R. v. Johnson, 2017 ONSC 711

CITATION: R. v. Johnson, 2017 ONSC 711

COURT FILE NO.: 8535-13

DATE: 20170131

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KENNETH JOHNSON

Defendant

COUNSEL:

Peter Westgate and Michael Ventola for the Crown

Mary Cremer and Colin Sheppard for the Defendant

HEARD: January 16-19 and 25, 2017

ruling on voluntariness voir dire

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.

Boswell j.

OVERVIEW

[1] Kenny Johnson called 911 at 9:12 a.m. His roommate was unconscious on the toilet. It appeared he wasn’t breathing. He was, in first responder parlance, “vital signs absent”. He was in urgent need of medical attention.

[2] EMS units arrived within minutes, followed quickly by officers of the York Region Police Service: Acting Sergeant Dinwall and Constables Stones and Junner. They were followed about an hour later by two detectives from the Criminal Investigation Branch (the “CIB”).

[3] Mr. Johnson gave two statements to the police at the scene. The admissibility of the first, to PC Stones, is not in issue. The same cannot be said of the second statement, given to CIB detectives. Defence counsel argue that this second statement should be excluded from evidence. They assert that Mr. Johnson’s s. 10 Charter rights were breached: first, to be promptly informed of the reason for his detention; and second, to be informed of his right to counsel and given an opportunity to speak to counsel before being questioned. They further assert that his statement was not made voluntarily because he did not understand his jeopardy at the time he made the statement.

[4] The following reasons explain why I find both statements to be admissible in evidence.

ROADMAP

[5] The admissibility inquiry raises a number of issues, which I will address as follows:

(i) First, given that all of the live issues flow out of the same factual context, I will review in some detail the circumstances surrounding the 911 call and the subsequent police investigation;

(ii) Second, I will review the law in terms of how and when s. 10 rights are triggered under the Charter;

(iii) Third, I will consider the parties’ positions and explain why I find that Mr. Johnson’s s. 10 rights were not triggered;

(iv) Fourth, I will review the legal framework applicable to voluntariness applications; and,

(v) Finally, I will explain why I am satisfied, beyond a reasonable doubt, that Mr. Johnson’s statements were given voluntarily.

I THE FACTS AND CIRCUMSTANCES

The 911 Call

[6] Mr. Johnson’s interaction with authorities began with a 911 call he placed regarding his roommate, Richard Skupien, who was, at that time, without vital signs. The call came into 911 at about 9:08 a.m. on August 24, 2013.

[7] Mr. Johnson told the 911 operator that he needed an ambulance for his roommate. He said the roommate was sitting up in the washroom, not moving and getting cold. He said “he come out, and he fell down and then he went in to the washroom and then I opened the door half an hour later and…”

The Police Respond

[8] Detective Constable Rohan Dinwall testified that he was acting sergeant on road patrol in Richmond Hill on the morning of August 24, 2013. He said that it is routine practice for police to attend any sudden death occurring outside of a hospital. In other words, they attend all vital signs absent (“VSA”) calls as a matter of practice. In this instance he was directed to 10 Centre Street, apartment 6, in Richmond Hill. He arrived on scene at about 9:18 a.m. Almost simultaneously he was joined on scene by PC Frank Stones. Several minutes later they were joined by PC Jeff Junner.

[9] By the time Acting Sgt. Dinwall and PC Stones arrived, EMS personnel were already present and working on resuscitating Mr. Skupien. They had him laid out on the floor of apartment 6.

The Initial Interaction with Mr. Johnson

[10] Ten Centre Street is a two story mixed use building. The ground level is commercial use and the upper floor is residential. Access to apartment 6 was from the rear of the building and up three sets of wooden steps. More specifically, there was a short set of steps leading up to a reasonably large landing area, which led into a tattoo parlor. Then, at a 90 degree turn, there was a longer set of steps leading up to a small landing. On another 90 degree turn there were two or three steps up to the doorway to apartment 6.

[11] Officers Stones and Dinwall encountered Mr. Johnson somewhere on the stairs. None of them could get into apartment 6 because of the presence of the paramedics. PC Stones engaged Mr. Johnson in conversation. He testified that the conversation occurred on the larger landing in front of the tattoo shop. He was not sure where A/Sgt. Dinwall was at the time, though he was in the general vicinity. A/Sgt. Dinwall testified that the conversation between PC Stones and Mr. Johnson took place on the small landing while he stood on the two steps just outside the door to apartment 6, easily within earshot of the conversation. In my view, nothing turns on this discrepancy. I find that the conversation happened somewhere on the steps and within earshot of A/Sgt. Dinwall.

[12] PC Stones testified that Mr. Johnson identified himself and provided his date of birth and a contact phone number. PC Stones then asked him what happened. Mr. Johnson indicated that he was the 911 caller. He said he had heard a crash about 45 minutes earlier and had found that his roommate had fallen down. He said Mr. Skupien was holding his stomach and saying, “it’s my liver…it’s my liver” and that he had to go to the washroom. Mr. Johnson said he helped Mr. Skupien to the washroom. Five minutes later he heard another crash and went to the bathroom and found Mr. Skupien on the floor again. He said he helped Mr. Skupien up onto the toilet and put a cold cloth on his forehead. Five minutes later he went to check on him and found him without vital signs. He then called 911.

[13] PC Stones testified further that he asked Mr. Johnson about the previous evening and Mr. Johnson replied that he and Mr. Skupien had drank some beers and that Mr. Skupien seemed fine.

