Court File and Parties
Court File No: CR 17-70000076-0000 Date: 2017-06-22 Superior Court of Justice - Ontario
Re: R. v. Yohan Mortley
Before: S. F. Dunphy, J.
Counsel: Brigid McCallum, for the Crown Anita Nathan, for the Defence
Heard: June 20-21, 2017
Endorsement on Voir Dire: Voluntariness; Hearsay
[1] This is my decision and reasons for decision on a blended voir dire held at the opening of the trial of Mr. Mortley. Mr. Mortley faces three charges arising from a domestic incident on December 15, 2014: uttering a death threat (Criminal Code, s. 264.1(1)(a)), assault with a weapon (Criminal Code, s. 267) and break and enter with intent (Criminal Code, s. 348(1)(d)). He is scheduled to be tried before a judge and jury immediately following the release of these reasons.
[2] This voir dire considers applications by the Crown to secure rulings on the admissibility of a 911 call made by the alleged victim and on a statement given by the accused to police. There is no dispute that the onus for both applications lies upon the Crown and, in the case of the statement by the accused, requires proof beyond a reasonable doubt.
[3] For the reasons that follow, I have decided to allow both Crown applications.
[4] The 911 call virtually narrates the events underlying the charges on a real-time basis and clearly falls within the res gestae exception to the hearsay rule. It is the best evidence of the events and its probative value (very high) is not outweighed by potential emotional impact it may have upon a jury particularly in light of the safeguards available to the accused by reason of the availability of a police statement of the declarant and her sworn testimony at the preliminary inquiry – testimony that was subjected to cross-examination. The Crown has also satisfied me that the evidence is both necessary and reliable under the principled exception to the hearsay rule.
[5] The common law rule regarding the admissibility of confessions is not designed to provide a “do-over” to persons who intentionally provide what they mistakenly believe is an exculpatory statement to police where the mistake in question is self-imposed and cannot reasonably be attributed to any improper state action such as deception or oppression. While tactically unwise in hindsight, the statement was voluntarily given by a declarant who had reasonable access to legal advice, whether or not he chose to avail himself of the opportunity. The Crown has proved beyond a reasonable doubt that the statement was voluntarily made by an accused in full possession of a competent, operating mind and free from threats or improper inducements.
Factual and procedural background
[6] The Crown has brought two applications that it requested to have heard at the beginning of the trial: an application to admit a recording of a 911 call made by the complainant on December 15, 2014 while the alleged offence was occurring under the principled exception to the Hearsay Rule and an application to admit as voluntary a detailed statement regarding the events made by the accused on video shortly after he was apprehended. There was also a preliminary application by the accused to allow the defence to place in evidence a report of a physician who performed a psychological assessment of the accused some time later in connection with the voluntariness application of the Crown.
[7] I heard the application of the accused regarding the expert report first as the outcome of that hearing would have an impact on the conduct of the defence in responding to the Crown’s voluntariness application. For oral reasons given, I found that the expert report would be admissible on the voluntariness application, although I expressed significant reservations as to its potential value or weight given the fact that the report was prepared for an entirely different purpose and was so heavily qualified as to be of exceptionally limited utility.
[8] The voir dire was a blended voir dire in that the evidence tendered by both parties was for the purposes of both Crown applications and argument of both applications proceeded together. I summarize the background to the case based upon the evidence at the voir dire. Obviously, none of the facts shown on the voir dire have been proved for purposes of the trial and these reasons shall not be released for publication until after the jury has rendered its verdict.
[9] The accused was in a relationship with Megan McKay in 2014. They had a five week old together named Kershawn. From the evidence before me, it appears that the relationship was tempestuous. The apartment in which Ms. McKay and her son lived was in her name, although the accused appears to have been a sometime resident.
[10] On the morning of December 15, 2014, Ms. McKay took back her key from the accused and asked him to leave. He did so, taking with him some of his belongings but leaving others, including two computers. He returned to the apartment after work and attempted to gain entry. Ms. McKay would not answer the door. He was sure she was in the apartment and attempted to persuade her to open the door to allow him to remove his belongings by Facebook messages. At some point during this, Ms. McKay phoned 911. Mr. Mortley is alleged to have kicked the door down while she was in the midst of talking to the 911 operator and then to have approached her with a knife and proceeded to threaten her. After a time, he left the apartment.
