Court File and Parties

COURT FILE NO.: CrimJ(P)1805/16 DATE: 2017 12 06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN C. Hackett, for the Crown

- and -

J.M. J. Sickinger, for the Defendant

HEARD: October 16-17, 2017

RULING

D. E. Harris, J.

INTRODUCTION

[1] This is my ruling on a Crown application to admit as voluntary the accused JM’s statement upon arrest to Constable Bravener of the Peel Regional Police.

[2] This was a fairly short, non-confrontational interview. The officer was not persistent. There was no oppression in the classic sense and the accused at all times had an operating mind. Much longer, more aggressive police interviews have been approved by the courts.

[3] The police are permitted to use persuasion and some degree of subterfuge. Nonetheless, there are lines the police cannot cross. A pointed attack on the right to silence, the value which anchors voluntariness, even if just a few questions, can lead to inadmissibility.

[4] In this case, the defence relies on the accused’s assertion of his right to silence in the interview, telling the officer that talking would not make any difference to the allegations against him. After hearing this, the officer suggested that it was possible the accused might not be charged if he gave his side of the story. The officer also expressed the opinion that an early explanation in the interview room rather than a story presented a year later by his lawyer would likely be more credible in the eyes of a trial judge. It was soon after this that the accused responded to the allegations put to him by Cst. Bravener. The defence argues that based on these two statements, the Crown has failed in its onus to prove voluntariness.

EVIDENCE

[5] The key facts are not in dispute. The accused was asked to attend the police station where he was arrested for sexual assault and then placed in an interview room. Cst. Walker was the officer who had contacted the accused by telephone and asked him to come in to the station. He told the accused to contact counsel in advance. It took a few calls from the officer before the accused agreed to come in.

[6] According to Cst. Walker’s evidence, in one of the telephone conversations, he told the accused that he would be arrested for sexual assault. No details of any kind were given about the allegation, including who was making it.

[7] The accused testified in the voluntariness voir dire and denied that he was told by Walker that he would be arrested. The accused did agree that he was told he could contact a lawyer. He spoke to someone in his lawyer’s office briefly but his counsel was on vacation.

[8] Constable Bravener testified that he was brought in to the investigation only to conduct the interview of JM. Constable Bravener has been a police officer for 16 years and has been on the special victims unit for 2 years. He has a great deal of experience interviewing accused persons.

[9] Cst. Bravener said that his purpose in the interview was to get the accused’s side of the story. The officer conveyed this and put the complainant’s allegations of sexual assault to the accused but without much detail.

[10] In his evidence before me, Cst. Bravener said he was not a 100% certain that he would charge the accused. There could be alibi evidence or a recording of the complainant which the accused could point to, dissuading him from laying a charge.

[11] In cross-examination, Cst. Bravener did not strongly resist the suggestion that an alibi would have been difficult to assert as the accused had not been given specifics about when the sexual assault was alleged to have occurred. Nor had the accused been given any real details of the allegations.

[12] Before the interview started and during the interview, the accused told the officer that he had consulted counsel. The right to counsel and both the primary and secondary cautions were given during the interview. The accused declined to exercise his right to speak with counsel.

[13] Early on in the interview, the officer told the accused to interrupt him with a different version anytime. The accused replied:

“It’s not making a difference, so I’m not gonna say anything.”

[14] When asked why not, the accused said,

“Because it’s a his-, he said or she said. It’s a waste of time.”

[15] The accused reiterated this in the excerpt below just before the inducements were offered.

[16] The accused relies on two specific inducements in arguing that the Crown has not proved voluntariness. First, Cst. Bravener told the accused that he might not be charged if he told him his side of the story. It was Cst. Bravener’s testimony that he realized as he was saying this that it might be construed as an inducement and so he attempted to soften it.

[17] Second, Cst. Bravener said that it would mean a lot more to a judge if the accused told his story now, it being his first opportunity. On the witness stand, Cst. Bravener conceded that this was false and he said it to get the accused to talk.

