Court File and Parties

COURT FILE NO.: CR-17-10000372-0000 DATE: 20170717 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Applicant Kelly Beale, for the Crown

• and -

DERRICK GOULDING and SHAWN CLYKE Respondents Brian Kolman, for Derrick Goulding Uma Kancharla, for Shawn Clyke

HEARD: June 12, 2017

Thorburn J.

RULING

THE ISSUE

[1] The accused, Derrick Goulding, is charged with sexual assault and other offences. His co-accused is Shawn Clyke.

[2] The Crown seeks to adduce several utterances made by Mr. Goulding after his arrest on the basis that they were made voluntarily. Some of those utterances pertain to Mr. Clyke and his alleged involvement in these offences.

[3] Derrick Goulding claims the statements were not voluntary and are thus inadmissible. He further claims that the prejudicial effect outweighs the probative value of including the utterances. The accused, Shawn Clyke, agrees with the position taken by Mr. Goulding that the prejudicial effect outweighs the probative value in respect of the two utterances that refer to a second person present with Mr. Goulding.

THE LAW

[4] The Crown must establish beyond a reasonable doubt that a statement is voluntary. The factors to be considered to determine whether a statement was made voluntarily are set out in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. A statement can be found to be involuntary if it is obtained as a result of threats, promises, inducements, oppression, or if the statement is taken when the person does not have an operating mind.

[5] The Court of Appeal in R. v. D.M., 2012 ONCA 894, [2012] O.J. No. 6059, at paras. 39-48, held that some of the factors to be considered in determining whether an accused had an operating mind at the time he gave a statement are whether:

a) the person is aware of their right to silence, was cautioned about the effect of giving an answer and knew this was a police investigation; b) the line of questioning was misleading or whether the person was confronted directly regarding the allegations; c) the person seemed generally aware of the potential legal consequences of his actions; d) he had consulted a lawyer before giving the statement; e) he refused to answer certain questions; and f) there was a confession.

[6] A court must consider all the circumstances in which the accused spoke to determine whether a statement given to a police officer was made voluntarily (Oickle at para 68).

[7] The right to silence includes the right of a detained person to make a meaningful choice as to whether or not to speak to state authorities. (R. v. Singh, 2007 SCC 48, [2007] 3 SCR 405 at para. 35 and R. v. Oickle, supra at paras. 24-26). The reason for this rule is that an accused should be permitted not to incriminate himself unless he wants to.

[8] The statement must be made in circumstances free from oppression or inducements, and the person must have an “operating mind”. (R. v. Hamadeh, 2011 ONSC 1241, [2011] O.J. No. 819 at para. 32 and R. v. Hebert, 1990 SCC 118, [1990] S.C.J. No. 64 (S.C.C.) at p. 166). An individual has an operating mind as long as he knows what he is saying, that he is communicating with police officers, and what is at stake if he chooses to speak to police. (Oickle supra at para 63 citing R. v. Whittle, 1994 SCC 55, [1994] 2 S.C.R. 914 at p. 936).

[9] The Courts have held that a statement may be involuntary even if there is no actual violence or direct threat of violence but where the person is in a state of shock or emotional disintegration. (Ward v. Her Majesty The Queen, 1979 SCC 14, [1979] 2 SCR 30 and Horvath v. The Queen, 1979 SCC 16, [1979] 2 S.C.R. 376).

[10] The absence of a warning is an important factor but may not be determinative of the admissibility of a statement made by an accused to a person in authority. (R. v. Singh at para. 31 and Boudreau v. The King, 1949 SCC 26, [1949] S.C.R. 262, 94 C.C.C. 1, [1949] 3 D.L.R. 81 at p. 267).

[11] The warning is more important after a person has been detained or an arrest is made because at that point, the person cannot choose to leave and is therefore more vulnerable and may feel compelled to give a statement. In R. v. Singh at para. 32 Charron J. adopted the following passage from Rene Marin Admissibility of Statements (9th Ed. At p. 2-24.2 to 24-3).

[12] It is also important to consider whether the person has consulted with legal counsel. If the person has consulted with legal counsel, the person may be informed of his right to remain silent and the significance of the caution by police is thereby diminished. Where the suspect has not consulted with counsel, the police caution becomes all the more important as a factor in answering the ultimate question of voluntariness. (R. v. Singh at para 33).