[11] Police responded to the 911 call within minutes, but Mr. Mortley was gone by the time they arrived. Ms. McKay was unharmed as was their child. Mr. Mortley was apprehended and taken into custody shortly thereafter. He offered no resistance and was co-operative. I shall refer to the evidence of his detention and the statements he made while in detention in more detail below.
Admissibility of 911 Recording
[12] The background to this application is, unfortunately, a not uncommon aspect of cases arising out of incidents of alleged domestic violence. The complainant has become uncooperative and, despite having been subpoenaed, there is some apprehension that she may not come at all or may deny elements of prior statements.
[13] I do not prejudge the performance of a witness who has yet to appear – we shall see what we shall see at that time. If admissible, though, the recording is a stand-alone element of evidence. There is no dispute (and ample evidence to confirm) that the declarant on the tape is Ms. McKay. She confirmed making the call on her statement later that day and identified it at the preliminary inquiry – under oath on both occasions.
[14] The 911 tape was played as part of the evidence on this voir dire. The call was placed at 3:49 p.m. on December 15, 2014 and the recording continues until 3:45 p.m. By way of short summary:
a. The caller identified herself as Megan McKay and the boyfriend about whom she was calling was identified later in the call as Yohan Mortley; b. She gave her address; c. She advised that her boyfriend was breaking down the door to her apartment; d. She told the operator that he was standing in the doorway; e. She uttered what appear to be terrified screams; f. She told operator that he pushed her; g. She told the operator “he grabbed a knife” and was “standing at the doorway”; h. She told the operator that he is taking the baby; i. Further sobs and terrified screams ensued; j. She told the operator that he touched the baby but was not taking the baby and the child was safe; k. After a time, she calmed down sufficiently to advise the operator that she was not hurt and provided a description of Mr. Mortley and an address; and l. She advised that the door was off the hinges.
[15] Police officers arrived on the scene within a few minutes. Indeed, given the recorded timing of their arrival relative to the 911 call, it seems that they arrived downstairs while Ms. McKay was still on the phone on the sixth floor of the apartment building. There were very minor discrepancies in the police evidence of timing from their notes. Constable Gialousis placed the radio call at 3:39 p.m. and his arrival at 3:44 p.m.; his partner in the squad car, Constable Howard, placed the call at 3:42 p.m. and their arrival a couple of minutes later. Nothing turns on such minor differences.
[16] As is apparent from my summary above, the 911 call provides some evidence of virtually all of the essential elements of the three offences with which Mr. Mortley stands charged. Clearly, the weight to be given to such evidence by the jury as trier of fact another matter entirely. The inferences that may be drawn from this evidence may be blunted or countered by other evidence admissible at the trial, but it cannot be contended that it is not probative.
[17] The Supreme Court in R. v. Khan, [1990] 2 SCR 531 reviewed and updated the common law regarding hearsay evidence and described what has become known as the principled approach to exceptions to the rule against the admissibility of hearsay evidence, a category into which the recording of the 911 call clearly falls.
[18] Spontaneous declarations forming part of the res gestae of the offence have long been considered admissible declarations as a traditional exception to the hearsay rule. Following Khan, hearsay evidence remains presumptively inadmissible subject to either (a) the application of one of the traditional exceptions (including the res gestae exception); or (b) admission following a voir dire after a principled consideration of its necessity and reliability in light of the well-known dangers associated with such evidence: R. v. Baldree, [2013] 2 SCR 520, 2013 SCC 35 (at paras. 31-36). The defence submits and I concur as a matter of common sense and a clear implication of Khan that I have a residual discretion to exclude evidence properly falling within one of the established exceptions to the hearsay rule – in this instance, the res gestae exception – if it should appear to me after considering both the necessity and reliability factors that the prejudicial effect outweighs its probative value.
Position of the parties
[19] The Crown submits that the 911 call is part of the res gestae of the offence and is the best evidence of the offence. Even if Ms. McKay appears at the trial pursuant to her summons and co-operates fully, the record of what she saw, felt and expressed at the time of the events will provide better evidence for the jury than any recalled observation more than two years after the fact. The Crown also points to the large number of cases that have favoured the admissibility of 911 recordings in circumstances less compelling and immediate than the present.