[18] This is the section of transcript in which these inducements were made:

OFFICER: …but right now its leading towards J… M: Okay. OFFICER: …sexually assaulting [JB] M: Okay. OFFICER: And if, if that’s all I get and I don’t hear anything from you pointing it away from you… M: Mm-hmm. OFFICER: … then you walk out of here with the court papers and court date. M: But I’m already gonna do that. OFFICER: Um, that’s rarely set in stone. M: Then why am I arrested? Why wouldn’t you guys just talk 18:57 to me in a room? OFFICER: ‘Cause I believe her. M: Exactly, so I’m going to have a court date. OFFICER: The way we’re going now, yeah. OFFICER: I did not touch her, there’s no way, I-, or maybe if you said, 18:58 yeah, it was like I suggested let’s fool around earlier and she was … M: Mm-hmm. OFFICER: … not into it and so I just-, I’m not touching her. M: Mm-hmm. OFFICER: We went for bubble tea and then went home. M: Mm-hmm. OFFICER: That would be different. M: Yeah. OFFICER: But you can’t tell me that. M: It’s not that I can’t OFFICER: You can’t because that’s not what happened M: How is that? OFFICER: Then why can’t you? M: Because what I tell you is not making any difference. OFFICER: It’s not? M: No. OFFICER: If you told me all that, a story like that, and don’t get me wrong, I’m not calling it a story, if that’s the-, your version of the truth… M: Mm-hmm. OFFICER: … and you tell me that, you might walk outta here still with a court date. M: Mm-hmm. OFFICER: But it’s gonna be-, this statement’s recorded, it may be used in court… M: Mm-hmm. OFFICER: …and it’s-, to me, anyway, maybe it’s different in the court’s eyes… 18:59 M: Mm-hmm. OFFICER: …but when a, a guy sits in here and right away when he gets confronted about something… M: Yeah OFFICER: … and tells the truth then, to me that means a lot more than a year from now… M: Mm-hmm. OFFICER: …when your lawyer presents… M: Yeah. OFFICER: …that story. M: Oh, of course. OFFICER: Right? M: Yeah. OFFICER: And I would think it means more to a judge too. M: Mm-hmm. OFFICER: When a guy sits here and said, no way, I did not fucking… M: Yeah. OFFICER: …sexually assault her. M: Yeah. OFFICER: We went for bubble tea, but I did not touch her. You know what I mean? M: Yeah, I know what you mean. OFFICER: Okay? M: Yeah OFFICER: So I can’t promise you… M: Mm-hmm. OFFICER: …whether you’re gonna get charged or not. M: Okay. OFFICER: I can’t say J., tell me exactly what happened and then you won’t get charged. I’m not allowed to do that by law. M: But that’d be lying. OFFICER: No, not always. M: No? OFFICER: This is the sticking point. (Shows photo of snapchat allegedly between M. and complainant) M: Okay. OFFICER: This is an issue for you. (Emphasis Added)

ANALYSIS

Understanding Oickle’s Approach to Inducements

[19] Any approach to a confessionary statement in Canada must begin with the leading case of R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. The two impugned statements by the police officer in this case are threats or promises in the traditional Ibrahim sense. There is nothing in Oickle which changes this.

[20] Perhaps the most commonly quoted passage from Oickle concerning inducements appears in Justice Iacobucci’s judgment under the “Threats and Promises” heading at para. 57,

[Police conduct] becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.

The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.

[21] The Latin phrase “quid pro quo” means literally something for something. It refers to an exchange or trade. I believe Justice Iacobucci in the sentence above was simply reiterating what has been the law since Ibrahim. The traditional form of the confessions rule is premised on inducements made by the police in return for a statement. An inducement will always be in the form of a quid pro quo tendered by the police.

[22] The Supreme Court of Canada recognized that the quid pro quo formulation was a precondition but nothing more in the decision in R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500. The substance, not the form, is what admissibility will stand or fall on. Justice Deschamps for the majority said,

15 … while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement.

19 … what occupies “centre stage” is not the quid pro quo, but voluntariness — it is the overarching subject of the inquiry, and this should not be lost in the analysis. As discussed above, while a quid pro quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry into voluntariness.

[23] A quid pro quo is a necessary but not sufficient component of an attack on voluntariness premised on inducements. It is the strength of the inducement which is pivotal.

[24] Counsel for the Crown relied heavily upon the Oickle test of “whether the will of the subject has been overborne.” It was her contention that the test had not been satisfied on this record. It is true that this phrase brings to mind a forceful psychological overpowering of the suspect. However, we know from the case law developed over a period of more than a hundred years that the confessions rule extends well beyond this.

[25] The overbearing of the suspect’s will formulation has come under academic criticism: “The Confessions Rule and the Charter” Professor Hamish Stewart, (2009) 54 McGill L.J. 517 at pp. 538-540.

