Court File and Parties
COURT FILE NO.: CR-16-0007 DATE: 2017-06-15
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN T. Schuck, for the Crown
- and -
JONATHAN GREEN R. Sinding, for the Accused Accused
HEARD: April 11, 2017, at Fort Frances, Ontario Mr. Justice W.D. Newton
Reasons on Application
Overview
[1] This is an application by the Crown to tender in evidence a videotaped statement made by the accused, Jonathan Green, on June 10, 2014.
[2] Jonathan Green is charged with sexually assaulting K.B. on November 23, 2012. Mr. Green argues that the statement is involuntary primarily because he received not even the standard caution and right to counsel but no caution whatsoever.
The Facts
[3] The only evidence on this application was the testimony of Constable Hyatt and the videotaped statement. Mr. Green did not testify.
[4] In the early morning hours of November 23, 2012, K.B. was found outside a residence in Fort Frances distraught and with some injuries. Apparently she had no memory of the preceding hours. It was thought that she might have been sexually assaulted. She was taken to hospital where an examination was undertaken. A “rape kit” examination was completed and male DNA was discovered.
[5] The investigation was dormant for some time. Constable Hyatt transferred into the Crime Unit and continued the investigation. Previously, it had been determined that the complainant was in a local bar with others including Mr. Green. There was some evidence that the complainant was seen outside the bar with Mr. Green and another male after closing, approximately five to six hours prior to the complainant being found distraught and with no recent memory.
[6] Constable Hyatt testified that he did not believe that Mr. Green was a “person of interest” because there was no evidence to suggest that he had any involvement other than being seen outside the bar with the complainant.
[7] Constable Hyatt spoke to Mr. Green by telephone on June 10, 2014 and told him what he was investigating. Constable Hyatt testified that Mr. Green said that he had some recollection of the evening and that the complainant had come up to his residence to give him a quote for some cleaning and that she left shortly thereafter. He said that she was fine when he left. According to Constable Hyatt, Mr. Green said that he was “happy to come and provide a statement.” The officer felt that Mr. Green was “inconsistent” with respect to whether anyone else attended his apartment.
[8] Shortly after this telephone call, Mr. Green attended at the police station. He was taken to an interview room and consented to the audio and the videotaping of the interview. He was interviewed in a room with the door closed. The door was not locked. The officer identified himself and stated the purpose of the interview. Mr. Green was not cautioned in the standard way (right to counsel, right to remain silent, the warning that anything he said might be used against him in court) or at all as the officer considered Mr. Green a witness only. Specifically, he was not told that he did not have to make a statement, that he could leave at any point in time and that his statement could be used against him. Mr. Green was not told that male DNA was discovered during the rape kit examination.
[9] Much of the interview focused on trying to determine the identity of the other individual. The information that the complainant attended his apartment and provided a quote for cleaning was reviewed. The officer testified that no promises were made to Mr. Green and that Mr. Green was not told that he was required to give a statement. The officer testified that he did not consider detaining Mr. Green at any point during the statement.
[10] Towards the end of the interview the following exchange occurred:
Darren Hyatt: Have you guys ever had anything other than a friendship? Like, have you ever had… Mr. Jonathan Green: No. Darren Hyatt: …a sexual relationship with her? Mr. Jonathan Green: No. We’ve been friends for, like, a long time. Darren Hyatt: Okay. So you’ve never had a sexual relationship with her ever? Mr. Jonathan Green: No. No. Not at all.
[11] When asked why he posed those questions Constable Hyatt said:
Well had he said he had had consensual sex with her then clearly I wouldn’t be investigating a sexual assault anymore. I mean my victim had no recollection of the evening. So I mean her non-recollection and him saying they had consensual I would have nothing to do but to take his word as fact.
[12] Constable Hyatt gave a similar answer in cross-examination and even in re-examination in which he said “I mean clearly if I have him saying that it was a consensual thing I would have no grounds to believe any otherwise than other what Mr. Green was telling me.”
[13] After completing the interview, Mr. Green left.
[14] Thereafter, Constable Hyatt reviewed the surveillance videotape from the bar and interviewed other witnesses to ascertain the identity of the person seen with Mr. Green and the complainant. He was unsuccessful. By mid-July 2016, Constable Hyatt started to ask males who were present at the bar that evening for consent DNA samples and some provided consent samples. Some of the males present at the bar that night were already in the national DNA databank and so were excluded. On July 16, 2014, he contacted Mr. Green asking for a consent sample and Mr. Green refused.