[14] According to PC Stones, his conversation with Mr. Johnson lasted only two to three minutes. He made notes about the conversation in his police notebook, but the conversation was otherwise not recorded.

[15] A/Sgt. Dinwall testified that he overheard the conversation between PC Stones and Mr. Johnson. Though he did not make notes of it, he said he could independently recollect parts of it. He said that during the conversation Mr. Johnson appeared sober and rational. He appeared to be concerned for the well-being of Mr. Skupien. He was co-operative.

[16] Both PC Stones and A/Sgt. Dinwall testified that throughout their interactions with Mr. Johnson, neither had any reason to suspect that he may have had a hand in Mr. Skupien’s distressed condition.

[17] The attending paramedics managed to resuscitate Mr. Skupien. Once they had a pulse they left the scene to transport him to the hospital. PC Stones followed them, on the instructions of A/Sgt. Dinwall.

The “Stick Around” Request

[18] Sometime after the conversation between Mr. Johnson and PC Stones was completed, A/Sgt. Dinwall says he “asked Mr. Johnson to stick around until detectives from CIB spoke to him because he was the last person to see Mr. Skupien alive.” He conceded that he did not remember the exact words he used, but recalled Mr. Johnson saying “no problem”. Under cross-examination he agreed that he may have told Mr. Johnson that he “should” stay. He denied that he told him he “must” stay.

[19] The timing of the request to Mr. Johnson is in issue. A/Sgt. Dinwall testified that when PC Stones finished speaking with Mr. Johnson, he and PC Stones went into the apartment and observed the paramedics working on Mr. Skupien.

[20] A/Sgt. Dinwall said that he made his request to Mr. Johnson after EMS personnel had resuscitated Mr. Skupien. He agreed that at the preliminary hearing he had said he made the request after PC Stones finished questioning Mr. Johnson. He said that in his view, these two answers amounted to the same thing.

[21] It is not particularly significant for my purposes whether the request was made immediately after the Stones/Johnson conversation ended, or whether it happened after the paramedics found a pulse. More significant is when the request was made relative to when A/Sgt. Dinwall called the CIB. He testified that he made that call after EMS personnel had removed Mr. Skupien from the scene. I find that to be the case. In other words, he called CIB after he told Mr. Johnson that he should stick around.

[22] A/Sgt. Dinwall testified that when he asked Mr. Johnson to stick around, he had no suspicion that Mr. Johnson was involved in Mr. Skupien’s condition. He said Mr. Johnson was free to move about as he wished and in fact went to speak with some of the neighbours. If he wished to leave he could have done so; as a witness he was free to leave. A/Sgt. Dinwall said he took no steps to detain Mr. Johnson.

A/Sgt. Dinwall Calls CIB

[23] Both A/Sgt. Dinwall and PC Stones testified that it was standard practice for detectives from the CIB to attend death calls. A/Sgt. Dinwall said that whenever a person dies outside of a hospital a death investigation is conducted under the direction of CIB detectives.

[24] A/Sgt. Dinwall told the court that he made a call to update CIB detectives while he was looking around inside apartment 6. He recalled that it was Detective Constable Cervini whom he spoke to at CIB, but DC Cervini did not remember such a call. Detective Wright testified that he is the one who spoke to A/Sgt. Dinwall. I find that it was Detective Wright he spoke to.

[25] When he called CIB, A/Sgt. Dinwall advised Detective Wright that the scene was secured; that EMS had got a pulse and transported Mr. Skupien to the hospital; and that there was a witness on scene.

[26] Detective Wright similarly testified that he learned from A/Sgt. Dinwall that there was a witness on scene. He said he expected the witness to be there when he arrived. He understood the witness to be Mr. Johnson, but he said he did not give any particular instructions to A/Sgt. Dinwall about who, if anyone, he wanted to speak to, nor did he give instructions that Mr. Johnson be detained. As I indicated, I find that A/Sgt. Dinwall had already asked Mr. Johnson to stick around before he called the CIB.

The Involvement of the CIB

[27] Detective Wright testified that he has been with the CIB since 2012. He is a trained death investigator. On August 24, 2013 he got a call from the York Region Police communications centre advising him that there was a VSA call at 10 Centre Street, Richmond Hill, involving a 53 year old male.

[28] He said the CIB has a mandate to investigate cases of sudden death. He said York Region police attend all VSA calls and conduct death investigations. He clarified that a death investigation is not a criminal investigation, but it can lead to one if the investigation reveals criminal activity.

[29] The communications centre provided Detective Wright with an occurrence number. He used that number to access an occurrence report in a records-keeping system used by the York Region Police Service known as Versadex. He found that two names were associated with the VSA call: Richard Skupien and Kenneth Johnson. He did background checks on both. He found that Mr. Johnson was known to the police. He had a criminal record and local antecedents dating back to 1984. He had been a parolee. He was formerly associated with the Outlaws Motorcycle Club. He purportedly hated police.

[30] The most recent record in Versadex relating to Mr. Johnson was in 2012, involving an assault with a weapon at a local establishment, though the charges were dropped in May 2012. Detective Wright said he was somewhat concerned by what he read because it suggested that Mr. Johnson had a violent nature. That said, he was steadfast in his testimony that he had not prejudged anything and had no reason to believe that Mr. Johnson was involved in harming Mr. Skupien.