[26] I believe that Justice Iacobucci was simply establishing a normative standard when he referred to the overbearing of a suspect’s will. While taken literally and without reference to the context, the formulation appears to cast threats and promises narrowly, it would be a mistake to confine the judgment in Oickle in this way. This is apparent from subsequent passages in Justice Iacobucci’s judgment and the wealth of other jurisprudence on threats and promises.

[27] Justice Iacobucci, after the passage above considering threats and promises, goes on to explore oppression, operating mind and police trickery. In the summary of the four areas, he states,

69 The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.’s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness “that focuses on the protection of the accused’s rights and fairness in the criminal process”: J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339.. …

[28] Justice Iacobucci then continued on to conclude at paragraph 70, quoting and referring to Wigmore and R. v. Hebert, [1990] 2 S.C.R. 151, 77 C.R. (3d) 145 that voluntariness was a shorthand for a “complex of values” including reliability of the confession, individual freedom and the principle that the police should obey the law while enforcing the law.

[29] The complex of values concept demonstrates that the approach to threats and promises must be expansive. A broad approach also follows from the root of the voluntariness rule lying in the right against self-incrimination and the right to silence: R. v. P. (M.B.), [1994] 1 S.C.R. 555 at paras. 37-39; R. v. Hebert, supra; R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519.

[30] In R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 this was put succinctly by Justice Charron at para. 37:

[V]oluntariness, as it is understood today, requires that the court scrutinize whether the accused was denied his or her right to silence. The right to silence is defined in accordance with constitutional principles.

[31] The right to silence is co-extensive with voluntariness. In Singh, supra Justice Charron made a distinction between legitimate persuasion and an improper attack on the right to silence:

47 First, the use of legitimate means of persuasion is indeed permitted under the present rule — it was expressly endorsed by this Court in Hebert …. Second, the law as it stands does not permit the police to ignore the detainee’s freedom to choose whether to speak or not [persistence by the police may demonstrate that the accused did not speak of his own free will]

[32] I would describe the issue raised in this case as a question of whether the accused was unfairly compelled to surrender the right to silence as a result of false information provided by the officer pertaining to the prosecution. The accused’s will, manifested on two occasions in the statement, was to remain silent. I do not think the accused’s argument is that his will was “overborne” by the police conduct. Manipulated might be closer to the mark. But I have no doubt that Justice Iacobucci in Oickle never meant the overbearing of the will phrase to be strictly construed or to be the only means by which threats and promises can lead to involuntary statements.

The Inducement That If He Told His Side of the Story He Might Not Be Charged.

[33] The most telling argument against a restrictive approach to inducements of the kind offered here is found in Oickle itself. Justice Iacobucci considered the effect of a promise of a reduced charge or leniency if the suspect is willing to talk to the police. Justice Iacobucci did not use the “overbearing of the will of the suspect” concept when he discussed this type of inducement. He said,

49 As noted above, in Ibrahim the Privy Council ruled that statements would be inadmissible if they were the result of “fear of prejudice or hope of advantage”. The classic” hope of advantage” is the prospect of leniency from the courts. It is improper for a person in authority to suggest to a suspect that he or she will take steps to procure a reduced charge or sentence if the suspect confesses. Therefore in Nugent, supra, the court excluded the statement of a suspect who was told that if he confessed, the charge could be reduced from murder to manslaughter. See also R. v. Kalashnikoff (1981), 57 C.C.C. (2d) 481 (B.C. C.A.); R. v. Lazure (1959), 126 C.C.C. 331 (Ont. C.A.); R. Marin, Admissibility of Statements (9th ed. (loose-leaf)), at p. 1-15 … In these circumstances, holding out the possibility of a reduced charge or sentence in exchange for a confession would raise a reasonable doubt as to the voluntariness of any ensuing confession. An explicit offer by the police to procure lenient treatment in return for a confession is clearly a very strong inducement, and will warrant exclusion in all but exceptional circumstances.

(Emphasis Added)

[34] An arrestee’s uppermost concerns are: first, will I be detained in custody and not get bail?; and second, will I be prosecuted for the accusation and face the drastic consequences of stigmatization and jail?

[35] The prospect that a detainee could talk his way out of a charge and the ensuing prosecution must be sweet music to his ears. It is hard to imagine a more tantalizing offer for the police to dangle in front of the accused. And it is clearly improper particularly, as here, where the offer was manifestly false: see R. v. Dupuis, 2014 ONSC 2751, 11 C.R. (7th) 278 at paras. 76; R. v. Alexis, 2002 BCCA 103 (2002), 163 C.C.C. (3d) 387.