[20] As to reliability, the Crown points to the fact that the call was narrating the events in real time as they occurred and the obvious fear an emotion engendered by the events being described as being hallmarks of reliability that place this call well within the parameters of the res gestae exception. The events are corroborated by other evidence: the broken door lying off its hinges was viewed and photographed by police minutes later; Mr. Mortley was found less than an hour later in possession of items matching the description given by Ms. McKay to police during the call. Finally, Mr. Mortley himself provides some corroboration with a text message sent about twenty minutes later suggesting that now Ms. McKay had a reason to leave.
[21] The defence submits that the evidence is not necessary because even if Ms. McKay does not appear, the Crown will have other avenues to prove its case. Ms. McKay testified at the preliminary inquiry and provided a sworn statement to police shortly after the events and that statement was recorded. The Crown can proceed to seek admission of her evidence by that route.
[22] The defence further submits that I ought to give weight to the risk of concoction and decline to apply the res gestae exception in consequence. In this regard, the defence points to the evidence that emerged from the preliminary inquiry evidence of Ms. McKay (the transcript of which was part of the Crown’s application) regarding the context in which the incident occurred. That context included indications that the complainant suffered from postpartum depression and lack of sleep at the time, that she had been having a fight with the accused and threatened to leave him and take their child to live with her mother and that the accused had sent her hurtful and indeed vicious text messages earlier that day. All of these, the defence submits, provide a context from which possible motive to fabricate might be inferred.
[23] The defence further submits that the evidence from the call has been shown to be of suspect reliability in the preliminary inquiry testimony of Ms. McKay. In that testimony, Ms. McKay suggested that she might not have actually seen the knife she mentioned to the call-taker during the 911 call.
[24] The defence also submits that I have and ought to exercise residual discretion to exclude the recording on the basis that its prejudicial impact will outweigh its probative value. The emotional reaction to the screaming and fear demonstrated by the complainant in the recording might influence the jury unduly.
Analysis and discussion
[25] In my view the recording of the 911 call fits clearly within the res gestae of the offences charged, the evidence is both necessary and reliable and I ought not to exercise my residual discretion to withhold from the jury such highly probative evidence.
[26] In R. v. Nicholas, 2004 ONCA 13008, Abella J.A. recited with approval the description of the res gestae exception to the hearsay rule given in Khan (at Nicholas para. 89)::
“[A] spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive or misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.”
[27] The 911 call in this case falls clearly within the res gestae exception. It was not made after the fact – it was made during the event and narrates it. The stress and pressure of the moment are manifest in the recording and leave nothing to doubt. The same is true of the spontaneity of the declaration.
[28] The risk of concoction is also remote. I can give no weight to the mere suggestion of a risk of concoction. While the declarant (Ms. McKay) admitted under cross-examination at the preliminary inquiry to a number of stressors that might be argued to have provided her with some motive to concoct, her evidence taken as a whole is a long way from admitting that she fabricated or concocted anything. At the limit she admitted that she might have imagined seeing the knife while her eyes were closed. That evidence is itself suspect as more likely representing a change of heart than a change of memory of observations made and described while they were occurring – that, however, is a matter for the jury to consider and weigh should the occasion arise. I note that she also admitted during the preliminary inquiry that she was seeking to reconcile with Mr. Mortley and did not want the father of her child to have a record. Further, the thesis that her eyes were closed appears highly problematic given the real-time narration of observed events given during the call.
[29] The statement itself was clearly a contemporary and spontaneous narration. It is also corroborated by contemporary external evidence including a text message from the accused shortly afterwards, the police observations of the door lying broken and off its hinges minutes later and the apprehension of the accused shortly afterwards in possession of items fitting the description she had just given. The idea that the declarant could have had the presence of mind statement to consciously fabricate the statement in whole or part while under the stress of a break and enter that is not disputed by the defence is absurd and is in any event a matter the jury will be well equipped to consider. The evidence before me (at this stage at least) does not rise to the standard of establishing more than a speculative suggestion of fabrication.
[30] In my view the evidence is also admissible applying the principled exception to the hearsay rule. This requires a consideration of both necessity and reliability in light of potential dangers of hearsay evidence (and a consideration of what safeguards, if any, may be necessary to mitigate such dangers).
[31] The requirement of necessity is not an absolute one. In this context, necessity means “reasonably necessary”: Khan (at S.C.R. p. 546). In Khan the Court considered the difficulties inherent in obtaining evidence from children in the case of sexual assault involving children. The present case is obviously not identical, but presents many parallels.
