Court File and Parties
COURT FILE NO.: CRIMJ(F)659/14 DATE: 2017-01-19
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Sabrina Montefiore, for the Applicant Applicant
- and -
PATRICIA MORGAN E. Ghebrai, for the Respondent Respondent
Reasons for Ruling
Barnes, J.
[1] Patricia Morgan returned to Canada from Jamaica on July 12, 2014. She arrived at Pearson International Airport at 7:00 p.m. Ms. Morgan was detained and subsequently arrested by Canada Border Services Agency Officials (“CBSA”) and the Royal Canadian Mounted Police (“RCMP”). In custody Ms. Morgan excreted a total of 127 pellets of Cocaine with an approximate weight of 1028.7 grams. Ms. Morgan is charged with importing Cocaine into Canada contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, C. 19. The Crown seeks to introduce statements Ms. Morgan made to CBSA and RCMP officers.
Statements in Issue
[2] The statements fall into four categories. The first category is statements Ms. Morgan made to CBSA Officer Cullen. These statements were made before Ms. Morgan was told that she will be subject to a physical search. Ms. Morgan was told she would be subject to a physical search at 9:10 a.m. She was read her rights to counsel and cautioned.
[3] CBSA Officers Walker and Tetley conducted a physical search of Ms. Morgan. The second category of statements is statements Ms. Morgan made to CBSA Officers Walker and Tetley while in their custody.
[4] At 7:34 a.m. on July 13, 2014, Ms. Morgan was handed over to RCMP Officers Castrillon and Edwards. Ms. Morgan made two sets of statements to the RCMP Officers. The first set of statements were not audio or video recorded. This is the third category of statements.
[5] On July 13, 2014, Ms. Patricia Morgan provided an audio and video recorded statement to RCMP Officer Edwards. This recorded statement falls in the fourth category.
[6] Ms. Morgan argues her statements were involuntary. A voir dire was held to determine whether these statements were provided voluntarily.
Law
[7] Travellers at Canada’s borders are under a statutory duty to submit to routine questioning, luggage searches, frisks, pat down searches, answer routine questions and co-operate with border officials. A traveller who answers untruthfully is subject to prosecution and penalties. See Customs Act, R.S.C. 1985, c. 1, ss. 11, 153 and 160; R. v. Jones, 2006 ONCA 28086, [2006] O.J. No. 3315 (Ont. C.A.), Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, (1992) 20 C.R. (4th) 34 (S.C.C.). A person is not detained when border officials conduct routine searches and ask routine questions: see R. v. Simmons, [1988] 2 S.C.R. 495 at p. 312 and R. v. Darlington, 2011 ONSC 2776, [2011] O.J. No. 4168 at paras. 75-76. Detention at the border occurs when border officials have “a sufficiently strong particularized suspicion” that an offence has been committed to warrant a more intrusive search: see Jones at paras. 40-42, R. v. Sinclair, 2016 ONSC 877.
[8] The Crown bears the burden of proving that the statement made by the person detained to a person in authority is voluntary. The Crown must prove this beyond a reasonable doubt in a voir dire. The Judge must examine the circumstances under which the statement was made to determine whether the statement was made voluntarily. This is a fact driven inquiry and analysis. Some factors to be considered include whether the person who made the statement had an operating mind at the time the statement was made, i.e. the person making the statement must understand what she is saying and that the statement will be used against her; whether the statement was made as a result of a threat or promise, inducement, oppression, violence, trickery et cetera: R. v. Oickle, [2000] 2 S.C.R. 3.
[9] The fact a statement is not taken down verbatim does not mean that the statement will be ruled involuntary. The jury (trier of fact) must be instructed that it is up to them to decide what the accused said and whether what the accused said was true: R. v. Herbert (1990), 60 C.C.C. (3d) 422 (Que. C.A.). However, the absence of an audio or video recording of the statement makes it difficult to assess the circumstances surrounding the making of the statement and more difficult for the Crown to discharge its heavy onus of proof beyond a reasonable doubt.
[10] The accuracy, completeness and reliability of the record of a statement are important to the inquiry into the circumstances surrounding the making of the statement. There is no absolute requirement to audio and/or video record a statement.
