CITATION : R. v. Brazeau, 2017ONSC 6982
COURT FILE NO.: 15 R-2032
DATE: 2017/11/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen
AND
Tyler Brazeau
BEFORE: Mr. Justice Pierre E. Roger
COUNSEL: Anya Kortenaar, Counsel for the Crown
Maya Shukairy for N. Calvinho, Counsel for the Accused
HEARD: November 1, 2, 3, and 16, 2017
REASONS FOR DECISION
ROGER, P.E., J.
[1] This pretrial motion concerns the admissibility of the accused’s statements to the police: whether his statements to the police were voluntary and whether the accused’s Charter rights were violated.
Introduction
[2] The accused is charged with aggravated assault, robbery, and break and enter in relation to events that occurred in Ottawa on July 1, 2015. The victim was found injured and unconscious, and drugs had been stolen from his apartment.
[3] In the course of their investigation, the police matched fingerprints found at the scene to those of the accused. Following up on this evidence, a police officer went to the accused’s home on July 7, 2015, and scheduled an appointment for the next day at the Ottawa Police station. On July 8, as scheduled, the accused met with the police officer and gave a statement that he did not know the victim and that he had never been to the victim’s apartment.
[4] Thereafter, a production order on the accused’s cellphone revealed that the accused had apparently been in contact with a number of suspects. On August 19, 2015, the police arrested the accused who was again interviewed by the same police officer. Early on during this interview, the accused said that he did not know the victim and that he had never been to the victim’s apartment; thereafter, the accused maintained his right to silence.
[5] The accused argues that his statements to the police on July 8, 2015, were not voluntary and, further, that his rights under sections 7, 10(a), and 10(b) of the Charter were violated.
[6] On the issue of voluntariness, the accused claims that his statements made on July 8, 2015, were not voluntary because they resulted from unacceptable police tactics or trickery. He argues they should be excluded, as he was not aware of his jeopardy. He alleges that:
• the police officer lied about the accused’s real status in the investigation, thereby gaining the accused’s trust (that the accused was really a suspect and not simply a person of interest);
• the police officer failed to caution him that whatever he said in this interview could be used as evidence; and
• the police officer failed to disclose that the accused’s fingerprints had been found at the scene (that the accused should have been told about the existence of the fingerprint evidence).
[7] The accused also argues that his rights under sections 7, 10(a), and 10(b) of the Charter were violated. In support of his argument that he was detained during the first interview, the accused points to the fact that the police officer: made reference to some of his Charter rights; partially cautioned him by telling him that he had no obligation to talk; and stressed that he could speak to a lawyer. The accused argues that a reasonable person in his position would have taken these words from the police officer to mean that he was in fact detained. The accused then argues that his Charter rights were breached when the police officer failed to tell him that anything he said could be used in evidence.
[8] The accused does not allege any Charter breaches concerning the second statement of August 19, 2015; rather he argues that the second statement is tainted by the first statement and therefore also inadmissible.
Issues
[9] This motion raises the following issues:
(a) Whether the statements made by the accused during the July 8, 2015 interview were voluntary.
(b) Whether the accused was detained during the interview of July 8, 2015.
(c) If the accused was detained during the interview of July 8, 2015, whether his rights under sections 7, 10(a) and 10(b) of the Charter were breached and, if so, whether the statement should be excluded pursuant to section 24(2) of the Charter.
(d) Whether the statements made by the accused on August 19, 2015, are tainted by his first statements and therefore also inadmissible.
Were the statements made by the accused during the July 8, 2015, interview voluntary?
[10] Any statement made by a person to the police will not be admissible in evidence unless it is proven by the Crown, beyond a reasonable doubt, to be voluntary (see R. v. Spencer, 2007 SCC 11).
[11] The test for voluntariness is established in R .v. Oickle: whether an accused person’s will in choosing whether or not to speak to the police is overborne by improper police promises or threats, oppressive circumstances, or whether the police employed such trickery that would shock the conscience of the community (R. v. Oickle, 2000 SCC 38, at paras. 57-66).
[12] This rule addresses concerns about the reliability of confessions and the dangers of false confessions; it protects an accused’s rights without unduly limiting society’s need to investigate and solve crime (R. v. Oickle, at para. 33).
[13] The application of the confession rule requires a contextual approach that considers all relevant factors to assess whether the statement was made (1) without threats or promises by a person in authority, (2) in an atmosphere free of oppression, (3) by an accused with an operating mind, and (4) without impermissible police trickery that would shock the community (R. v. Oickle, at paras. 47-67; R. v. Singh, 2007 SCC 48, at para. 35). In making that decision, a court should consider the circumstances of the confession or statement, taking into account all relevant factors outlined above, and ask if it is left with a reasonable doubt as to voluntariness.