[32] Protecting victims of domestic violence poses a number of unique challenges to society. Victims may be co-operative one day and resentful the next. Victims may seek to reconcile with the accused; they may share parenting responsibilities with an accused. The turbulent ebb and flow of emotions within such relationships can be both intense and unpredictable. However, the harm that is done when domestic violence is able to persist unchecked is undoubted and presents an immense challenge to society. Accommodating the unique characteristics of victims without compromising the rights of the accused requires a delicate balance to be struck.
[33] While it is true that other statements of the complainant are available and may, upon application being made, ultimately be admissible in evidence even if she fails to attend, it is also true that far and away the best existing evidence of the events of that afternoon of December 15, 2014 is the contents of the 911 call.
[34] In my view the evidence satisfies the requirement of necessity on the facts of this case.
[35] I turn now to consider reliability. In my view the spontaneous and unrehearsed nature of the call is as manifest as its reliability. As noted above, the statement is partially corroborated by police evidence of the splintered door off the hinges witnessed minutes later and the apprehension of Mr. Mortley in possession of items described by Ms. McKay during the course of the call. It is also corroborated in part by a text message sent by Mr. Mortley about 20 minutes after the event to the effect that Ms. McKay now had a reason to go home as she had earlier threatened to do. It is partly corroborated as well by the observations of the demeanor of Ms. McKay made by police officers within minutes of the event. These and the content of the call itself are strong guarantors of its reliability.
[36] The main issue with reliability is the fact that Ms. McKay sought to minimize or qualify much of what she said during the call when she testified at the preliminary inquiry. She did not deny making the call or Mr. Mortley violently breaking the door down. There are, to put it mildly, very significant doubts as to the reliability of the preliminary inquiry evidence. That however is not an issue for me today. Ms. McKay has not yet testified and the jury shall see and hear what she has to say when she says it. If she fails to testify, her two prior sworn statements are available and both parties have the ability to bring such applications as they are wont to do in order to bring all or parts of that evidence to the jury’s attention.
[37] In my view, the rights of the defence can adequately be safeguarded at trial.
[38] Finally I consider prejudicial impact.
[39] The call is clearly an emotional piece of evidence. The Crown described the shrieks of Ms. McKay on the call as blood curdling and I am in no position to disagree with that description. Ms. Nathan urges me to exclude them as a matter of my residual discretion. She relied upon a number of cases including that of M. G. Quigley J. in R. v. Kamal Barua, 2012 ONSC 1817. In Barua, a 911 recording was excluded from evidence because of the prejudicial effect of the high emotions shown on the call. While I appreciate that there are parallels that can be drawn with the highly emotional sound of the victim’s screams heard in the present recording, the cases are quite different.
[40] In Barua, the 911 call was made by a third party – the mother of the alleged victim – after the event had occurred and recorded what the victim had allegedly told her shortly before the call. The defence in that case was that the mother had manipulated the victim into making the allegation for ulterior motives. In Barua the emotions expressed by the mother, at their core, merely served to underscore the degree to which the mother (allegedly) believed her son’s allegation of sexual assault. Another word for that is oath helping, something that would normally be neither admissible nor probative. The actual question in that case was whether the evidence could be called in re-examination to counter the defence suggestion of concoction.
[41] In the present case, the call is made by the actual victim and the call was made during the actual events. The screams that punctuate the call are not after-the-fact expressions of emotion but emotions arising in the moment from which the jury may be able to draw useful and highly probative inferences if it chooses to do so.
[42] I return to the simple fact that as raw and emotional as the evidence may be, it remains the best evidence of what actually happened and contains highly probative evidence of the existence of a threat as well as its immediacy and seriousness, all relevant elements to the charge of assault with a weapon. Juries are called upon to deal with more disturbing evidence than this on a routine basis. I would not exercise my discretion to exclude it.
Admissibility of Statement of Accused
[43] The accused gave a detailed statement to police at 6:46 p.m. on December 15, 2014 at the police station [^1]. The statement was recorded on good quality video and audio. While Mr. Mortley’s English is somewhat accented, it is readily understandable. A transcript with some errors (noted by me when comparing) was prepared by police. The officers who took the statement, Detective Constable Shanly and Detective Constable Khazzouh, both testified at the voir dire.