[11] The analysis involves an inquiry into all the circumstances surrounding the making of all statements. Failure to provide a recording of a statement frustrates the ability of the Judge to make an effective inquiry into the circumstances surrounding the making of the statement and increases the likelihood that the statement will be ruled involuntary because the circumstances surrounding the making of the statement cannot be effectively evaluated. Though not required, audio and/or video recording of all statements made to a person in authority remains a best practice: see R. v. Moore-McFarlane (2001), 100 C.C.C. (3d) 493 (Ont. C.A.); R. v. Ahmed (2002), 170 C.C.C. (3d) 27 (Ont. C.A.), R. v. White (2003), 176 C.C.C. (3d) 1 (Ont. C.A.); R. v. Ebanks, 2012 ONSC 3887; R. v. Burke, 2010 ONSC 6530, [2010] O.J. No. 5219.
Position of the Parties
[12] Ms. Morgan submits that she was detained by CBSA and RCMP officials who questioned her during the detention. Ms. Morgan explained that the Crown has failed to prove beyond a reasonable doubt that the statements she made were voluntary because CBSA officers did not accurately or completely record her statements and deprived her of medicine and sleep. Ms. Morgan alleges that she gave the videotaped statement to RCMP Officer Edwards because of Officer Edwards’ promise to return her children’s passports to her and release her from custody if she cooperated and gave a statement.
[13] The Crown submits that it has discharged its burden of proof beyond a reasonable doubt because there is no evidence that Ms. Morgan made any of the statements involuntarily. Although many of the statements were not recorded, Ms. Morgan agreed that the statements as recounted were accurate. Ms. Morgan is statutorily compelled to answer routine questions at the border, therefore, the statements to CBSA Cullen are not subject to proof that they were voluntary; RCMP Officer Edwards did not make any promises or inducements in exchange for the audio taped statement.
Discussion and Analysis
[14] This case is similar to the facts in R. v. Ebanks, 2012 ONSC 3887. In that case Ms. Ebanks was detained by the RCMP at the Toronto Pearson International Airport. Ms. Ebanks was arrested at 7:20 p.m. and detained by Customs Officers until 9:00 a.m. the next day, when RCMP Officers took custody of Ms. Ebanks. Ms. Ebanks excreted 22 pellets of cocaine and removed a package of cocaine from her vagina. The total weight of the cocaine was 406 grams. Ms. Ebanks made a number of statements to CBSA and RCMP Officers during her detention: see Ebanks at paras. 4-12.
[15] Justice Baltman summarized the circumstances surrounding the statements in Ebanks at para. 22 as follows:
- Most of them [the officers] had minimal, if any, independent recollection of their interaction with the defendant; they depended heavily on the notes they made at the time and their subsequent “narrative reports”;
- Neither their notes nor their narratives purport to be a comprehensive account of all the conversation that took place between them and the defendant; while various utterances are allegedly quoted “verbatim”, the majority of their notes simply convey the “gist” of what they thought was important;
- For the most part their testimony consisted of a summary of what they thought was significant in their dealings with the defendant, punctuated by incriminating comments devoid of any real context.
- Significantly, in most cases none of the officers can state what occurred or was said immediately before the impugned utterances, thereby depriving the court of an accurate context in which to assess the remarks: see R. v. Hunter, [2001] O.J. No. 2388 (C.A.), paras. 14 and 19.
[16] Justice Baltman found the record in Ebanks to be inadequate and that the Crown had failed to discharge its high burden of proving the voluntariness of the statements beyond a reasonable doubt and excluded the statements: see Ebanks at para. 26.
[17] During their interactions with Ms. Morgan none of the CBSA or RCMP officers made any attempt to create an accurate record of the statements Ms. Morgan made to them. All the officers conceded that their notes or summaries were not a comprehensive account of any conversation. The exception is the video and audio recorded statement to RCMP Officer Edwards.
Statements to CBSA Officer Cullen
[18] The first category of statements is the statements Ms. Morgan made to CBSA Officer Cullen upon her arrival in Canada.
[19] At 7:00 p.m. Officer Cullen met Ms. Morgan outside the secondary inspections area. He began asking Ms. Morgan routine screening questions. Ms. Morgan was statutorily compelled to answer: see Jones, Sinclair supra. These included questions such as where she was coming from? the reason for her travel? etc. He referred her for secondary examination. CBSA Officer Cullen met Ms. Morgan again at the secondary inspection area at 7:43 p.m. He asked additional routine questions. Ms. Morgan was not detained until CBSA Officer Cullen began asking Ms. Morgan where the drugs were. At this point, when viewed objectively, CBSA Officer Cullen had a strong particularized suspicion that Ms. Morgan should be subject to a more intrusive search and Ms. Morgan was detained: see Jones, Sinclair. At 9:10 a.m. Ms. Morgan was transferred to CBSA Officer Walker and Tetly for this search.