[31] Detective Wright and DC Cervini arrived on scene at 10 Centre Street at about 9:58 a.m. When they arrived, Mr. Skupien was no longer present, nor was PC Stones, but Officers Dinwall and Junner were there.

[32] Detective Wright recognized Mr. Johnson and saw him sitting at a picnic table with another male, who was later identified as his son, Josh Passer. He did not initially speak to Mr. Johnson, however, preferring to first speak to Officers Dinwall and Junner and to take a look through apartment 6. He made a sketch of the apartment in his notebook.

[33] Detective Wright described the apartment as messy and unkempt. He said he was trying to get a visual image of the apartment before he spoke to Mr. Johnson so he could put the conversation into context. He was also on the lookout for any signs of a struggle. One thing he noted was a bedroom door off its hinges and with a hole in it. He said that when he had completed his review of the apartment he had no reason to suspect that anything criminal had occurred.

The Interview with the Detectives

[34] When Detective Wright was finished looking through apartment 6, he and DC Cervini proceeded to interview Mr. Johnson. The conversation took place at what has been described as a picnic table in a little courtyard behind 10 Centre Street. A/Sgt. Dinwall introduced the detectives to Mr. Johnson, then stood nearby as the interview proceeded.

[35] Detective Wright testified that he identified himself to Mr. Johnson as a detective from the CIB. He told Mr. Johnson that they wanted to take a statement to assist them in their investigation into the VSA call. He said Mr. Johnson agreed to speak to them and that he was cooperative. He said there was no concern in his mind, at this time, that there was any foul play or that Mr. Johnson had been criminally involved. He said this was a “pure version statement” of a witness. For that reason he did not caution Mr. Johnson that he was not obliged to say anything and that whatever he said could be used in evidence at some later date.

[36] Detective Wright confirmed during cross-examination that he did not inform Mr. Johnson of his right to counsel. He did not tell him that the police were conducting a death investigation. What he told him, he said, was that they were with the CIB and making an investigation into the VSA call. He told Mr. Johnson that they wanted to take a statement to assist the police.

[37] Mr. Johnson was prevented from re-entering his apartment, but he was not told how long that prohibition would last. He was not told that the apartment was secured as a coroner’s scene.

[38] The interview of Mr. Johnson started at about 10:15 a.m. It was audio recorded on a digital audio recorder that Detective Wright had brought along. Only Detective Wright asked questions. He started with the open-ended question, “What, if anything, can you tell me about what happened today?”

[39] Mr. Johnson more or less repeated the information he gave to PC Stones. He said that about an hour ago he had awoken to a crash. He got up and found Mr. Skupien on the floor. He asked if Mr. Skupien was okay and Mr. Skupien replied, “It’s my liver…it’s my liver” and said he just needed to go to the washroom. Mr. Johnson said he helped Mr. Skupien to the washroom and got him a cold cloth. He then left the washroom. He heard another crash and went back and found Mr. Skupien on the floor again. He helped him back up onto the toilet and left again. Five minutes later he went to check on him and found him with his head back and mouth open, unconscious.

[40] A few minutes into the conversation, Detective Wright asked Mr. Johnson what time he had gone to bed. He said 3:00 – 3:30 a.m. He said he heard the first crash a couple – three hours after that, so 5:30 – 6:00 a.m. This is obviously inconsistent with the timing he had previously described. Detective Wright testified that he was not suspicious as a result of this discrepancy; he thought Mr. Johnson was just confused.

[41] The conversation continued. Detective Wright asked about what had happened the night before. He asked about any medications Mr. Skupien took. He asked Mr. Johnson to identify whose bedroom was whose and asked specifically about the door off the hinges. Mr. Johnson said it had been like that for months.

[42] The conversation concluded at about 10:24 a.m. Detective Wright testified that by the end of Mr. Johnson’s statement there was no reason to be suspicious of him. The whole episode appeared to him to be a medical issue.

The Hospital Visit and the Interview of Ms. Paul

[43] After interviewing Mr. Johnson, Detective Wright and DC Cervini went to the hospital to check on the status of Mr. Skupien. While there, they spoke with and then conducted an audio-recorded interview of Michelle Paul, who had been Mr. Skupien’s girlfriend until about a week before his death. They asked her about Mr. Skupien’s medical condition and covered some other issues, then Detective Wright asked “Do you know this roommate of his, this Johnson guy? What can you tell me about him?” He went on to ask if they got along, or if they had disagreements and whether she knew if they got into any fights she was aware of. Ms. Paul confirmed they had had some fights and that she had heard them arguing the night before. Still, Detective Wright said he was not suspicious at this time that Mr. Johnson was involved in Mr. Skupien’s current medical condition.

[44] Under cross-examination, Detective Wright continued to deny that he had any reason to suspect that Mr. Johnson was in some way responsible for Mr. Skupien’s medical condition. He was unable to say what the relevance was to his questions about fighting between Mr. Johnson and Mr. Skupien. He said he was just interested in whatever information Ms. Paul had, though he had no reason to suspect Mr. Johnson.

The Death of Mr. Skupien

[45] Mr. Skupien died about 1:00 p.m. By that time Detective Wright and DC Cervini were back at the CIB offices. PC Stones called DC Cervini and advised him. DC Cervini passed the information along to Detective Wright. PC Stones called again at about 2:30 p.m. and advised that the attending physician had opined that the cause of death was natural – related to gastrointestinal bleeding – and that the coroner would not be attending.