[44] The arresting officers, P.C. Howard and Gialousis, gave evidence about the arrest of Mr. Mortley. There was nothing extraordinary in this testimony. He was co-operative and calm. He was given his right to counsel and read his constitutional rights pursuant to the standard caution that both officers kept on hand in their notebooks for the purpose. While the independent memory of such a routine event might be limited with the passage of time, both officers were quite sure that Mr. Mortley was read his rights and indicated that he understood them. The booking video showing the arresting officers bringing Mr. Mortley to 51 Division for booking was also entered into evidence and contains some confirmation of this routine fact.
[45] In the booking video, P.C. Gialousis can be heard telling the booking sergeant in the presence of Mr. Mortley “He has been given his right to counsel and he states that he understands. He does not have his own lawyer but he does wish to speak to duty counsel. We’ll place that call for him”. Mr. Mortley was then asked by the booking sergeant if he understood “everything the officer just said”. He agreed that he had. He was then advised by the sergeant that “you have the right to speak to a lawyer or to counsel. You’d like to speak to duty counsel?” He responded: “You say I got a free lawyer?” He was then told: “Yeah, duty counsel. That’s a free service for you”. He responded “yeah, let’s do that”.
[46] D.C. Shanly and D.C. Gialousis took over responsibility for the investigation that afternoon. After taking the statement of Ms. McKay, they proceeded to see Mr. Mortley who, after having been searched by the arresting officers was placed in a holding room at 51 Division.
[47] D.C. Khazzouh spoke to Mr. Mortley while he was in custody prior to the statement being given at 6:46 p.m. – he asked him basic background questions necessary for the show cause hearing documents (confirming such details as employment, etc.) and took him to the bathroom when requested at 6:26 p.m. Mr. Mortley had no requests to make of him.
[48] D.C. Shanly spoke to Mr. Mortley at 6:42 p.m. – only a couple of minutes before the video statement. He identified himself and his status as investigator. He confirmed that Mr. Mortley had spoken to duty counsel. He asked if Mr. Mortley wished to make a statement and was advised that he did. After setting up the video room, he accompanied Mr. Mortley to the room where the statement was given and video recorded. The conversation preceding the video recording was brief and Mr. Mortley appeared normal. D.C. Shanly denied making any promises or threats.
[49] The following is a brief summary of the statement recorded on video:
a. Mr. Mortley was advised that he was being recorded and given the names and status and rank (as police officers) of the two investigating officers; b. He was asked to confirm that he had just spoken to duty counsel (he did so); c. He was asked if had understood everything duty counsel said to him and replied “not too much, she was just talking”; d. When asked if you wished to speak to duty counsel further, he replied “not really” and “it’s all right”; e. He was advised of the charges he faced and asked questions about them, stating “I don’t understand the mischief and assault because I never touched the person”, but agreed that even if he didn’t agree with the charges, he understood that he was charged with these things; f. He was advised “you’re not obliged to say anything unless you wish to do so” and responded “OK”; g. He was then advised “all this means is that you don’t have to talk to us if you don’t want to. Ok. And anything you do say to us we can use in court” and answered “I’m hoping by talking to you it could help the case because I don’t need to be here”; h. He was then told that he must understand “we’re not promising you anything” and agreed “”no, no, no, I’m not saying you promise”; i. He was told that “it’s completely on you” and signified his agreement; j. He was told that if anyone else in a position of authority had spoken to him in connection with this matter, he must clearly understand that it should not influence him in making a statement and agreed with “yeah”; k. After the foregoing cautions, Mr. Mortley was simply asked: “So Yohan, what do you have to tell us? What happened today?” There followed an uninterrupted monologue lasting several minutes where he described the dispute between himself and Ms. McKay that day and described, among other things, breaking the door down, proceeding to the kitchen to get the knife and then acted out with a stabbing motion towards the throat of the police officer what he did with the knife but denied intending to hurt her and claimed still to love her; l. After further questioning, he repeated that he did not mean to harm her and said “I’m just talking to you now, so you could hear me out, hopefully try to help me”; m. He asked whether he would be let out if she says “forget everything” and expressed the view that going ahead with the charges in that case is “against my Constitutional rights”; and n. He denied “holding a knife to her” and then said “I just did …” while making a stabbing motion with his fist and then laughed acknowledging “well, that’s holding a knife”.
[50] The defence called two pieces of evidence: the expert report of Dr. McDonald and the testimony of Mr. Mortley.