ANALYSIS AND CONCLUSION

[13] The statements in issue are as follows:

a. To PC Clarke: “Is this the thing with Sid?...The sex assault. Is this the thing that happened with Sid?” This was said shortly after his arrest. b. To PC Fernandes: “Shawn did it…Sid loves me.” c. To PC Murphy, PC Fernandes and PC Clarke: “Sid” This was said as he was placed in the police car to be taken to the police station after this arrest. d. To Det Maisonneuve: “It was Shawn…He’s a black guy, 5 foot 8 inches. Stays around Yonge and Wellesley. I was there with him.” This was said after telling the officer that it was someone else and providing a description of the other person.

[14] The following circumstances lead me to believe that Mr. Goulding was aware of his right to silence and the implications of responding to the officer’s questions and that the statements were voluntary:

a. At the time of arrest, Mr. Goulding was advised that he had the right to remain silent and that if he did say anything, what he said could be used against him in a court of law. He was also advised of his right to consult a lawyer. As such, Mr. Goulding was aware of his right to silence, cautioned about the effect of giving an answer, knew this was a police investigation and arrest and knew the charges he was facing; b. The first two utterances, “Is this the thing with Sid?...The sex assault, is this the thing that happened with Sid?” and “Sid loves me” were made just after Mr. Goulding’s arrest and after he was read his rights to counsel twice (once at the time of his arrest for these offences and a second time, when police discovered marijuana on his person); c. Within the same half hour, after he had been read his rights, Mr. Goulding said to Officer Fernandes, “Shawn did it… Syd loves me”; d. All of these utterances were spontaneous. Police asked no questions to elicit these remarks. On the contrary, Officer Clarke testified that he did not know who Sid was and assumed that Sid was a male and that therefore Mr. Goulding must have been referring to a co-accused. The officers testified that these utterances came “out of the blue”; e. There is no suggestion that there was any deliberate attempt to engage Mr. Goulding in conversation before he made those utterances; f. While the officers did not suggest that this was a complete list of every word said by Mr. Goulding while they were waiting for the transport vehicle to arrive, Officer Fernandes said that to the best of his recollection, Mr. Goulding did not say anything else and there was nothing else in his notes; g. The officers made notes of the utterances shortly after the events. The officers did not recall Mr. Goulding making any other utterances; and h. It is conceded that there were no threats promises or inducements made to Mr. Goulding before he made any of the utterances. He was not oppressed.

[15] This is not a situation such as that in R v. Smith [2017] O.J. 2552 where a pre-interview was conducted by police with an accused and recording equipment was available but police chose not to use it. Nor is it a situation such as that in R. v. Charlouis [2017] O.J. 2326 whereby the police failed to take proper notes of the utterances made by the accused.

[16] For the above reasons, I am satisfied beyond a reasonable doubt that when making the utterances, Mr. Goulding was aware of what was at stake in making a statement to a person in authority. I therefore conclude that Mr. Goulding knew that what he was saying to police officers could be used to his detriment.

[17] However, even if the utterances are voluntary, I must also be satisfied that the probative value of the utterances outweighs its prejudicial effect.

[18] The utterances that refer to Mr. Clyke are hearsay evidence from Mr. Goulding that implicate Mr. Clyke in these offences. It is agreed that the jury may not use these statements in the case against Mr. Clyke. The only significance of these utterances is in support of the case against Mr. Goulding.

[19] The words “Shawn did it” and the remarks “It was Shawn…He’s a black guy, 5 feet 8 inches…Stays around Yonge and Wellesley” do not serve any probative value in the case against Mr. Goulding. As such they should be excised from the utterances to be adduced in the case against Mr. Goulding.

[20] I therefore find that Mr. Goulding had an operating mind and that the statements he made were voluntary. However, the probative value of the utterances that pertain to Shawn Clyke do not outweigh their prejudicial effect even with an instruction to the jury and those comments should therefore be excised. (R. v. Figliola (2011) 2011 ONCA 457, 105 O.R. (3d) 641 (COA)).

[21] For these reasons, the utterances that may be adduced by the Crown are as follows:

a. To PC Clarke: “Is this the thing with Sid?...The sex assault, is this the thing that happened with Sid?” This was said shortly after his arrest. b. To PC Fernandes: “Sid loves me.” c. To PC Murphy, PC Fernandes and PC Clarke: “Sid” This was said as he was placed in the police car to be taken to the police station after this arrest. d. To Det Maisonneuve: “I was there.”

Thorburn J. Released: July 17, 2017