[46] Detective Wright attempted to reach the coroner by phone. He again insisted that he was not suspicious of foul play and he denied the suggestion by defence counsel that he wanted to advise the coroner that he took issue with the opinion of the attending physician as to cause of death. He essentially suggested that he was just being thorough and wanted to confirm with the coroner that he could release the scene.

[47] Later in the afternoon Detective Wright spoke to Dr. Markus, the on-call coroner. Dr. Markus said he would follow up with the attending physician. He did and after he called back and spoke to Detective Wright again, the death was ruled to have been of natural causes; apartment 6 was released; and the death investigation essentially concluded.

II TRIGGERING s. 10 RIGHTS

[48] All Canadians enjoy the right to be treated in accordance with the principles of fundamental justice. This is a core value and it is entrenched in s. 7 of the Charter of Rights and Freedoms.

[49] A central principle of fundamental justice is the right of an accused person not to self-incriminate. One aspect of this principle is the right to silence: R. v. Morrison, 2000 CarswellOnt. 5811 (S.C.J.) at para. 56.

[50] In this case, Mr. Johnson takes the position that he was not treated in accordance with the principles of fundamental justice. He says his right to silence was not respected by the police. More specifically, that he was deprived of the ability to make a meaningful choice about whether to speak to the police because his s. 10 rights were not observed and because he did not know what was at stake when he spoke to the police. He did not know he was a suspect.

[51] Ordinarily, a person confronted by the police has the choice not to talk to them and the option to simply walk away: see R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2. Not everyone is aware of that option of course and indeed, when individuals find themselves face-to-face with the authority of the state, as manifested by a police officer, they may very well feel like they are obliged to comply with the demands of the police, including requests for information. There is undoubtedly a significant power imbalance between the state and the individual. In some circumstances that power imbalance can threaten the rights of the individual – particularly the right against self-incrimination.

[52] At the same time, not every encounter between the police and members of the public raises concerns about self-incrimination or otherwise threatens the rights of the individual. One can readily think of a great many situations involving interactions between police officers and members of the community that are entirely benign, if not overtly helpful. The police are involved in many aspects of the community. Law enforcement, while a core function, is not the only function of the police. Moreover, even law enforcement requires a great deal of cooperation between the police and members of the community: R. v. Grant, 2009 SCC 32 (“Grant”) at para. 39.

[53] Ultimately, as is so often the case, a balance must be struck between the rights of the individual, on the one hand, and on the other hand, “the collective interest of all members of society in the ability of the police to act on their behalf to investigate and prevent crime.” (Grant, para. 39).

[54] Section 10 of the Charter seeks to achieve such a balance. On the one hand, it seeks to protect an individual’s choice whether to speak to authorities by imposing specific informational requirements on state actors: R. v. Bartle, (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 (SCC) at para. 16. On the other hand, it implicitly recognizes that not every encounter between the police and a member of the public will trigger these informational requirements. It expressly provides that they are only engaged upon arrest or detention – situations in which the power imbalance between the state and the individual is particularly acute.

[55] Section 10 provides, in part, as follows:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor; and

(b) to retain and instruct counsel without delay and to be informed of that right;

[56] The significance of detention as a triggering factor to s. 10 rights was addressed by Chief Justice McLachlin and Justice Charron, who co-wrote the majority decision in Grant. They observed, at para. 22:

"Detention" … identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. These rights are engaged by the vulnerable position of the person who has been taken into the effective control of the state authorities. They are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination. They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty.

[57] The threshold question, then, is whether Mr. Johnson was detained at any point during his encounter with the police following his 911 call.

[58] Obviously not every encounter between members of the public and police officers involves a detention. The concept of detention has received significant jurisprudential attention at all levels of court. In R. v. Mann, 2004 SCC 52, Iacobucci J. described detention in the following terms, at para. 19:

"Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

[59] The requirement of physical or psychological restraint as a necessary aspect of detention was explored further by the Supreme Court in Grant, where the majority focused on the presence or absence of choice as the determining factor as to whether a detention occurred. By “choice”, I mean the option to exit, or to otherwise elect not to speak to the police.

[60] In the case at bar there is no assertion that Mr. Johnson was physically restrained or detained. The assertion is that he was psychologically detained.

[61] The court in Grant reaffirmed its earlier views expressed in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, to the effect that a person is psychologically detained “where he or she submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.” (Grant, para. 28). While that language appears to envision a subjective analysis, the determination of whether the requisite psychological compulsion exists is to be determined objectively. The question is whether a reasonable person, in the prevailing circumstances, would conclude that he or she was not free to go and had to comply with the directives or demands of the police.

[62] In conducting an objective assessment, the court may consider the following factors, amongst others:

a) The circumstances giving rise to the encounter as 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 focussed 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; and,

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; or level of sophistication.

(Grant, para. 44)

[63] To draw a conclusion about the presence or absence of a detention, the court must engage in “a realistic appraisal of the entire interaction as it developed”. (Grant, para 32). I will engage in that appraisal next.

III WAS MR. JOHNSON DETAINED?

The Position of the Defence

[64] The party asserting a Charter breach has the onus to establish the breach on a balance of probabilities. In this case, that means Mr. Johnson must establish, on a balance of probabilities, that he was detained. The evidence is otherwise clear that he was not advised of his jeopardy, the reason for any detention, or his right to retain and instruct counsel.