[51] Dr. McDonald’s expert report is one that I had previously ruled was admissible despite the significant reservations I expressed as to its utility. Having heard all of the evidence, my reservations were fully justified.
[52] Dr. McDonald reached the “likely” diagnosis that Mr. Mortley has “mild mental retardation” and is “clearly limited cognitively”. Dr. McDonald expresses numerous limitations to his report, including his complete lack of patient history. For all intents and purposes, his sole source of information was Mr. Mortley himself. The report was prepared for an entirely different purpose than the question before me on this application.
[53] Importantly, Dr. McDonald gave Mr. Mortley a caution about the non-confidential nature of the assessment he was conducting and concluded “he appeared to understand these remarks in general terms”. He went on to note that Mr. Mortley asked to go “off the record” from time to time, a request that indicates to me that he possessed a clear understanding of the concept of statements being used against him in court (if “on the record”), an observation that must be qualified to some degree by the time in which it was made (well after the events in question here).
[54] Mr. Mortley testified. In marked contrast to his demeanor in the video statement, Mr. Mortley testified in chief in hushed tones, sometimes barely above a mumble. He was almost expressionless and answered with short, toneless answers. He was only slightly more animated during his cross-examination.
[55] In chief he was asked about the arrest process. While claiming to recall none of the words of the caution he was given, he did agree he was told “something about a lawyer” and he understood from this “you need a lawyer”. He was asked if he was told that he didn’t need to say anything but whatever he did say could be used against him. He agreed that he did remember “something like that” but said proceeded to testify that what this meant to him “if I act rowdy or act violent, they will use that against me”.
[56] This testimony today about what he understood of these words two and a half years ago is as baffling as it is enigmatic. It bears no apparent relationship at all to the actual words that he acknowledged understanding at the time and to the words he remembers hearing.
[57] On cross-examination he was unable to give any credible reason for why he would have understood this clear statement as about whatever he may say being used against him as having anything to do with how he might act while in police custody. His real understanding may have been revealed somewhat more accurately when he asked rhetorically why he would say something to the police if it was going to hurt his case – as I have noted, his self-induced notion of the law was such that he had the idea that what he was saying would help his case. That poor judgment, however, takes him well beyond the parameters of operating mind as I shall discuss further below.
[58] He testified that in the police car one of the officers asked him “why did you pull a knife on your baby momma” and he described himself as shocked, saying “she said that?” Neither arresting officer recalled or made a note of such a question being asked. The Crown’s application obviously did not extend to the admission into evidence of this statement if it was in fact given. I do not find it necessary to make a finding one way or the other as to whether this was in fact said.
[59] Although he spoke to duty counsel, Mr. Mortley claimed to have understood little of what she had to say, denied that he understood anything about his legal rights and denied even knowing she was a lawyer. Although he claimed to understand duty counsel was only to refer him to a lawyer, he did not get a referral.
[60] Mr. Mortley gave evidence about an alleged discussion with D.C. Shanly immediately preceding his statement that was quite at odds with the description of the conversation given by P.C. Shanly. Mr. Mortley expanded upon the details he attributes to this conversation during his own cross-examination. Without delving unduly into the details of his evidence, it is sufficient for me to note that taken at its highest, Mr. Mortley’s evidence does not approach the standard of “inducement” as that term has come to be defined by the case law. At the highest, Mr. Mortley does no more than (i) attribute to D.C. Shanly at attempt to appear as his friend; (ii) an expression of the general idea that “if you tell us what we need to know maybe I can help you”; and (iii) suggests that Mr. Mortley was not given the choice of making a statement but simply told “I need you to come to talk to us”.
Position of the parties
[61] The Crown takes the position that Mr. Mortley was clearly in possession of an operating mind at all times. Ms. McCallum suggests that I ought to conclude by reason of the contrast between his behaviour on the video and his demeanor in court that Mr. Mortley is entirely lacking in credibility and is adopting a stance of subjective ignorance to deceive me. There is no suggestion of deception or other misconduct of the police in this case. The evidence of the four officers who testified as to the cautions given to and understood by Mr. Mortley is to be preferred. The expert evidence of Dr. McCallum is of no assistance and at significant risk of having been tainted by the same “acting” that the Crown suggests characterized the testimony of the accused in court.
