CITATION: R. v. Merritt, 2017 ONSC 5758
COURT FILE NO.: CRIMJ(P) 1459/16
DATE: 20170927
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Brian McGuire and Eric Taylor, for the Crown
Respondent
- and -
MELISSA MERRITT and CHRISTOPHER FATTORE
David Berg and Joel Hechter, for Melissa Merritt Jennifer Myers and Daisy McCabe-Lokos, for Christopher Fattore
Applicants
HEARD: September 18, 2017 at Brampton
RULING No. 15: Application to Reconsider the Voluntariness of Christopher Fattore’s Post-Arrest Statement
RESTRICTION ON PUBLICATION Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
F. DAWSON J.
[1] Christopher Fattore applies to have me reopen and reconsider my ruling that his post-arrest statement to the police has been proven voluntary beyond a reasonable doubt. The application is based on the fact that subsequent to my ruling on voluntariness I excluded certain evidence that had been put to the applicant during the course of his post-arrest interview. At the conclusion of submissions I dismissed the application with reasons to follow. These are those reasons.
Background
[2] During a lengthy post-arrest interview on January 28 and 29, 2014 Mr. Fattore confessed to the murders of Caleb Harrison and Bridget Harrison. In Ruling No. 10 (R. v. Merritt, 2017 ONSC 2449) I concluded that the statement had been proven voluntary beyond a reasonable doubt. Subsequently, in Ruling No. 12: Omnibus s. 24(2) Application (R. v. Merritt, 2017 ONSC 5245) I held that a series of incriminating internet search queries found on a laptop computer used by both Merritt and Fattore must be excluded from evidence due to violations of s. 8 of the Charter and associated police misconduct.
[3] As explained in detail in Ruling No. 10, Det. Phil King of the Peel Regional Police used an evidence based approach during his post-arrest interview of Mr. Fattore. Over an extended period of time he placed the evidence the police had gathered before Mr. Fattore. That evidence included DNA evidence found under Caleb Harrison’s fingernails, DNA evidence found on latex gloves recovered from the applicant’s garbage, evidence of new running shoes discarded in the same garbage, numerous intercepted private communications of Melissa Merritt and Christopher Fattore and the internet search queries of particular interest on this application.
[4] I found in Ruling No. 10 that Mr. Fattore was most interested in hearing about the evidence the police had. After arguing about the evidence with Det. King for many hours Mr. Fattore said that he had thought about all the evidence that had been shown to him. He said it appeared to him that the police had a much stronger case against him in relation to Caleb Harrison than they did in relation to Bridget Harrison. Det. King readily agreed with that. The internet search queries were of particular significance in relation to the case of Bridget Harrison. Mr. Fattore then confessed to both murders in the manner detailed in Ruling No. 10.
[5] Of considerable significance to the current application is that the internet search queries had been located pursuant to the execution of a search warrant. While I later found that the warrant was facially invalid, that determination was not reached until well after Det. King interviewed the applicant. At the time of the applicant’s interview the warrant was presumptively valid. This is not a situation where the police were knowingly putting inadmissible evidence to the applicant during the interview in an effort to convince him to speak to them. I also point out that during the interview Mr. Fattore repeatedly asked Det. King to tell him all about the evidence the police had gathered.
The Positions of the Parties
[6] The applicant submits that the subsequent exclusion of the internet search queries constitutes a material change in circumstances giving rise to the need to reconsider my ruling on voluntariness. Relying on R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 61, the applicant submits that the use of inadmissible evidence in the confrontation of a suspect is relevant in determining whether there was oppression during the interview; a material issue in relation to proof of voluntariness. Counsel submits that as it is apparent from the video recording of the applicant’s interview that he took the excluded evidence into account in deciding to confess, the issue of proof of voluntariness must now be reconsidered. The applicant submits this is particularly so because there were inducements made by the police which I found did not overbear the applicant’s ability to choose whether to speak to the police.
[7] In terms of reversal of my voluntariness decision, the applicant points to my prior finding that it would be “disingenuous” to conclude that nothing the interviewing officer said about the applicant “doing the right thing for his family” was implicated in his decision to confess and to my conclusion that the applicant decided to confess due to the strong nature of the case against him. The applicant submits that “particularly since the police presented him with inadmissible evidence his motive for confession was not completely self-generated”.
[8] The applicant further submits that the strength of the case against him in relation to the murder of Bridget Harrison was founded primarily on the internet search queries. This submission is combined with a submission that, in the absence of that recently excluded evidence, the remaining evidence would not be strong enough to induce the applicant to confess to the murder of Bridget Harrison.
[9] Ultimately, counsel for the applicant submits that I should have a reasonable doubt about the voluntariness of Mr. Fattore’s entire confession. Alternatively, counsel submits I should exclude that portion of the applicant’s statement that amounts to a confession to the murder of Bridget Harrison. This submission is advanced purely on a voluntariness basis.