[20] Ms. Morgan testified and recalled some of the questions CBSA Officer Cullen asked but the record of the statements prepared by CBSA Officer Cullen are fundamentally unreliable for these reasons:
- With one exception, none of the questions and answers are accurately recorded by transcribing or otherwise;
- CBSA Officer Cullen did not know whether the information noted on Ms. Morgan came from answers provided by Ms. Morgan or from some other documentation, i.e. where Ms. Morgan was travelling from, reasons for her travel, duration of her travel and the connection between her travel and her children;
- The only statements CBSA Officer Cullen recorded were these: Q. Are these your bags? A. Yes. Q. Did you pack them yourself? A. Yes. Q. Are you aware of the contents of your bags? A. Yes. Q. Are these the same bags you left Canada with? A. Yes.
- CBSA Officer Cullen did not recall the context of his conversation with Ms. Morgan about her disability, employment, mortgage or utility payments, when her ticket to Jamaica was purchased and how many children she had;
- In general CBSA Officer Cullen had little independent recollection of the statements Ms. Morgan made to him; he conceded that he paraphrased certain portions and a lot of the context of the statements was missing.
[21] There are no allegations and there is no evidence that CBSA Officer Cullen engaged in any conduct that calls into question the voluntariness of the statements made to him or the statements made to officers who also took custody of Ms. Morgan.
[22] Ms. Morgan was not detained during her interaction with CBSA Officer Cullen until he began to ask her about the drugs. Statements given prior are not subject to a voluntariness analysis, however, the record is so inaccurate that the prejudicial effect of putting that evidence before the jury outweighs its probative value. Therefore, statements Ms. Morgan made to CBSA Officer Cullen are excluded with the exception of the four questions and answers he recorded during the secondary examination:
Q. Are these your bags? A. Yes. Q. Did you pack them yourself? A. Yes. Are you aware of the contents of your bags? A. Yes. Q. Are these the same bags you left Canada with? A. Yes.
Statements to CBSA Officers Walker and Tetly
[23] By time Ms. Morgan was transferred to CBSA Officers Walker and Tetly, she was detained and her statements to them are subject to the voluntariness analysis.
[24] Neither CBSA Officers Walker or Tetly took any steps to accurately record their conversations with Ms. Morgan;
[25] CBSA Officer Tetly conceded that some of the statements attributed to Ms. Morgan, specifically the statement about Ms. Morgan’s attendance at an event called Summer Fest, was based on her interpretation of what Ms. Morgan said;
[26] CBSA Officer Tetly recounted a lengthy exchange about Ms. Morgan’s financial circumstances. CBSA Officer Tetly conceded that her account was missing some context and detail. Ms. Morgan denies providing this financial detail.
[27] Ms. Morgan was in a special cell, specially equipped to facilitate the collection of any pellets she excreted. Ms. Morgan said she was sleep deprived because the officers kept coming to speak to her every 10 to 18 minutes. Unlike in Ebanks, Ms. Morgan never complained of sleep deprivation to any officer. When Ms. Morgan gave her videotaped statement to RCMP Officer Edwards there was no evidence of sleep deprivation. She was alert and responsive.
[28] Officers Walker and Tetly were aware of the fact that Ms. Morgan was on some medication. The officers disagree with Ms. Morgan’s assertion that she requested medication. I find that Ms. Morgan was not given any medication by Officers Walker and Tetly. Ms. Morgan made no complaints either to Officers Walker and Tetly. While in the custody of RCMP Officer Edwards, I accept that Ms. Morgan never requested medication, but was taken to a hospital for unrelated reasons and given some medication then. The nature of the medication is unknown. Ms. Morgan raised no complaints or concerns during these interactions. I conclude that the issue of medication did not have any impact on Ms. Morgan’s decision to provide the statements.
[29] In R. v. Horvath, [1979] 2 S.C.R. 376, [1979] S.C.J. No. 54 at page 425 the court states:
. . . voluntariness implies an awareness of what is at stake in making a statement to a person in authority. In my opinion in the circumstances this does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his determent.
[30] I am satisfied that Ms. Morgan was aware she was making the statements to persons in authority and that the statements could be used to her detriment. Ms. Morgan had previously been cautioned and received legal advice from three lawyers.