[65] The defence position focuses on the conduct and state of mind of Detective Wright. Defence counsel submit that Detective Wright formed an opinion about Mr. Johnson as soon as he did a background check on him in the Versadex system. He immediately formed a suspicion that the VSA call involved foul play and that the perpetrator of that foul play was Mr. Johnson. Defence counsel argue that this opinion informs everything that happened throughout the balance of the day on August 24, 2013.

[66] Despite Detective Wright’s protestations to the contrary, defence counsel argue that 10 Centre Street was treated like a crime scene and not a coroner’s scene. Moreover, Detective Wright’s investigation was a crime investigation and not a death investigation as he portrayed it.

[67] Defence counsel submit that the following features support the conclusion that Detective Wright suspected Mr. Johnson of committing a criminal act:

(a) The apartment was secured at a time when Mr. Skupien had not died. The security was maintained even after the attending physician opined that Mr. Skupien died of natural causes;

(b) He directed A/Sgt. Dinwall to keep Mr. Johnson at the scene;

(c) He did a walk-through of the apartment and made a sketch. Notably he identified Mr. Skupien’s bedroom as that of the victim. He also noted the presence of a door off its hinges and with a hole in it, as well as fecal matter in the toilet;

(d) He referred to Mr. Skupien repeatedly as “the victim”;

(e) He questioned only Mr. Johnson at the scene;

(f) He asked Mr. Johnson pointed questions throughout the interview about matters that could only be interpreted as evidence-gathering;

(g) He questioned Ms. Paul at the hospital and asked her about Mr. Johnson and whether there had been any fighting between Mr. Johnson and Mr. Skupien. When cross-examined about the relevance of those questions, he could not provide an answer;

(h) Even though the attending emergency physician ruled the death to have been from natural causes he insisted on speaking to the on-call coroner before accepting that opinion; and,

(i) He later wrote a report that tended to implicate Mr. Johnson, even though he had no reason to believe that a crime had even been committed.

[68] The defence position is that Detective Wright’s suspicion of Mr. Johnson was motivation to insist that he be detained at the scene for questioning, and indeed he was so detained. Further, and because of that suspicion, Detective Wright knew Mr. Johnson faced personal jeopardy before he questioned him. He nevertheless failed to caution him in an intentional effort to avoid any potential roadblocks to obtaining a statement.

[69] Defence counsel recognize, of course, that the test of whether a psychological detention occurred is an objective one: would a reasonable person believe that s/he had no choice but to stay on scene and comply with the demands of the police?

[70] Counsel spent a significant amount of energy on the issue of Detective Wright’s suspicious state of mind. While his state of mind does not directly bear on the presence or absence of a detention, counsel asserts that this ever-present suspicion on the part of the officer in charge set the table, as it were, for the detention and the subsequent Charter breaches.

[71] Defence counsel submit that Detective Wright’s suspicion makes it more likely that he insisted that Mr. Johnson stay on the scene. Further, that such insistence was more than likely conveyed to Mr. Johnson. They submit that a reasonable person in Mr. Johnson’s position would have felt psychologically detained based on factors that include the following:

(a) The police attended in numbers and any reasonable person would have felt at least somewhat intimidated;

(b) The police took control of the scene. This control included at least some measure of control over Mr. Johnson’s movements. They secured Mr. Johnson’s apartment and prevented him from entering it;

(c) The senior officer on scene told Mr. Johnson that he should wait around to speak to detectives who were coming and who would want to speak to him. In an environment where the police had clearly taken control, this would be viewed by the reasonable person as a direction, not just a request; and,

(d) He was singled out by the police for attention. He would have understood that the police investigation was focussing on him.

The Position of the Crown

[72] The Crown’s position is straightforward: there was no detention. This was a medical emergency call. The police were simply carrying out their mandate to investigate sudden death (VSA) calls. Mr. Johnson was the only witness and naturally they sought to get information from him relative to the event. He was not under suspicion. It was not a criminal investigation. He was not compelled to stay. The Crown submits that A/Sgt. Dinwall’s request that Mr. Johnson “stick around” to speak to detectives was nothing more than that – a request. He was otherwise free to move about, or to come and go. His interactions with the police were brief and courteous and entirely voluntary.

Discussion

[73] As the foregoing review suggests, there were numerous points during the narrative when defence counsel suggested to both PC Stones and Detective Wright that they must have had suspicions about Mr. Johnson and his possible involvement in Mr. Skupien’s distress. Whenever confronted with such a suggestion, the officers each maintained that they had no such suspicions, that this investigation never became a criminal investigation and that they never suspected Mr. Johnson of having caused Mr. Skupien’s medical distress.

[74] For the purposes of the s. 10 analysis, the possibility that Mr. Johnson may have been under suspicion is neither here nor there. Section 10 rights are not triggered by suspicion, but rather by detention: see R. v. Morrison, 2000 CarswellOnt 5811 (S.C.J.) at para. 56.

[75] Again, the determination of whether Mr. Johnson was psychologically detained is based on an objective assessment of all of the circumstances: would a reasonable person in Mr. Johnson’s position believe that she or he was not free to leave and had no choice but to comply with the directives of the police?

[76] Mr. Johnson gave two statements to the police. I will consider each one in turn. I recognize that the admissibility of the first statement is not contested. That said, in my view, both statements were part of the same unfolding narrative. Both are part of the “entire interaction as it developed” and both are worth reviewing.

[77] The narrative in this case began with the 911 call. Any reasonable person who calls 911 expects emergency service providers to respond to the call. Indeed, that is the very reason for the call – to summon emergency assistance. Moreover, any reasonable person who summons emergency responders will anticipate being asked the obvious question: “what happened?”

