidence that Detective Stinson offered him an inducement before he gave his videotaped statement together with the failure of the officers to record their “pre-interview” with Mr. Smith, when considered in the context of the whole of the evidence, leaves me with a reasonable doubt about the voluntariness of his statement.
[39] Of particular concern to me is the failure of the police to record their interaction with Mr. Smith in interview room #1 when video recording facilities were readily available in the police station. This has deprived the court of a complete record of all of the circumstances leading up to Mr. Smith’s videotaped statement. I am now forced to make credibility findings without the assistance of independent evidence that was easily attainable.
[40] The fact that this “pre-interview” interview was not audio or video recorded does not by itself render the subsequent statement taken from Mr. Smith inherently suspect. Oickle, para. 46. However, to establish voluntariness, the Crown must provide, “a sufficient record of the interaction between the suspect and the police.” R. v. Moore-McFarlane, [2001] O.J. No. 4646 (Ont. C. A.) at para. 65. An audio or video recording of this “pre-interview” would certainly have satisfied this requirement.
[41] The Ontario Court of Appeal, in the case of R. v. Young, 2009 ONCA 891 at para. 61, affirmed the comments of Justice Molloy, the trial judge, when she wrote, “the norm should be that a suspect is spoken to from the outset with the videotape in operation.”
[42] Detectives Stinson and Abdel-Malik both testified that they had no concerns about talking to Mr. Smith off camera despite the fact that video recording equipment was available at 42 Division. Detective Abdel-Malik testified that he was not concerned because they were not going to speak to Mr. Smith about the offences off camera. They were simply going to ask him if he would go on video so that they could explain the allegations to him. Detective Stinson testified that it was a matter of common sense to speak to Mr. Smith off camera because the holding rooms at 42 Division are not equipped with video recording equipment. It is Detective Stinson’s practice to introduce himself to the suspect, ensure the suspect understands the charges and give the suspect the opportunity to call counsel from that room, rather than walk the suspect 100 or 150 yards down to the videotaping room, give the suspect the same information, and then walk the suspect back to the holding room to call counsel if that is requested.
[43] The rationales offered by Detectives Stinson and Abdel-Malik for failing to record their “pre-interview” with Mr. Smith are inadequate. Both officers testified that they believed there were insufficient grounds to arrest Mr. Smith for the February 2nd and 6th robberies before they obtained a statement from him. Obtaining a statement from Mr. Smith was critical to their investigation of these very serious robberies. Yet they chose to have an unrecorded conversation with Mr. Smith when video-recording equipment was 100 or 150 yards away.
[44] It has been more than fifteen years since Justice Charron of the Ontario Court of Appeal in the case of R. v. Moore-McFarlane, [2001] O.J. No. 4646 noted the value of video-recording interactions between suspects and police officers to assist the Crown to satisfy its heavy burden to prove voluntariness beyond a reasonable doubt. Judges in numerous cases since Moore-McFarlane have commented unfavourably on the police conducting unrecorded “pre-interviews” with suspects. See R. v. Ahmed, (2002), 7 C.R. (6th) 308 (Ont. C.A.); R. v. White, [2003] O.J. No. 2458 (Ont. C.A.); R. v. Cameron, [2002] O.J. No. 3545 (Ont. S.C.); R. v. Badwah, [2003], O.J. No. 6183 (Ont. S.C.); R. v. Bagnato, 2011 ONSC 2440; R. v. Salmon, 2012 ONSC 1553; R. v. Frank, [2009] O.J. No. 5645 (Ont. C.J.). Yet, the practice continues.
[45] In 2012, two years before Mr. Smith was arrested, Justice McCombs dealt with what he called the “practice” of Hold Up Squad officers conducting “pre-interviews” with suspects to advise them of the nature of the investigation, ensure that they understand their rights, determine whether they wish to contact counsel, and determine whether they are prepared to give a video-taped statement, all without the use of video or audio recording devices. He called this practice problematic even though the “pre-interviews” are not conducted with the intention of eliciting evidence from the suspect. Detective Abdel-Malik was one of the officers in that case who conducted a “pre-interview” with one of the accused. This renders his evidence that he was not concerned about talking to Mr. Smith off camera because they were not going to speak about the offences somewhat surprising. See R. v. Salmon, 2012 ONSC 1553.
[46] Despite the judiciary’s ongoing cautions, this practice continues. There is no valid reason for the failure to record every interaction between an investigating police officer and a suspect in custody at a police station. Mobile audio recorders are ubiquitous, and can be used if video recording is unavailable. The importance of recording interactions between police officers and the public has also been recognized by the Toronto Police Service by the installation of in-car cameras in front-line police cars.
[47] The “pre-interview” of Mr. Smith is a key piece of a complete record of the interaction between Detectives Stinson and Abdel-Malik and Mr. Smith. Other than his arrest, this was Mr. Smith’s first contact with the detectives. What was said to Mr. Smith during this “pre-interview” is critical to my assessment of the voluntariness of Mr. Smith’s later video-recorded statement. A recording of the “pre-interview” in this case would have greatly assisted the court. Its absence contributes to my reasonable doubt about its voluntariness.
[48] For all of the above reasons, I am not satisfied beyond a reasonable doubt that the videotaped statement that Mr. Smith gave Detectives Stinson and Abdel-Malik was made voluntarily, and it is therefore not admissible.