Analysis
[10] I am not able to accept the applicant’s submission. For reasons which I will explain, in the circumstances here I do not see the exclusion of the internet search queries from the evidence which may be adduced before the jury on the trial proper as a material change in circumstances in relation to the question of whether Mr. Fattore’s statement has been proven voluntary. Quite apart from that, however, I can say categorically that the fact that some of the evidence that was put to the applicant in the interview was subsequently found to be inadmissible does not change my ultimate conclusion on the voluntariness issue. I will explain each of these findings in turn.
Material Change in Circumstances
[11] I agree with the applicant’s submission that a prior ruling may be reconsidered where things change during the course of a trial and that the test is whether there has been a material change in circumstances: R. v. La (appeal by Vu), 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, [1997] S.C.J. No. 30, at para. 28; R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707, at para. 29; R. v. Calder, 1996 CanLII 232 (SCC), [1996] 1 S.C.R. 660.
[12] In R. v. Pan, 2014 ONSC 5753, at para. 27, Boswell J. noted that in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, Sopinka J. “described a material change in circumstances as ‘a change, such that, if known at the time, would likely have resulted in different terms.’” In Willick the court was dealing with the prerequisites for variation of an order in a family law case.
[13] In Adams, at para. 30, Sopinka J. said: “As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of the order in the first place.”
[14] The applicant submits that the change that occurred here relates to a matter that justified the making of the order in the first place because it relates to whether there was oppression – a key element in relation to a finding of voluntariness. It is here where the applicant points to para. 61 of Oickle for support.
[15] At para. 61 of Oickle, Iacobucci J. said the following, under the sub-heading of “Oppression”:
A final possible source of oppressive conditions is the police use of non-existent evidence. As the discussion of false confessions, supra, revealed, this ploy is very dangerous: see Ofshe & Leo (1997a), supra, at pp. 1040-41; Ofshe & Leo (1997), supra, at p. 202. The use of false evidence is often crucial in convincing the suspect that protestations of innocence, even if true, are futile. I do not mean to suggest in any way that, standing alone, confronting the suspect with inadmissible or even fabricated evidence is necessarily grounds for excluding a statement. However, when combined with other factors, it is certainly a relevant consideration in determining on a voir dire whether a confession was voluntary.
The applicant seizes upon the one use of the word “inadmissible” in this paragraph as the foundation for his argument.
[16] It is immediately apparent that the main thrust of the quoted paragraph is to state that the fabrication of evidence, while not determinative of voluntariness, is relevant to the issue of oppression. The primary concern is, as said in the opening sentence of the paragraph, “the police use of non-existent evidence”. In the context of the thrust of this paragraph, the facts of the Oickle case itself, and having regard to what was said elsewhere in the judgment, the one use of the word “inadmissible” in para. 61 can only be a reference to evidence put to an interviewee which the police know is inadmissible at the time of the interview. Only such circumstances would draw the use of inadmissible evidence close to the use of “non-existent” or “fabricated” evidence.
[17] As Crown counsel point out in their factum, at para. 32 of Oickle Iacobucci J. held that one of the reasons for the broadly defined nature of the voluntariness rule is the concern that involuntary confessions are more likely to be unreliable and that the rule should, therefore, recognize which interrogation techniques lead to false confessions. Crown counsel also refer to paras. 40 and 43 of Oickle, where Iacobucci J. deals with “non-coerced-persuaded” confessions and refers to the use of fabricated or non-existent evidence as a factor in persuading innocent suspects of their own guilt. Crown counsel submit that at para. 61 Iacobucci J. had returned to these same concerns. I agree with these submissions.
[18] The word “inadmissible” is not used in the earlier discussion in Oickle. It seems to me that it was likely used in para. 61 due to the facts of the Oickle case, where a polygraph test was administered to Mr. Oickle in the course of obtaining his statement. The results of polygraph tests are, of course, inadmissible in evidence because they are unreliable: R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398.
[19] In Oickle the court was asked to deal with how the use of the polygraph during the course of a police interview of a suspect “fit into the analytical framework” of the voluntariness assessment: para. 88. Iacobucci J. said that failing to tell a suspect that polygraph results are inadmissible would not automatically result in an involuntary confession: para.91. However, in the same paragraph he spoke of such a failure as a form of deception which was a factor to be considered in the voluntariness analysis. He used the word “inadmissible” again in the context of police deception of the suspect: “[T]he approach is similar to the one used with fabricated evidence, supra – though of course the use of inadmissible evidence is inherently less problematic than fabricated evidence.”
[20] Taken together, the passages I have referred to demonstrate that the references to “inadmissible” evidence being used during a police interview were in the context of police deception as a circumstance relevant to whether the interview was so oppressive as to raise a reasonable doubt about the voluntariness of a resulting statement. Oppression was described, at para. 58, as conditions created by the police which were distasteful enough to have the potential to induce an involuntary confession. Clearly the focus in relation to oppression is on the conduct of the police.
[21] I also observe that in concluding that Mr. Oickle’s statement was voluntary Iacobucci J. noted, at para. 92, that the police did explain to Mr. Oickle that the polygrapher’s opinion as to his veracity based on the polygraph test results was inadmissible. The absence of police deception was thus a factor which favoured admissibility.