[14] Having considered all of the circumstances relating to the interview and statements made by the accused on July 8, 2015, I find that the Crown has proven beyond a reasonable doubt that the statements made by the accused were voluntary. My analysis follows.
[15] It is not disputed that the statements were made to a person in a position of authority and that the confession rule is applicable.
[16] The arguments raised by the accused relate to operating mind and police trickery. Indeed, I did not find any evidence of threats, promises, or of oppression in any of the circumstances of the first statement.
[17] The evidence indicates that the victim was a drug dealer who kept his drugs in a glass jar located in his apartment. During the afternoon of July 1, 2015, the police were informed that the victim was being transported to the hospital with severe injuries. The police therefore attended at the victim’s apartment and started their investigation. Witnesses told the police that they had observed three males. The police were also informed that there had been an outdoor party or some type of gathering outside of the victim’s residence the night before the assault. On July 4, 2015, the Ottawa Police was informed by forensic testing that the accused fingerprints had been found on the victim’s drugs glass jar.
[18] As a result, the Ottawa Police indicated that it assumed that the accused was a person of interest, not a suspect, because it did not know how his fingerprints happened to be on the glass jar. The Ottawa Police stated that it did not yet have reasonable and probable grounds. A police officer was asked to interview the accused to better understand his possible role. Two plain clothes police officers attended at the residence of the accused on July 7, 2015. The police officer introduced himself, explained that he was investigating the serious assault that occurred on July 1, that the name of the accused came out in the course of their investigation, and that they wanted to talk to the accused. The accused was not available to accompany or to immediately attend at the Ottawa Police station and an appointment was made for the next day at 3:00 p.m. at the Ottawa Police station.
[19] At about noon on July 8, 2015, the accused called the police officer asking if he could come in earlier for the interview; however, the police officer could not and the interview remained scheduled at 3:00 p.m. The accused attended at the Ottawa Police station and met with the police officer.
[20] The accused attended willingly at the police station, at the request of the police, to give a statement. He was not searched prior to this interview. For reasons outlined below, although I do conclude that the accused was a suspect, he was not detained and was free to leave at any time (as he did at the conclusion of the interview). At the outset of the interview the accused was told that:
• the interview was being recorded by cameras (on July 7, the accused was also told by the officer that the officer did not want to meet at the accused’s home but at the police station because the officer wanted their meeting recorded on cameras);
• the victim was seriously injured and that the person eventually accused of this crime could be accused of attempted murder or aggravated assault (he was told this the day before as well);
• he was a person of interest because his name came out during the investigation (he was told this the day before as well);
• he, like other persons of interest, was connected somehow and that the police wanted this connection clarified through this interview;
• a person of interest could eventually turn out to be the responsible person and that the responsible person could be accused of attempted murder or aggravated assault;
• he had the right to speak to a lawyer and that he could call one for free; and
• he did not have to attend, did not have to talk, and that he was there of his own choosing (“de ta propre guise”).
(pp. 11-15 of the transcript)
[21] Early on during the interview (see p. 7) and later towards the end (see p. 49), the accused wanted to know why he was being interviewed. He was only told that he was a person of interest because his name came out during the investigation; the police did not want to share their evidence, the fingerprints. As indicated above, the accused was nonetheless told that he, like other persons of interest, was connected somehow, that the police wanted this connection clarified, and that a person of interest could eventually turn out to be the responsible person and charged accordingly.
[22] The police officer was polite and pleasant during the entire July 8 interview. He made no promises, threats, or other inducements, and the video-recording demonstrates that the accused had an operating mind.
[23] The accused knew what he was saying and knew that he was saying it to the police for purposes of their investigation. As explained below, the fact that the accused was not told (i) about the presence of his fingerprints on the victim’s drug jar, or (ii) that what he said could be used against him, does not leave me with a reasonable doubt on the issue of voluntariness.
(i) Fingerprints
[24] The police do not have an obligation to disclose to a person of interest or to a suspect the evidence that they have against him or her when they initially interview this person. The investigation of crimes may require that the police adopt certain investigative technics or tactics, and these are sometimes recognized as necessary, provided however that they do not shock the community (see Oickle, at para. 66). In the circumstance of this case, the police deliberately choosing not to disclose to the accused their active investigation before or during the July 8 interview would not shock the community. On the contrary, it made common sense for the officer to ask open-ended questions rather that to outline their evidence; it avoided or attempted to limit the possibility of tailoring. In addition, not disclosing the fingerprint evidence does not leave me with a reasonable doubt in the overall voluntariness analysis considering the circumstances of this case.