[78] In my view, a reasonable person would anticipate that police would respond to a VSA call, along with paramedics. PC Stones was the first police officer on the scene. He quite naturally asked Mr. Johnson what happened. Mr. Johnson responded and provided more or less the same information that he had given during the 911 call.

[79] There is no basis upon which to conclude that Mr. Johnson’s s. 10 rights were abridged by PC Stones. To suggest otherwise would be tantamount to requiring the police to advise everyone they talk to that they first have a right to consult with counsel – a concept entirely rejected by the Supreme Court in Grant. Mr. Johnson summoned the police through his 911 call. He expressed grave concern for his roommate. As one would expect, the attending police asked him what happened. They did so in a context entirely devoid of any physical or psychological restraint.

[80] While the defence concede that Mr. Johnson was not detained when speaking to PC Stones, they assert that his detention began shortly after that conversation ended. They submit that Mr. Johnson became detained with the direction from A/Sgt. Dinwall to “stick around” and continued until the end of the interview with the CIB detectives.

[81] The wording of A/Sgt. Dinwall’s direction is important, but not altogether certain. The best recollection of A/Sgt. Dinwall was that he told Mr. Johnson he should “stick around” because detectives were coming and they would want to speak to him.

[82] A/Sgt. Dinwall’s direction clearly did not amount to a physical restraint. Nor did the subsequent conversation between Mr. Johnson and the CIB detectives. But the issue is whether the circumstances occurring between the “stick around” direction and the end of the interview were such that a reasonable person in Mr. Johnson’s position would reasonably perceive that she or he was restrained and had no choice but to “stick around” and speak to the detectives? In my view, and having regard to the factors identified by the Supreme Court in Grant, the answer is no.

[83] I will consider the factors identified in Grant in turn.

(i) The Circumstances Giving Rise to the Encounter

[84] This first factor involves an examination of the circumstances giving rise to the encounter between Mr. Johnson and the police – as reasonably perceived by a person in Mr. Johnson’s position.

[85] Despite defence counsel’s admirable efforts, I am unpersuaded that the police were conducting a criminal investigation of Mr. Johnson at any time. The simple fact is, Mr. Johnson summoned emergency responders. They did not come looking for him. If Mr. Johnson is taken out of the equation and the ubiquitous “reasonable person” substituted for him, the circumstances involve a reasonable person finding his roommate in grave medical distress. He calls 911 – a perfectly reasonable reaction – and awaits the arrival of emergency responders. Those responders attend and, reasonably and expectedly, ask him what happened.

[86] Nothing about the scene at 10 Centre Street gave any real indication that a crime had been committed. There were no obvious signs of a struggle. There were no obvious signs of trauma to Mr. Skupien’s body. This was, by all appearances, a medical emergency call and nothing more.

[87] Although Mr. Johnson was in a sense singled out for interviews, he was the only witness to the events in the apartment, so it was inevitable that the police would want to speak to him. He would have appreciated that he was the only person who could tell the police what had transpired in the short time before Mr. Skupien lost vital signs. He was told that the detectives were investigating the VSA call and he would have known that he was the primary source of information that might assist them.

[88] The interview with the detectives was relatively brief, perhaps nine minutes long. It took place in an informal setting.

[89] The questions put to Mr. Johnson were, by and large, general and open-ended in nature. Detective Wright did ask him a number of questions about specific issues, but by and large it was an open-ended interview. Mr. Johnson wasn’t challenged or confronted on any point. It was not, in my view, substantially different than the discussion between Mr. Johnson and PC Stones, save that it was recorded.

[90] The circumstances, on the whole, support a reasonable perception that Mr. Skupien had suffered a medical emergency and the police were doing their best to find out what happened to him, rather than intending to deprive Mr. Johnson of his liberty.

(ii) The Nature of Police Conduct

[91] It would appear to me that the police were at all times courteous and respectful to Mr. Johnson and conducted themselves as one might expect them to when responding to a 911 call regarding a sudden death (or near death).

[92] There is no evidence of threats or aggressive conduct towards Mr. Johnson. No pressure was placed upon him to do or say anything. There is no evidence of physical contact. Mr. Johnson gave every impression, from and after the 911 call, that he was concerned for his roommate and wanted to assist the police.

[93] I am not troubled by A/Sgt. Dinwall’s request that Mr. Johnson stick around because the detectives would want to speak to him. Some further information might ideally have been provided to Mr. Johnson regarding the nature of the investigation: why detectives would be coming; what their investigation consists of. But even so, Mr. Johnson would have appreciated that there was an investigation ongoing given the grave condition of his roommate. He would have appreciated that he was the sole eyewitness. It would not have surprised him to learn that the police wanted his help.

[94] He would also have received that request from A/Sgt. Dinwall in a context where he was free to move about; where he was not being watched by officers or segregated from others. He was able to go and speak with the neighbours as he saw fit. He could readily have left had he wished or needed to.

[95] When the CIB detectives arrived, they asked Mr. Johnson’s permission to take a statement from him. They also asked his permission to record the statement. In both respects, he appears to have willingly obliged.

(iii) The Characteristics of Mr. Johnson

[96] While the assessment of psychological detention is an objective one, the question is whether a reasonable person in Mr. Johnson’s circumstances would have believed he had lost his freedom of choice. Thus, his personal circumstances may be considered, insofar as they bear on the dynamics of the encounter: R. v. Suberu, 2009 SCC 33, at para. 34.