[22] Pulling these strands together, I conclude that para. 61 of Oickle is not authority which supports the conclusion that where the police put existing evidence to a suspect in good faith during the course of an interview and that evidence is subsequently ruled inadmissible, there has necessarily been a material change in circumstances requiring a reconsideration of an earlier voluntariness ruling. I have not been provided with any other authority in support of that critical aspect of the applicant’s submission.
[23] In the particular circumstances of this case, having regard to the passages from Oickle which I have referred to and to the specific submissions made by the applicant, I conclude there has not been a material change in circumstances. The evidence placed before the applicant during his interview existed. It was found on a computer he used. It had been found pursuant to a presumptively valid warrant. Det. King was acting in good faith when he placed it before the applicant during the interview. No deception was involved. No trickery was involved. The police were acting in a proper manner which could have had no impact on whether oppressive circumstances were created by them at the time of the interview. The subsequent ruling that the internet search queries were inadmissible could not impact that.
[24] It must also be remembered that while a full contextual analysis of all of the circumstances is required, the focus of the voluntariness inquiry is an objective assessment of the conduct of the police in relation to the accused and its effect on the accused’s ability to exercise his or her free will: R. v. Singh, 2007 SCC 48, 2010 7 SCC 48, [2007] 3 S.C.R. 405, at paras. 28, 36; R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, at paras. 70, 72. The applicant’s submissions take a fundamentally subjective approach which is out of step with this aspect of the confessions rule.
[25] The police are entitled to persuade an accused person to speak to them. Putting existing and presumptively admissible evidence to the suspect in good faith, as occurred here, falls squarely within the sphere of appropriate police conduct. Such activity is unlikely to induce a false confession and it does not taint the proper administration of justice.
[26] For these reasons I conclude that there has not been a material change in circumstances.
The Voluntariness of the Statement
[27] I provided very extensive reasons for why I found that I was satisfied beyond a reasonable doubt that the applicant’s post-arrest statement was voluntary. I spent many days analysing the statement and all of the surrounding circumstances. While the evidential portion of the statement voir dire took place before I found that the warrant which led to the internet search queries was invalid, most of my analysis and all of the writing of my reasons in relation to proof of voluntariness of the applicant’s post-arrest statement took place after that s. 8 violation had been established and after some other s. 8 violations had been established as well.
[28] It was decided early on in the pre-trial applications that s. 24(2) would be considered after the various s. 8 challenges had been mounted. Consequently, I was aware that the relevant s. 8 violations existed, although I had no idea what the outcome of the s. 24(2) application would be. As is apparent from my s. 24(2) ruling (Ruling 12), the exclusion of the evidence rests in part on police misconduct associated with the s. 8 breaches. Some of that misconduct was unknown until additional disclosure of police email occurred during the course of the s. 24(2) application.
[29] That said, counsel for the applicant was aware from the outset that they would apply to exclude the evidence I later excluded. The arguments advanced on the original statement voir dire did not reflect that.
[30] While I cannot say that I previously took into account the potential for the internet search query evidence to be excluded, I was certainly aware of that possibility when I conducted my full contextual analysis of all of the circumstances.
[31] At this point I can only say that had I known that the internet search queries would be ruled inadmissible it would not have changed my analysis and it does not change it now. In my previous reasons I endeavoured to understand what led to Mr. Fattore’s confession. As outlined in my prior reasons, the strength of the case against him played a major role.
[32] I observe, however, that the internet search queries formed only a part of the evidence the police showed him. It is true that that evidence was significant to the strength of the case against Mr. Fattore in relation to Bridget Harrison’s death. However, it was not the only evidence in that regard. For example, Det. King referred to similar fact evidence and pointed to similarities between the way Bridget Harrison and Caleb Harrison were killed, including to circumstances which suggested the scenes were staged to make it appear in both cases that what had occurred was not a homicide.
[33] I also point out that before he confessed Mr. Fattore indicated that he was well aware that the police did not have nearly as strong a case against him in relation to Bridget Harrison as they did in relation to Caleb Harrison. Det. King told the applicant prior to the confession that he agreed with that assessment. Nonetheless, Mr. Fattore chose to confess to both murders.
[34] Mr. Fattore did not testify on the voluntariness voir dire and he did not seek to testify or call evidence on the application to reconsider. I do not have any evidence from him to assist me in my assessment.
[35] All I can say at this point is that I remain satisfied beyond a reasonable doubt that Mr. Fattore’s will was not overborne by anything improper, as defined or described in Oickle and the other authorities I referred to in my original ruling, which emanated from the police. Even if I were to take the internet search queries out of the narrative of the statement voir dire entirely I would reach the same conclusion and for substantially the same reasons. I have no reasonable doubt about the voluntariness of Mr. Fattore’s statement.
[36] The statement remains admissible.
F. Dawson J.
Released: September 27, 2017
CITATION: R. v. Merritt, 2017 ONSC 5758
COURT FILE NO.: CRIMJ(P) 1459/16
DATE: 20170927
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MELISSA MERRITT and CHRISTOPHER FATTORE
Applicants
RULING No. 15: Application to Reconsider the Voluntariness of Christopher Fattore’s Post-Arrest Statement
F. Dawson J.
Released: September 27, 2017