[25] The accused was not presented with fabricated evidence that pointed to his guilt and he did not admit to the crime; he indicated that he did not know the victim and had not been to his apartment. Not being told about his fingerprints at the scene did not falsely convince the accused that claiming to be innocent was futile (avoiding miscarriages of justice is one of the objectives of the voluntariness rule-see Oickle at para. 33). It would not shock the community that he was not told. Moreover, not being told about his fingerprints at the scene did not overcome his operating mind.
(ii) Imperfect caution
[26] Although the accused was not cautioned that what he said could be used against him, this possible result would have been apparent from the circumstances of the interview.
[27] Even when a person is a suspect, the absence or presence of the standard caution is only a factor to be considered when assessing voluntariness (see for example R. v. Bottineau, 2011 ONCA 194, at para. 88).
[28] The accused is not an un-educated young man or a person of lesser intelligence. He had slightly over 20 hours to prepare for this interview and he did conduct online searches for information relating to the victim before attending the interview. The police officer was formal at the outset of the interview indicating the time, place, and fact that the interview was being recorded by cameras. The officer made it clear that this was an active police investigation by major crime. He made it clear that any interview could lead to a suspect or to the accused and that whomever sat in the interview chair could, depending on the evidence, eventually be charged with attempted murder or aggravated assault. All of this would make it obvious that the interview was video-recorded specifically for purposes of the recording being available to the police for future prosecution. As indicated in Bottineau, a “person of modest intelligence would be hard pressed not to conclude that, if she or he were to say anything…such an acknowledgment may be used as evidence in their prosecution”.
[29] I did find that the accused was a suspect prior to the first interview. Considering that the victim was a drug dealer who kept his drugs in a jar, the presence of the accused’s fingerprints on the drug jar would have alerted the police to a realistic prospect that the accused may have been associated with the events of the assault on the victim, such that the accused should have been cautioned. This trigger of a realistic prospect is less than what is required for reasonable grounds but is more than speculation; it certainly does not need to be conclusive (see R. v. Worrall, [2002] O.J. 2711 (Ont. S.C.), and R. v. A.D., 60 W.C.B. (2d) 8 (Ont. S.C.)). Although in the circumstances of this case and for the reasons outlined above this has no impact on my decision; in the circumstances, the accused was not denied the right to make a meaningful choice on whether to speak to the police.
[30] The accused testified on this motion that:
• he knew the interview was filmed and would be kept by the police;
• he knew this was a serious investigation and the police were gathering evidence;
• he could leave (although he felt he had to attend as they had his name and he felt obligated to help the officer, it was the right thing to do);
• he did not have to talk to the police;
• he knew it was important to be honest and truthful; and
• he was not truthful in his statement when he indicated that he did not know the victim because it could be dangerous to snitch out a drug dealer.
[31] How the accused chose to deal differently with different questions, is another indication that he was then speaking voluntarily to the officer. The accused testified on this motion that he chose to answer some questions truthfully, chose to answer some questions untruthfully, and chose not to answer some questions. This indicates that he had an operating mind and contradicts that he was tricked by the non-disclosure of his fingerprints or by his status as a person of interest.
[32] The evidence also indicates that on July 7, 2015, the accused voluntarily gave his telephone number to the police officer for purposes of the July 8 interview (the officer provided his card and the accused his phone number). On July 8 the accused voluntarily corrected his number. The evidence also indicates that the brief off-camera conversation between the accused and the police officer relating to the source of the accused marijuana was voluntary.
Was the accused detained during the interview of July 8, 2015?
[33] Whether a person is detained, for Charter purposes, depends on the circumstances. At one end of the spectrum, it is not disputed that on August 19, 2015, the accused was detained as a result of being arrested and taken in police custody. However, on July 8, 2015, the accused was not arrested or in custody; we are towards the other end of the spectrum where it can occasionally be more difficult to ascertain whether an accused was nonetheless detained.
[34] As indicated by the Supreme Court of Canada, detention can result from physical or psychological restraints: “…detention for purposes of the Charter refers to a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands of the state” (see R. v. Suberu, 2009 SCC 33, at paras. 21 and 25). A person may be detained within the meaning of the Charter without being subject to actual physical restraint. Indeed, psychological detention can occur when a person is legally required to comply with a police direction or demand. It can also occur where there is no legal obligation to comply but a reasonable person in the accused’s position would feel so obligated; feeling that he or she no longer has the freedom to choose whether or not to cooperate with the police. The latter is difficult to define and must be determined objectively considering all the circumstances of the particular situation, including the conduct of the police in the context of the surrounding legal and factual setting and how such police conduct would be perceived by a reasonable person (see R. v. Grant, 2009 SCC 32, at paras. 30, 31, and 44; and R. v. Suberu, at paras. 4, and 21 to 25).