[31] Unlike in Ebanks there is testimony from the accused. Ms. Morgan testified that CBSA Officers Walker and Tetly made no threats, inducements, trickery, etc. to convince her to make her statements to them. Ms. Morgan relies on assertions of deprivation of medication and fatigue which I have rejected. She had the requisite operating mind.
[32] However, the statements as proffered by Officers Walker and Tetly are devoid of context, include only incriminating information and are paraphrased. In the absence of context these statements can be misleading. In some instances a statement represents an officer’s interpretation of what Ms. Morgan said. The record of the statements is so inaccurate such that the prejudicial effect of these statements outweighs any probative value. I will exercise my residual discretion and exclude these statements from consideration by the jury.
Statements to RCMP
[33] RCMP Officer Edwards and Castrillion took custody of Ms. Morgan at 7:34 a.m. on July 13, 2014.
[34] RCMP Officer Edwards had conversations with Ms. Morgan at the RCMP cells equipped to facilitate the retrieval of any pellets Ms. Morgan excreted. Officer Edwards took Ms. Morgan to the hospital for precautionary reasons. Ms. Morgan had refused any medical treatment. Officer Edwards and Ms. Morgan had cordial conversation about a variety of topics such as motherhood, children and the bail process.
[35] At 6:49 a.m. Ms. Morgan gave a statement which was audio/video recorded. This is the only statement from the interaction between Ms. Morgan and Officer Edwards the Crown seeks to introduce.
[36] Ms. Morgan testified that prior to this statement RCMP Officer Edwards promised that she would be released from custody and have her children’s passports and her belongings returned to her if she cooperated with the police. Ms. Morgan said she relied on this promise and provided the videotaped statement.
[37] She explained that Officer Edwards fulfilled the promise by releasing her after the statement and providing her with her belongings which included her children’s passports. Ms. Morgan submits the quid pro quo referred to in Oickle is satisfied and she was induced to provide the statement.
[38] Officer Edwards denies making any offer to Ms. Morgan. She concedes that she told Ms. Morgan they “will talk later”. Although she explained the legal process, i.e. where and how Ms. Morgan will be processed and released, she was very clear to Ms. Morgan that she had no power over whether Ms. Morgan will be released. Officer Edwards said she did not offer Ms. Morgan the return of her children’s passport in exchange for Ms. Morgan’s statement. Officer Edwards did not record any of her pre-video conversations with Ms. Morgan.
[39] The video recorded statement is helpful in resolving the conflicting evidence. A review of the video recording indicates that Ms. Morgan was alert responsive and provided information freely. Ms. Morgan made no complaints about fatigue, lack of food, lack of medication or anything at all.
[40] At the outset Ms. Morgan confirmed that she had received her cautions and had spoken to counsel on three occasions. Ms. Morgan confirmed that she understood her cautions and rights as explained to her by counsel. Ms. Morgan confirmed that she had declined to speak to counsel on a fourth occasion because the advice she would be the same advice she received on the previous three occasions.
[41] Over the course of the interview Ms. Morgan provided information on the circumstances surrounding the offence. Ms. Morgan’s (“PM”) account of the circumstances surrounding the offence ends with this exchange with RCMP Officer Edwards (“KE”):
KE: okay so you don’t know any of their names [co-offenders], or any of their information? PM: No KE: Okay . . . . okay give me a minute, I’m gonna pop out and just see if there’s uhm anything else that ah I need to cover. PM: Okay KE: Do . . . do you ah want a bit of water while you are waiting? PM: No thanks KE: You’re okay for now? PM: Yeah.