[97] Mr. Johnson did not testify on the voir dire. There was no evidence about his personal experience, feelings or understanding. There is evidence that he was, by no means, a shrinking violet and that there may be no love lost between him the police.

[98] There is also evidence that he was distressed and anxious for his friend/roommate. It seems to me that a reasonable person whose roommate has just collapsed and lost vital signs in front of them would be anxious to help emergency responders in any way that they could. Mr. Johnson gave every indication that he was behaving exactly as such a reasonable person would.

[99] It seems to me that the circumstances of this case fall squarely within the type of factual scenario expressly described by McLachin CJC and Charron J in Grant as not giving rise to a detention:

We may rule out at the outset situations where the police are acting in a non-adversarial role and assisting members of the public in circumstances commonly accepted as lacking the essential character of a detention. In many common situations, reasonable people understand that the police are not constraining individual choices, but rather helping people or gathering information. For instance, the reasonable person would understand that a police officer who attends at a medical emergency on a 911 call is not detaining the individuals he or she encounters. This is so even if the police in taking control of the situation, effectively interfere with an individual’s freedom of movement. Such deprivations of liberty will not be significant enough to attract Charter scrutiny because they do not attract legal consequences for the concerned individuals. (Para. 36).

[100] The fact that Mr. Johnson later fell under the investigative lens of the police as a result of the post-mortem examination does not change the situation on the ground on August 24, 2013: see Grant, para. 38.

[101] In the result, I am not satisfied that Mr. Johnson was detained. It follows that Mr. Johnson’s s. 10 rights were not breached. That conclusion does not end the matter, of course, because the court must still be satisfied beyond a reasonable doubt that Mr. Johnson’s statements were given voluntarily. I will turn, in the circumstances, to the voluntariness inquiry.

IV THE VOLUNTARINESS INQUIRY

[102] The leading case on voluntariness applications remains Justice Iacobucci’s decision in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 (S.C.C.). Justice Iacobucci observed that the basic idea is quite simple: a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. At paragraph 69 of the decision, he wrote as follows:

Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.

[103] In assessing voluntariness of a statement, the court must examine and evaluate all of the circumstances surrounding the making of the statement, including, but not limited to the following factors:

(i) threats;

(ii) promises;

(iii) oppression;

(iv) the requirement of an operating mind; and,

(v) police trickery.

[104] All of the circumstances must be considered in a contextual and purposeful fashion.

[105] In this case, defence counsel conceded that the traditional Oickle factors are, by and large, not present. There is no evidence of threats, promises or oppression. There is no assertion that Mr. Johnson did not have an operating mind.

[106] The defence position is that Detective Wright suspected that a crime had been committed. And he suspected that Mr. Johnson was the perpetrator of that crime. Even so, he did not advise Mr. Johnson that he was suspected of participation in a crime before the interview. Mr. Johnson would have had no idea of the jeopardy he faced. In this sense, the defence argues, there was an element of police trickery.

[107] What is really asserted is that the circumstances of this case gave rise to an obligation on the part of the police to caution Mr. Johnson. Their failure to do so, the defence asserts, undermines the voluntariness of his statements.

[108] The defence rely on R. v. Worrall, 2002 CarswellOnt. 5171 (S.C.J.) where Watt J., as he then was, described the concept as follows, at para. 106:

Voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them. Neither Detective Constable Chiasson nor Detective Scott told Joseph Worrall…that what he said could be used in his prosecution for an offence arising out of his conduct in connection with the death of Brendan Carlin….

[109] In Worrall, the deceased was found lying in a construction site in downtown Toronto. The police were attempting to identify him and to determine his cause of death. They contacted a man believed to be his brother, with whom he lived, and brought him down to the station to speak to him, as a witness. At the time they had no information about how the deceased had died, or any reason to suspect that Mr. Worrall was involved in the death.

[110] When the police arrived at the station, Mr. Worrall stood outside with an officer smoking a cigarette. He mentioned that he and his brother had been doing heroin. He said he gave it to his brother and feared that perhaps he gave him too much. This information is, of course, evidence of a criminal offence; in particular, unlawful act manslaughter. Nevertheless, when the police subsequently questioned Mr. Worrall they did not caution him that he did not need to say anything and that anything he did say may be used in evidence.

[111] Justice Watt concluded that any reasonable officer, having heard the comments about heroin, would have been alerted to the possibility that Mr. Worrall was criminally involved in Mr. Carlin’s death. The failure to caution him rendered involuntary the statements given after Mr. Worrall’s disclosure about heroin.

[112] To be clear, a failure to caution a person – even one suspected of a crime – is not a breach of any common law or Charter right of an accused person. It is, however, one factor that the court may consider in its contextual and purposeful analysis of the voluntariness issue. It may, in some circumstances, “effectively and unfairly” deny the suspect his free choice about whether to speak to the police: R. v. Morrison, 2000 CarsellOnt. 5811 (S.C.J.), at paras. 53-57.

V WERE MR. JOHNSON’S STATEMENTS VOLUNTARY?

[113] In this case it appears to me that Mr. Johnson was more than willing to speak to the police. He placed the 911 call thereby summoning emergency responders. He was justifiably concerned about the grave condition of his friend. He appeared, from all accounts, to want the best for Mr. Skupien.

[114] There is nothing in the circumstances present here that raises a reasonable doubt in my mind about the voluntariness of the statements. The only issue identified – apart from the alleged s. 10 breaches – is the failure of the detectives to caution Mr. Johnson.