[35] Balancing society’s interest in effective policing and an accused interest in robust Charter rights is a fact specific inquiry that depends on the circumstances of the case, (see R. v. Suberu, at para. 24). R. v. Grant provides factors that the court may consider to determine whether a reasonable person would conclude that he or she had been deprived of the liberty to choose (see para. 44):
a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[36] Similar factors were also mentioned in an earlier decision (see R. v. Moran (1987), 1987 CanLII 124 (ON CA), 36 CCC (3d) 225). In that decision, the Court of Appeal points to the conflict between the right of the police to question any person with respect to an offence and the right of such person to decline to answer. In that context it provides a non-exhaustive list of factors to consider when deciding whether or not such a person is detained:
The precise language used by the police officer in requesting the person to come to the police station, and whether the person was given a choice.
Whether the person was escorted to the police station or came by himself or herself.
Whether the person left at the conclusion of the interview or whether he or she was arrested.
Whether the questioning was part of the general investigation or whether the police had already decided that a crime had been committed and that the person was involved in its commission.
Whether the police had reasonable and probable grounds to believe that the person had committed the crime being investigated.
The nature of the questions: whether there were questions of a general nature designed to obtain information or whether the person was confronted with evidence pointing to his or her guilt.
The subjective belief of the person that he or she is detained, is only somewhat relevant.
[37] When I go through all of these many factors and apply them to the circumstances of this case, I conclude that the accused was not detained in relation to the interview of July 8, 2015.
[38] The accused was asked to attend at the police station on July 7, 2015 and he had over 20 hours to consider this request; he was not pressured or escorted. During this time, the accused conducted some online research about the circumstances of this event. He tried to reschedule the interview to an earlier time. He came to the police station unaccompanied and was not searched prior to the interview. Although I did find that the accused was a suspect, the police did not yet have reasonable and probable grounds to arrest him. He was told that he could leave at any time and he left freely after the interview. He refused to answer certain questions (about drug suppliers). He indicated that he was there to help. The questions, although specific were of a rather general nature in that he was never confronted with evidence pointing to his guilt; the questions were exploratory. Although the accused indicated that he felt he had to attend, a reasonable person in the position of the accused would not believe that he or she had to attend or that he or she was detained. The fact that he was read part of his rights would not lead a reasonable person to conclude that he or she was detained.
If the accused was detained during the interview of July 8, 2015, were his rights under sections 7, 10(a) and 10(b) of the Charter breached? If so, should the statement be excluded pursuant to section 24(2) of the Charter?
[39] The accused was not detained during the interview of July 8, 2015. As a result, the Charter relief sought is not available.
Are the statements made by the accused on August 19, 2015, tainted by his first statements and therefore also inadmissible?
[40] It is not disputed that the accused was detained for purposes of the August 19, 2015, interview and that his Charter rights were respected. The accused does not allege that there was oppression, threats or promises, or a lack of operating mind with regards to the second statement. The argument is rather that the second statement is tainted by the first. This argument is dismissed considering that the first interview of July 8, 2015 was voluntary.
[41] Quite independently of the arguments raised by the accused, the Crown has proven, beyond a reasonable doubt, that the second statement was voluntary.
[42] The accused was properly cautioned at the time of his arrest on August 19, 2015, and, at the insistence of the police, the accused did speak to a lawyer prior to the second interview. Thereafter, the police officer was entitled to interview and to question the accused. Suggestive questions and confrontation with potentially incriminating evidence does not of itself create involuntariness (see generally Oickle). Considering all of the circumstances, the accused voluntarily chose to speak to the police officer during the second interview, to indicate that he did not know the victim and had not been at his residence. There was no atmosphere of oppression, no threats or promises, no improper tricks, and the accused had an operating mind as thereafter the accused chose to exert his right to silence and not to answer further questions.
[43] The accused argued, as a final point during his submissions, the court’s residual discretion to exclude evidence when its prejudicial effect exceeds its probative value. Considering my analysis and findings this result is simply not available.
Conclusion
[44] Consequently, the following is ordered:
a) The accused’s statements to the police on July 8, 2015, including the brief off-camera statements, are admissible.
b) The accused’s utterances of his phone number on July 7 and 8, 2015 are admissible.
c) The first 17 minutes of the audio-video statements of August 19, 2015 to the police officer (or up until the bottom of page 14 of the transcript) are admissible (the Crown did not seek to rely on the other portions of that statement).
P.E. Roger J.
2017/11/24
CITATION : R. v. Brazeau, 2017ONSC 6982
COURT FILE NO.: 15 R-2032
DATE: 2017/11/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen
AND
Tyler Brazeau
BEFORE: Mr. Justice Pierre E. Roger
COUNSEL: Anya Kortenaar, Counsel for the Crown
Maya Shukairy for N. Calvinho, Counsel for the Accused
HEARD: November 1, 2, 3 and 16, 2017
REASONS FOR DECISION
P. E. Roger J.
Released : 2017/11/24