CITATION: R. v. KLARIC, 2017 ONSC 3700
COURT FILE NO.: 15-4908
DATE: 20 JUNE 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Todd Norman, for the Crown
Applicant
- and -
DALIBOR KLARIC
Stephen Bernstein, for Dalibor Klaric
Respondent
HEARD: May 15, 16, 23, 2017
The Honourable Mr. Justice H.S. Arrell
REASONS FOR JUDGMENT
INTRODUCTION
[1] Mr. Klaric is charged that on the 12th day of November 2013 in the City of Hamilton did commit first degree murder on Jiali Zhang contrary to Section 235(1) of the Criminal Code of Canada.
[2] The Crown brings this application for a ruling as to the voluntariness of a video recorded statement of the accused taken on the 13th of November 2013.
[3] The defence has conceded that statements made by the accused in the 911 call on November 12, 2013 are voluntary and thereby admissible. As well, the defence has conceded that statements recorded by Officer Martinez, on the same date, while the accused was transported from the scene of the arrest to Central Police Station, are also voluntary and thereby admissible.
[4] The defence contends that the statement given to Sgt. Ashbaugh, as recorded on November 13th, 2013, was not voluntary. It is therefore, in the view of the defence, not admissible.
THE FACTS
[5] The accused called 911 at approximately 11:13 p.m. on the 12th day of November 2013. It is conceded that the accused made this call from his cell phone and that he was located behind the liquor store on Centennial Parkway. On this call, the accused reported a murder and confirmed that the body was at his apartment at 9 Riverdale Drive, Apartment 505 in the Town of Stoney Creek. He confirmed he killed this female. He did not know her name as she was an escort and that he had called her to his apartment. When asked what happened he said, “I don’t know I just smashed her.” He indicated he used his fists and this happened approximately 3 hours prior to the 911 call. He further stated that he did not know why he did it. He emphasised throughout the call that he was unarmed. When asked why he killed the girl, he indicated that Veteran’s Affairs had turned him down for benefits. He spent some time during this call ranting about his worker with Veteran’s Affairs. The accused gave his name and the call ended with the Police arriving at the scene where the accused was located.
[6] The second set of utterances by the accused, are those recorded by Officer Martinez while he and Officer Lovegrove transported the accused from the scene of the arrest to the Central Police Station. Officer Martinez was specifically tasked by Acting Sergeant Blanchard to write down everything the accused said, but to ask no questions.
[7] The statements reiterate much of what was said in the 911 call. The accused had been turned down by Veteran’s Affairs and he stated that he went “fucking nuts” and whacked the escort. The utterances were written down verbatim.
[8] The Police who arrested the accused at the scene confirmed he was where he indicated he was in the 911 call. He was unarmed. He was cooperative. He was cautioned at the scene. He was arrested when an officer from his apartment confirmed the homicide. He was again cautioned and advised of his right to counsel. The evidence is that the accused said that he understood the caution. He indicated further that he did not wish to call a lawyer at that point. He was then put in the back of a cruiser. The officers left the scene with the accused at 11:43 p.m. and arrived at Central Police Station at 12:01 a.m. His clothing was removed and put in an evidence bag and he was given a white jumpsuit to wear. He did all this himself.
[9] Dried blood was observed on his left palm and there was a cut to a knuckle on his right hand which looked like some fresh blood. There were no other visible injuries and there were no complaints of any injuries by the accused.
[10] The accused remained in a holding cell until 4:23 a.m. He was observed during that time to be asleep on the floor for approximately 2 hours from between 1:30 a.m. until about 3:20 a.m. He spoke with duty counsel at 1:11 a.m.
[11] All of the Officers who had contact with the accused that night, both at the scene and at the Police Station, were consistent that he appeared to understand all instructions. He appeared to understand all the conversations with the Officers and was appropriately responsive. He did not appear to be intoxicated by alcohol or drugs. The Officers conceded there was some smell of alcohol on his breath and the accused admitted in his 911 call that he had been drinking after the murder. The Officers indicated that although he had some smell of alcohol, there were no other indications of impairment and the Officers indicated they would not have had an issue with him driving because of alcohol. In his conversations with the Officers, no one noted any slurring of his words.