[15] As a result of that refusal Constable Hyatt enlisted the assistance of other police services to obtain a “castoff” sample (a cigarette butt) from Mr. Green. The “castoff” sample led to a search warrant for the taking of a DNA sample from Mr. Green. The DNA results led to Mr. Green’s arrest.
Positions of the Parties
[16] Counsel for Mr. Green argues that the caution was required because Mr. Green was a suspect at the time of the questioning. Counsel points to the fact that Mr. Green was seen in company of the complaint on leaving the bar and the fact that within five or six hours of leaving the bar, the complainant was found distraught and with no memory of the preceding hours approximately four blocks from Mr. Green’s apartment. Constable Hyatt knew that male DNA was found when the rape kit was completed with the complainant and that the complainant had no memory of any sexual contact. Further, counsel argues, once Constable Hyatt ascertained in the telephone call with Mr. Green that the complainant was in Mr. Green’s apartment after the bar, the index of suspicion would have risen to such a level requiring a caution before the videotaped statement. The absence of any caution that included a clear pronouncement that Mr. Green did not have to answer any questions puts voluntariness in question.
[17] The Crown argues that both the telephone and audio and videotaped statements were voluntary. The Crown argues that Mr. Green was not detained and that there were no improper promises or inducements or oppression. The Crown argues that Mr. Green was interviewed only for information and that he was not a suspect.
[18] However, the Crown candidly rejected Constable Hyatt’s rationale for asking Mr. Green whether he ever had a sexual relationship with the complainant. She quite correctly disagreed with Constable Hyatt’s assertion that a statement from Mr. Green that the sex was consensual would end the investigation given the condition in which the complainant was discovered.
Analysis and Disposition
[19] Central to the consideration of the issue in this application are the “twin goals” as set out R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3:
33 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), 18 O.R. (2d) 714 (C.A.), at p. 721:
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.
[20] The Crown must prove beyond a reasonable doubt that a statement is made voluntarily. This has been described as a “heavy burden that requires the Crown to remove all and any reasonable doubt that if the statement was made, it was not as result of factors such as improper quid pro quo inducements, oppression, or because the accused’s mind was not “operating.” (See D.M. Paciocco and L. Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law Inc., 2015), at p. 350)
[21] As Trotter J., as he then was, said, “…the critical question is whether the will of the accused was overborne by the conduct of the police and the accused – police encounter.” (R. v. Alas, 2016 ONSC 5709 at para. 31)
[22] Having reviewed the videotape and having heard Constable Hyatt’s testimony, I am satisfied that Mr. Green was not detained. I conclude that Mr. Green willingly attended at the police station to provide information and that there is nothing either in the initial circumstances of the interview or the initial conduct of Constable Hyatt to suggest that Mr. Green was “overborne.” I am also satisfied that, when the interview commenced, Mr. Green was not a suspect. The conduct of Constable Hyatt in subsequently attempting to ascertain the identity of the other male supports this conclusion.
[23] Nevertheless, I am troubled by the questions posed to Mr. Green about whether he had a sexual relationship with the complainant. Those questions represented a shift in Constable Hyatt’s investigation. At that point, he moved from attempting to ascertain the identity of the other male to directly asking Mr. Green a question that could implicate him as the source of the male DNA.
[24] As was stated by the Court of Appeal in R. v. E. B., 2001 ONCA 194 at para. 88: “Even where a person is a suspect, the absence of the standard caution is only one factor to be considered in the voluntariness analysis - just as the presence of such a caution does not automatically lead to the conclusion that a statement is voluntary.” In E. B. the accused was informed that the police believed the death in question was “suspicious,” that he did not have to make a statement and had the right to choose whether to do so or not and that he might be a witness at trial and, further, that his statement could be used against him. In E. B., the court concluded that the accused knew that he was considered a person of interest.
[25] Up to the point of the questions regarding sexual contact with the complainant the questioning dealt primarily with ascertaining the identity of the unknown male. I have found that Mr. Green was not detained. I accept Constable Hyatt’s evidence that he never considered detaining Mr. Green at any point in time, even after the questions about possible sexual involvement with the complainant. Constable Hyatt’s attempts to identify the unknown males thereafter supports his assertion as does his DNA investigation of others.
[26] Although he attended voluntarily, Mr. Green was never once told that he did not have to answer any questions or that he could leave at any time. The absence of such a warning is a factor to consider, but there is no evidence before me to suggest that Mr. Green believed he was compelled to answer or “overborne.” None of the Oickle concerns, inducements or oppressions, were present. Nothing suggests that Mr. Green did not possess an “operating” mind.
[27] Therefore, I rule that the videotaped statement is voluntary and admissible in evidence.
“original signed by” The Hon. Mr. Justice W.D. Newton