[62] The defence urges me to accept the diagnosis of Dr. McDonald as to the limited cognitive capacity of Mr. Mortley. In addition, the defence submits I should accept the evidence of Mr. Mortley that (i) he was given no choice about making a statement; (ii) he did not understand that any statement he might give could be used in evidence against him; and (iii) that he did not in fact receive legal advice that was able to overcome these failings. The result, the defence submits, is that Mr. Mortley lacked an operating mind when he made the statement and the statement should be excluded for that reason.
Analysis and discussion
[63] There is of course no dispute that this application is the Crown’s onus and the voluntariness of the statement must be proved beyond a reasonable doubt. The test, as refined by the Supreme Court in R. v. Oickle, [2000] 2 SCR 3, 2000 SCC 38, requires me to consider the existence of threats or promises, the existence of oppression, the presence of an operating mind or the existence of “other police trickery”.
[64] The principle issue raised in this case is the question of the operating mind of Mr. Mortley. The “operating mind” standard is a very low one, even if it must be proved beyond a reasonable doubt. Operating mind in relation to the confessions rule requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused: R. v. Whittle, [1994] 2 SCR 914, 1994 SCC 55. This does not mean the wisdom to make wise choices.
[65] Since the Crown’s obligation is to prove voluntariness beyond reasonable doubt, I shall consider the evidence before me in light of each of the criteria that must be reviewed, not merely the operating mind question.
[66] There is nothing at all in the evidence to suggest that any threats were employed in this case and the defence makes no such suggestion. The police behaviour was at all times professional and respectful. While being in custody and in a police cell at a police station would be a stressful situation for any person, the relative calm and easy demeanor of the accused on the statement video is plain and obvious.
[67] Mr. Mortley testified that he was told that he had to give a statement. His evidence in chief was considerably less categorical on the point. I have no hesitation in finding that there was no compulsion in fact. D.C. Shanly described a purely routine and low-key discussion with Mr. Mortley preceding the video interview. His evidence, and indeed, the evidence of all four police officers who testified was quite credible and I have no hesitation in accepting it. Even if D.C. Shanly had used language suggesting a requirement to come to the interview room for questioning instead of asking the accused to attend the interview room for questioning – and I do not so find – the right to silence does not extend to the right not to be questioned. The police had every right to question Mr. Mortley in connection with their investigation providing that they did so in a manner that respected the rights of the accused to remain silent if he so chose. The recorded interview itself makes it quite clear that Mr. Mortley was advised of that right in no uncertain terms and his understanding of that right was clearly acknowledged by him. There is simply no reasonable basis for me to prefer the subjective, implausible and more than a little self-serving testimony at this hearing of what he thought at the time to the contemporary audio and video recording evidence that leaves no doubt about what he did and did not understand at the time.
[68] What emerges from a review of the entire statement is (i) there is no sign of any pressure or tension in the room; (ii) Mr. Mortley appears both calm and relaxed; (iii) he spoke easily, animatedly and at length with little to no prompting for most of it. Two further conclusions appear to me to be equally inescapable from reviewing the statement. Firstly, Mr. Mortley was operating under the mistaken view that the he would be clear of the charges if he could persuade the police that he meant only to threaten or scare but not harm Ms. McKay. Secondly, and equally clearly, he held the mistaken view that if Ms. McKay withdrew the charges (as he was confident she would do in a day or two), the charges would be dropped and he would be clear.
[69] There is nothing in the evidence before me to suggest that any person in authority was in any way responsible for Mr. Mortley having harboured those two mistaken beliefs in the law. They were the objects of his own thought processes. He did not communicate them in advance to anyone nor did he indicate to any police officer that his decision to make a statement was motivated in whole or in part by those clearly mistaken beliefs.
[70] I find beyond a reasonable doubt that the statement was not coerced by threats or otherwise to make his statement. The statement was, instead, the product of an accused who felt a pressing need to explain his actions premised on mistaken views of the law that he arrived at on his own without any involvement of persons in authority.
[71] The evidence of the accused raises at least some suggestion of promises or inducement having been made. The only suggestion of anything coming within shouting distance of an inducement or promise is the contested evidence of whether D.C. Shanly indicated to him “maybe I can help you” were he to give a statement. Inducements become 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: Oickle at para. 57. There was no quid pro quo alleged by Mr. Mortley. The evidence of Mr. Mortley about what D.C. Shanly is alleged to have said is a very, very long way from that standard. I have in any event not accepted Mr. Mortley’s evidence in this regard nor has it raised a reasonable doubt in light of the credible evidence of D.C. Shanly and other problems that surfaced with Mr. Mortley’s evidence.