[12] The cut on his knuckle was not bleeding but there was some indication of fresh blood. He never appeared to be in any medical distress and never complained that he was in any type of medical distress, until part way through the video interview.
[13] At 12:30 a.m. photographs of the accused and his hand were taken. A DNA swab of the hand was also taken. The clothes of the accused had been bagged and they were retrieved for evidence. The accused understood about the photography and the swabs, and cooperated.
[14] Sgt. Ashbaugh conducted the interview of the accused commencing at 4:23 a.m. on November 13th, 2013. Sgt. Ashbaugh had extensive training in taking statements and had been a polygraph examiner since 2012. He prepared prior to taking the statement, having been briefed by the other Officers involved. He also reviewed the event chronology. He had listened to the 911 call and he reviewed the utterances made by the accused to Officer Martinez. Sgt. Ashbaugh had not met the accused prior to starting the interview.
[15] The audio video interview was played for the court and it was of approximately 2 ½ hours in duration. The accused and Sgt. Ashbaugh were in an interview room with table, chairs, and video recording. The accused was advised that everything would be video recorded. He confirmed he had spoken to a lawyer. He was again cautioned. He stated he understood the charges against him and the caution. He was advised that he could have washroom breaks or rest from the interview at any time he wished. He confirmed he had received food. He was offered more and was offered beverages, which he declined. Sgt. Ashbaugh also confirmed that no promises or threats by any officers had been made and the accused agreed that that was correct.
[16] Throughout much of the interview the accused sat with his head down and was bent over. He did indicate he was cold at one point but never mentioned it again and nothing was done by the Officer to alleviate that condition. The accused started off the interview indicating he did not remember anything such as phoning the escort. He didn’t remember the escort coming to his apartment or him hitting her. He also indicated he didn’t remember anything he told the 911 operator. Throughout much of the interview, he simply repeated he didn’t remember. The 911 tape was then played for him. The Officer was persistent and towards the end of the interview, he changed his tone and became more forceful in his tone than earlier.
[17] Part way through the interview, the accused first indicates that he feels sick. The Officer asks the accused if he wished to use the washroom and there was no response to this question. During much of the second half of the interview, the accused simply sat with his head between his knees or resting his head on the table. He continued to indicate he felt sick. He did not, however, say he wished to stop the interview, nor did he ever say he wanted to use the washroom. The Officer gave him a garbage pail and said if you are going to be sick, do so in the garbage pail. The accused was never sick in the garbage pail, or anywhere else, although he does make some retching and spitting type sounds on occasion.
[18] Approximately two thirds of the way through the interview, after the Officer’s tone had become somewhat more aggressive, the accused started to have some memory of this incident. He confirmed he had contacted this escort on a prior occasion through a website. He stated she was nice and she did nothing to trigger his outburst of anger. He said he just started whacking her and killed her. He indicated he beat her for close to two hours.
[19] As this part of the interview continued, the accused at one point crouched on the floor, did some deep breathing, grimacing, did some moaning and groaning and then sat on the floor. Again he is never sick but just spits into the garbage pail.
[20] At the end of the interview, the accused for the first time, complained of chest pain and difficulty breathing. He said he was unable to walk. Sgt. Ashbaugh indicated he would call a doctor and 911 was called. The accused laid on the floor until the paramedics arrived at which time the recording stops.
[21] The evidence would indicate that the paramedics checked the accused and could find nothing wrong, however, they did take him to the hospital where he was again checked and required no treatment. He was then taken back to the detention center. The medical records were admitted, confirming no treatment was required at the emergency department. The records note the accused was alert, oriented and coherent.