[42] RCMP Constable Edwards left Ms. Morgan in the interview room and when she returned they had this conversation:
KE: Okay give me a minute … Alright I have everything that I’m going to cover for now. Uhm I did find the girl’s passports in your belongings. PM: Okay. KE: Uhm that just concerned me because their immigration cards are still in here. PM: Yeah because uhm we’re suppose . . . I I brought them up to bring them back. ‘Cause the school want like I want to photo copy everything that I need to give to the school . . . KE: Mhmm. PM: … from here and then just bring back everything. Like the original passport so they could see … KE: Mhmm. PM: … that this is from the original. KE: Okay. Alright so uhm we we have your passport … PM: Yeah. KE: As well as your Jamaican Passport. These we did uhm copy them but we’re not going to take them because there the girls. PM: Hm. KE: And they’re at some … they need them. PM: Okay. KE: So what I’m going to do is I’m going to release them into your … no here I’m going to give you the choice on on how you want this handled. Do you want me to add these into your purse? Your purse is going to go with you wherever you go? Or I can put them back into your suitcases… PM: in the suitcase please. KE: … and then… somebody’s going to have, pick up the suitcases on your behalf if not you, once you’re released. PM: Could my purse go in my suitcase too? KE: It can if you choose. Our usual uhm way of doing things is to send your purse with you to jail. Off you go and it ss… it stays in their custody and once you’re released they hand it to you. PM: No Just keep my purse and my suitcase safe please. KE: Okay so but what that means though, is that when you’re released you won’t have your ID, you won’t have any of your money, well there’s not much money in there anyway. PM: Mhmm. KE: Uhm you won’t have any, any of that stuff, you won’t have any ID. PM: Couldn’t I come and pick it up right away? KE: Sure you could but depends on what time you’re released, and if it’s … there are a number of other issues about it but… PM: You think I’ll be able to get my passport so I could go get my girls? KE: I can’t answer that. I honestly can’t that is absolutely not up to me that’s the courts. Once you leave our custody my job… PM: Mhmm. KE: … and ah all of our jobs is done, and then it goes into the court system. Uhm you could certainly talk to your lawyer and see what what can happen from there, that’s the best I can offer. PM: Okay. KE: Okay. So I’m going to put these into your luggage. PM: Okay. KE: Which will be kept in safe keeping at our detachment until you’re released and then you can come and get it. What do you want to do with your purse? PM: I’ll put it in there too. KE: Okay. PM: Uhm (mouth noise) what other infor… what other documents do you take out of my uhm…
[43] Ms. Morgan testified that she and Officer had an understanding that she was to receive the passport in exchange for a statement. It is reasonable to expect if this happened in conversations prior to the video tape there would be no need for Ms. Morgan to explain why the passports were so important.
[44] It is apparent from the sequence that Officer Edwards had no idea why the passports were important. Ms. Morgan gives her a full explanation with no reference to a prior conversation about the subject. This leads me to conclude that Ms. Morgan and Officer Edwards did not discuss the passports prior to the commencement of the video interview and there was no prior quid pro quo arrangement i.e. statement for passport. Within this context the fact that Ms. Morgan was released and received the passports does not change the conclusions I reached upon a complete review of the audio statement.
[45] At the beginning of the statement Officer Edwards referred to conversations prior to the videotaped statement about Ms. Morgan’s release from custody. The recording shows Ms. Morgan inquiring about whether she can get her children’s passport when she is released. Officer Edwards responds that the issue of release was up to the courts and not up to her. Officer Edwards’ statement contradicts Ms. Morgan’s testimony that there was a prior agreement that she would be released if she provided a statement. The recording shows that Ms. Morgan did not express surprise at Officer Edwards’ statement that release was not up to her. This contradicts Ms. Morgan’s testimony that she was shocked by the officer’s response. She did not ask any further questions she did not refer to a previous agreement.
[46] In cross-examination Officer Edwards said it was possible that Ms. Morgan may have mistaken the following exchange to indicate that she was going to be released directly from the RCMP detachment at the airport.
KE: Just so you know . . . Okay so what I was hoping that we could ah talk about was uhm a little bit about the situation and how you find yourself here. Uhm but first ah I wanted to go over a few things with you about your luggage. I went through it ah, we had to inventory because you are going to get it back. PM: Okay. KE: Uhm when you’re, when you’re released and you, and you should be released at some point. PM: Okay. KE: Uhm when this ah process comes along so once you’re released from our our custody then at some point you’ll go in front of the judge or the JP and at some point you’ll be released, we discussed that earlier right. PM: Yeah. KE: (Clears throat) And at that point you’ll get your luggage back. So I noticed in there though that there were a number of uhm smaller things, and I assumed they’re your daughters, are they not? PM: Those clothes? KE: Yeah. PM: Yeah those are my daughter’s clothes I was bringing them to do the laundry to go back on Friday. KE: Okay I figured as much. PM: Yeah. KE: You know when I saw the little clothes and then compared to your big clothes. Okay so that confirms that then. Ah sorry we’re gonna do the laundry here?
[47] The exchange between Ms. Morgan and Officer Edwards at the end of the interview conclusively reveals that there was no prior agreement for the quid pro quo of release for the statement. I reach the same conclusion upon considering the totality of the statement and the circumstances.
[48] In the result, the Crown has proved beyond a reasonable doubt that Ms. Morgan’s videotaped statement to Officer Edwards is voluntary. This statement is admissible and the videotape statement of Officer Edwards is admissible.
Barnes, J.