[72] I find beyond a reasonable doubt that there were no improper inducements or promises from a person in authority that motivated the statement.
[73] There is simply no evidence or even suggestion of oppression or police trickery arising from the record before me nor did the Defence seek to advance such a position.
[74] I must therefore consider whether Mr. Mortley the statement was the product of an operating mind. In my view, there can be no question that it was.
[75] As I have observed, the requirements of an operating mind is not a high threshold. The evidence satisfies my beyond any doubt that Mr. Mortley cleared this threshold by a very wide margin at the time he gave his statement is overwhelming. Among the factors I have considered in reaching this conclusion:
a. Mr. Mortley is a graduate of a good school – Robert Borden C.I - and had a year of post-secondary studies to his credit as well; b. He has successfully managed to maintain a significant social media presence to promote his music business, has self-produced six albums on the internet with music and/or lyrics written by him; c. He has two children and has been involved in caring for one of them as an infant; d. He has worked for many years with a number of different employers and has managed his own affairs, rented apartments and the like for a number of years without assistance; e. The post-secondary study program he followed for one year was in “Police Foundations” and involved, among other things, a number of field trips to police stations – he was more familiar with them than many might be; f. This incident was the fifth time Mr. Mortley had been arrested, each time involving processing that would certainly have involved as a matter of routine being read his legal rights on a number of occasions; g. He has been held in cells for more than a day before, has been through the process of show cause hearings and bail, has been through a number of court proceedings, including a number where he was assisted by duty counsel who spoke on his behalf; h. He has applied for legal aid in at least one of his cases; i. He has represented himself on some of his cases and, in that connection, received disclosure from Crown counsel and participated in resolution discussions; j. On the day of the incident, he was appropriately cautioned and signified his understanding without raising any question on several occasions, two of which are captured on video; k. He admitted hearing the cautions and their gist when examined in chief; l. Although he showed himself ready willing and able to raise questions when he had them, he signified understanding of the cautions given him without reservation; and m. The witness on the statement video was as animated and relaxed as Mr. Mortley was stiff and minimally responsive when testifying in court at this trial.
[76] The expert evidence of Dr. McDonald is a long way from casting doubt upon the operating mind of Mr. Mortley at the time of the statement, suggesting at most only a mild level of cognitive impairment. It was prepared some time later and in answer to an entirely different question. It was subject to numerous very important limitations. Its probative value to the question of operating mind is slight and raises no reasonable doubt. To the contrary, to the extent Dr. McDonald can be taken to express a view on operating mind, he would appear to find in favour of Mr. Mortley having understood the caution he was given that his discussion would not be confidential – an understanding that Mr. Mortley confirmed with his requests to go “off the record” with the doctor.
[77] Having heard all of the evidence, I cannot attach any weight to Mr. Mortley’s claim at this stage not to have understood that duty counsel was a lawyer or that any statement given by him could be used against him. His history of using duty counsel, the booking video where he clearly referred to duty counsel as a “free lawyer” all confirm this. The interpretation he claimed to place on the cautions he received is utterly implausible and bears on relationship to the plain words whose meaning I have no hesitation in concluding he understood these at all times.
[78] From the findings I have made, there can be no doubt that Mr. Mortley possessed an operating mind. His judgment may well have been clouded by a curiously idiosyncratic and undoubtedly erroneous view of the law, but of his capacity to understand his right to silence and the minimum consequences of choosing to speak to police there can be no doubt. The law requires no more of him to find his statement to be voluntary. I so find.
Disposition
[79] In conclusion, I am ruling as follows:
a. The recording of the 911 call is admissible into evidence for proof of its contents by the Crown; b. Either party may make or proceed with such applications as appear necessary with regard to the admission of either or both of the transcript of her testimony at the preliminary inquiry and her statement to police after it is known whether Ms. McKay will in fact appear to testify; and c. The statement made by Mr. Mortley to police on December 15, 2014 is declared to be voluntary and therefore admissible in evidence at the trial.
S.F. Dunphy, J.
Date: June 22, 2017
[^1]: The time stamp on the video is different but D.C. Shanly reads the time from his watch at the beginning. Nothing turns on the exact time but I accept D.C. Shanly’s contemporary evidence as the more accurate.