[22] The accused was given refreshment during the interview. It was the opinion of Sgt. Ashbaugh that the complaints of not feeling well, arose as a ruse to avoid answering questions. The detective on a number of occasions, offered a washroom break, which the accused did not accept. About one third of the way through the interview, Sgt. Ashbaugh left the interview room for about 4 ½ minutes. He observed the accused during that time, as did the court, and all moaning and groaning and retching stopped. The complaints of not feeling well started up again once the Officer re-entered the room. The detective formed the opinion that the accused’s threat of being sick was also an avoidance tactic. The complaints however about chest pain and shortness of breath were brand new symptoms and completely different from the complaints the accused had made earlier. For that reason, the detective decided a doctor should be called and the interview was over.
[23] At one point Mr. Klaric accused the detective of poisoning him with the soft drink that was provided. That would appear to have been impossible given that it was the accused himself that opened the can of the soft drink. The detective indicated that some of the tactics being used by the accused in retching and spitting were almost like he was attempting to make himself sick.
[24] Sgt. Ashbaugh was cross examined about one part of the interview where he indicated to the accused that psychiatric help would be available and he would make sure he got it. Sgt. Ashbaugh indicated he knew there would be psychiatric help available at the jail and he was not intending to leave the impression with the accused that he personally would see that the accused would get such help. He meant that such help was available within the correctional system. He basically said “we are going to get you some help.” Sgt. Ashbaugh did not feel this was in any way a promise in exchange for information from the accused.
[25] Sgt. Ashbaugh was not concerned medically with regards to the accused’s hand. The accused shook the officer’s hand with that hand at the beginning of the interview. The hand was somewhat swollen but simply looked like he had been in a fight. It was not bleeding. He did not complain about it.
[26] Sgt. Ashbaugh indicated that until the end of the interview, he was not concerned with the complaints of the accused of sickness or the way he was acting. He states that such behaviour was not, in his view, abnormal for someone who had just committed a horrendously brutal crime.
POSITION OF THE CROWN
[27] The Crown submits that the accused was fully aware of his rights, that he knew he never had to say anything and that his operating mind was always present and functioning. His will was never overborne. The Crown further argues that no threats were made, nor promises, nor quid pro quo. The accused was never confused, he was always coherent and responsive. If he was feeling unwell, there is no indication in the video that it affected his mental state as he continued to be responsive and coherent.
[28] The Crown urges the Court to find that the issue of a promise of psychiatric help was nothing more than the Officer advising the accused of assistance that was available to him within the system. There was never any request for information as a result of any psychiatric help that was available. Certainly there is no indication in the interview that the accused offered up any information as a result of this discussion of future psychiatric help.
POSITION OF THE DEFENCE
[29] The Defence argues that there has been oppression and that it affected the operating mind of the accused. The Defence also indicated that Sgt. Ashbaugh made a promise and then lied when he said “I will get you some help.” The Defence agrees, however, that there was no quid pro quo regarding the statement of the Officer to get the accused some help.
[30] The Defence also argues that there is reasonable doubt that the complaints of sickness were not an avoidance tactic. The Defence urges me to find that the accused had been sleep deprived, he had a health issue, he lacked sophistication, and he was aggressively questioned throughout by an experienced interrogator and as a result oppressed and his statement was therefore not voluntary and should not be admitted.
THE LAW
[31] The onus is on the Crown if it seeks to rely on any utterances of the accused obtained by persons in authority, to prove beyond a reasonable doubt that such utterances were voluntary in the broad sense. The Supreme Court of Canada had occasion to consider the confession rule in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 and summarized the applicable legal principles as follows:
“While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible if it was made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision.”
[32] The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine demonstrates, the confessions rule also extends to protect a broader conception of voluntariness “that focuses on the protection of the accused’s rights and fairness in the criminal justice process.” Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, the Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons it is inadmissible. R. v. Oickle, supra.
[33] In R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at para. 35 the court stated:
“The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.'s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness "that focuses on the protection of the accused's rights and fairness in the criminal process": J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.”