[115] I accept that a statement may not be voluntarily given if the circumstances are such that the statement-maker has no idea what’s really at stake. In such circumstances, the court may view the circumstances as an intolerable encroachment on the fundamental right not to self-incriminate.

[116] In the particular circumstances of this case, however, I am not persuaded that Mr. Johnson’s liberty was at stake at the time he was questioned by the CIB detectives. I say this for three reasons. First, I am not persuaded that any of the attending police officers formed the view that a crime had been committed. Second, I am not persuaded that any of the attending officers formed the view that Mr. Johnson was a suspect. Third, I am not persuaded that a reasonable investigator in the same circumstances would have viewed Mr. Johnson as a suspect.

[117] Like R. v. Worrall, investigators here initially had no information or evidence upon which they could reasonably conclude that a crime had been committed. Unlike the situation in Worrall, however, that state of affairs did not change prior to the interview between the CIB detectives and Mr. Johnson. In fact it didn’t change until several days later.

[118] In the absence of some reasonable evidence that a crime had been committed, one could not reasonably suspect anyone of being involved in it. That seems to me to be a straightforward proposition. In my view, none of the attending officers here suspected that a crime had been committed. None therefore formed the view that Mr. Johnson was a suspect. I believe that Detective Wright probably felt uneasy about the circumstances. But that uneasiness never rose to the level of a genuine suspicion because the evidence did not support a rational conclusion that a crime had been committed.

[119] In any event, the ultimate question is not about what Detective Wright thought. Instead, it is an objective test: would a reasonable investigator have concluded that Mr. Johnson was a suspect? I accept that Detective Wright’s subjective views may be relevant to determining whether a reasonable officer would have objectively viewed Mr. Johnson as a suspect. That said, as I indicated, I do not believe Detective Wright’s subjective views ever rose above uneasiness.

[120] The legal concept of a “suspect” was discussed in some detail by Trafford J. in R. v. Morrison, as above, at para. 50, where he held as follows:

A person is a "suspect" when, objectively viewed, the information collected during an investigation tends to implicate him/her in the crime. It is an objective test, not a subjective one, that is to be applied to the totality of the information. An objective test better cares for the public interest in imposing duties on interrogating officers when the coercive power of the state is brought to bear on an individual in the context of a custodial interrogation. The frailty of the information collected during the investigation, if any, is to be considered in assessing its tendency to implicate a person.

[121] The following circumstances appear to me to be relevant to the objective determination of whether Mr. Johnson was properly considered a suspect at the time he was interviewed:

(a) He had a criminal record with violent antecedents. He was associated at one time with a motorcycle gang. He purportedly hated the police;

(b) He called 911 and summoned emergency responders to his home due to a medical emergency with Mr. Skupien;

(c) He remained at the scene and willingly answered the questions of first responders;

(d) He remained at the scene when requested to do so by A/Sgt. Dinwall, in order to speak with detectives;

(e) There was no evidence of a violent struggle in the home, save for a hole in a door, which Mr. Johnson said had been there for months;

(f) The first EMS personnel on the scene found Mr. Skupien on the toilet with his pants down and fecal matter in the bowl – entirely consistent with Mr. Johnson’s version of events as relayed to the 911 operator and to PC Stones; and,

(g) There were no signs of trauma to Mr. Skupien. Indeed, indicia of foul play were so thoroughly absent that the attending emergency physician subsequently ruled Mr. Skupien’s death to have been from natural causes and the coroner agreed.

[122] Each police officer who testified – PC Stones, A/Sgt. Dinwall, DC Cervini and Detective Wright – said that they had no reason to suspect Mr. Johnson of any criminal wrongdoing. Each said they had no reason to suspect a crime had been committed. Each said he viewed the call as being a medical call.

[123] No reason was advanced during argument to doubt the veracity of those statements insofar as they came from everyone but Detective Wright.

[124] The distinguishing feature with respect to Detective Wright was that he did some background checks on Mr. Johnson and Mr. Skupien prior to attending the scene at 10 Centre Street.

[125] The records in the Versadex system informed Detective Wright that Mr. Johnson was known to the police; he was known to hate the police; he had a criminal record; he was formerly associated with a biker gang; and, he had been involved in a violent incident at a local bar the year before, but charges had been withdrawn.

[126] Detective Wright did not otherwise check Mr. Johnson’s criminal record.

[127] At the same time, the Versadex records alerted Detective Wright to some factors relevant to Mr. Skupien. For instance, he had a criminal record; he was known to have mental instability; and he was known to have suicidal tendencies.

[128] In my view, the information contained in the Versadex system would be of interest to investigators attending the scene. As Detective Wright said, information is power to them. But this information, without some compelling evidence that a crime had actually been committed, could not reasonably translate the situation on the ground into a crime and Mr. Johnson into a suspect.

[129] Defence counsel submitted that Detective Wright’s suspicion was based on a hunch. Even if that is right, in my view it could not, in the circumstances of this case, rise above speculation.

[130] In my view, a reasonable investigator, on the facts present here, would not have viewed Mr. Johnson as a suspect at the time he was questioned. In the result, a caution was not required. At the time of the interview, Mr. Johnson was not in jeopardy.

[131] There being no other reason to doubt the voluntariness of Mr. Johnson’s statements, I am satisfied, beyond a reasonable doubt, that both were voluntary and are admissible.

Boswell J.

Released: January 31, 2017