[34] Protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes are the twin goals of the confessions rule. In that regard the court in R. v. Oickle, supra.at para 33 stated:
“In defining the confessions rule, it is important to keep in mind its twin goals of protecting the rights of the accused without unduly limiting society's need to investigate and solve crimes. Martin J.A. accurately delineated this tension in R. v. Precourt (1976), 1976 ONCA 692, 18 O.R. (2d) 714 at p. 721, 39 C.C.C. (2d) 311 (C.A.):
“Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminal investigation . . .
On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible . . .”
All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of either of these objectives.”
[35] The right to silence as a common law principle reflects the general principle that absent statutory or other legal compulsion no one is obligated to provide information to the police or respond to questioning. The defining statement of this right is as follows:
“In Canada the right of a suspect not to say anything to the police is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. The common law recognizes the individual’s right to remain silent.”
R. v. Singh, supra, at para 27
ANALYSIS
[36] I have no doubt that the video statement given by Mr. Klaric was voluntary and he provided it with an operating mind free of threats, inducements, trickery or oppression. The Respondent was well aware of his rights. He had been told them several times over the course of the evening by different officers and he acknowledged on each occasion that he understood. There is no evidence to the contrary. He had spoken to a lawyer and was well aware of the seriousness of the charges against him prior to speaking to that lawyer.
[37] It is conceded that earlier in the evening the accused had given two voluntary statements, by way of his 911 call and his spontaneous utterances to Officer Martinez, confirming his involvement in this murder. There can be no doubt that he was well aware of the legal jeopardy he was facing.
[38] The accused had slept, albeit for only a couple of hours; he confirmed he had been given food and drink prior to the interview and was offered more during the interview. Likewise, he had had washroom breaks and was offered those as well during the interview which he declined. He never asked that the interview be terminated. He never asked for medical aid. He never asked to be returned to his cell.
[39] Sgt. Ashbaugh is an experienced interrogator. He concluded, after watching the accused from the monitor during a break, that his complaints of feeling sick were an avoidance tactic since he did not display the same symptoms when alone. Likewise, his consistent responses of a total lack of memory were a similar avoidance tactic as his memory was intact for the 911 call and when speaking to Officer Martinez. I conclude, as did Sgt. Ashbaugh, that his complaint of the Officer poisoning his soft drink was a further ruse or avoidance tactic. I agree with Sgt. Ashbaugh, after listening to his evidence and reviewing the interview of the accused that he was simply trying to avoid answering the morally difficult questions asked rather than simply ending the interview or saying he refused to answer. The Officer erred on the side of caution at the end of the interview when the symptoms of the accused significantly changed and he called for medical assistance, which ultimately was not required.
[37] It is significant that when Sgt. Ashbaugh called the accused’s bluff to be sick if he wanted and then took a more aggressive tone in his questioning that the accused then did answer his questions. There was nothing done by the Officer in this interview that would shock the community or could be considered to have overborne the operating mind of the accused.
[38] The argument that Sgt. Ashbaugh made a specific promise of personally getting some psychiatric help for the accused which somehow was an inducement sufficient to raise reasonable doubt about the voluntariness of the statement is without merit and I reject it. It is clear in my view that Sgt. Ashbaugh was not holding out a personal promise of medical help in exchange for a confession. There is nothing in the interview to indicate that the accused thought such a quid pro quo was being offered. It is clear to the court that the officer was simply advising the accused that there was help for him in the future within the correctional system and such help had nothing to do with the interview. There is absolutely nothing in the interview after this exchange to suggest the accused’s mind was overborne by these comments of the officer or that this was some sort of inducement or promise in exchange for a confession.
[37] The Crown has proven beyond a reasonable doubt the voluntariness of the accused’s statement to Sgt. Ashbaugh and the statement, subject to any necessary editing, is ruled admissible.
Arrell J.
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Todd Norman
- and –
Dalibor Klaric
Stephen Bernstein
REASONS FOR JUDGMENT
HSA
Released: June 20, 2017