[36] In this instance, the police officer testified that he was simply interested in the accused’s side of the story. However, Crown counsel agreed that the officer’s primary objective was to build a case against the accused.

[37] The case law makes an important distinction between the police telling an accused accurate and factual information and the police lying in order to induce a statement. Accurate information, while it may be an inducement, is not improper and cannot render a statement involuntary: R. v. Fernandes, 2016 ONCA 772, 343 C.C.C. (3d) 29 at para. 30; R. v. Backhouse, (2005), 195 O.A.C. 80 (Ont. C.A.) at para. 121; R. v. Teske, (2005), 202 O.A.C. 239 (Ont. C.A.) at para. 77. This distinction between the treatment of true and false information is derived from the fairness concerns which motivate the voluntariness rule.

[38] Looking at the issue before me, the chance there would be no prosecution against the accused was slim to none. No alibi could have been asserted by the accused as he was given no timeline for the allegations themselves. It is difficult to hypothesize anything he could have said or done which would have halted the momentum of this investigation and prosecution. The complainant had made a serious allegation of a sexual crime against him and short of him having hard proof of her admitting its falsity, he was going to be prosecuted. Any other scenario is unrealistic.

[39] Cst. Bravener qualified the benefit of no charges and no prosecution by saying that the law prohibited him from promising that if the accused told him exactly what happened, he would not be charged. Put in this stark way, it nonetheless left lingering in the air the prospect that the accused could still talk his way out of charges. The implication was that although the officer could not promise there would be no charges, it might nonetheless come to pass if the accused talked. Furthermore, it was a step in the wrong direction when, after the accused interjected that such a promise to him of no charges would be a lie, the officer said it would not always be a lie.

[40] As unrealistic as it is, having offered a strong inducement, the officer was obligated to come clean at this point. The genie could not be put all the way back into the bottle otherwise. The way it was left, the prospect remained that, depending on what the accused said, he might escape prosecution. Ibrahim referred to a “hope of advantage” for good reason. The mere hope of not being prosecuted, while obviously not as powerful as an iron clad promise, is very seductive to a desperate accused person just arrested for a serious crime.

[41] The accused had expressed in the interview that he did not think that anything he said would make a difference: that is, he would still be prosecuted and what he said would not alter the course of the prosecution. He was correct at the time and this has only been confirmed by subsequent events. Cst. Bravener corrected the accused in the interview, telling him that he could potentially halt the prosecution at this early stage. This was an improper inducement. A reasonable person in the accused’s shoes would feel that they would have a chance of avoiding prosecution if they spoke and gave an exculpatory statement, as the accused did.

The Threat That Speaking Now Would Carry More Weight Than At Any Time In The Future

[42] The suggestion that making a statement would be beneficial to the accused’s legal interests and the converse, that refraining from speaking could jeopardize his position, is a threat. I refer again to Justice Iacobucci in Oickle:

53 … challenging judicially, are the more subtle, veiled threats that can be used against suspects. The Honourable Fred Kaufman, in the third edition of The Admissibility of Confessions (1979), at p. 230, provides a useful starting point:

Threats come in all shapes and sizes. Among the most common are words to the effect that “it would be better” to tell, implying thereby that dire consequences might flow from a refusal to talk. Maule J. recognized this fact, and said that “there can be no doubt that such words, if spoken by a competent person, have been held to exclude a confession at least 500 times” (R. v. Garner (1848), 3 Cox C.C. 175 at p. 177).

Courts have accordingly excluded confessions made in response to police suggestions that it would be better if they confessed. See R. v. Desmeules, [1971] R.L. 505 (Que. C.S.P.); R. v. Comeau (1961), 131 C.C.C. 139 (N.S. S.C.); Lazure, supra, R. v. Hanlon (1958), 28 C.R. 398 (Nfld. C.A.) at p. 401; White, supra, at p. 129.

55… I agree that “it would be better” comments require exclusion only where the circumstances reveal an implicit threat or promise.

[43] The officer admitted to lying when he warned the accused that immediately providing his story would be of more weight. And it was. Several years ago, a judicial road was cleared to admit an accused’s spontaneous prior consistent statement to the police upon first being confronted with the allegation. The statement is not admissible for its truth but only on the issue of the accused’s credibility: R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 16 at para. 72 per Sharpe J.A.

[44] The officer went much further than this and essentially told the accused that if he did not talk now, anything he said in the future, including before a judge at trial, would be of diminished impact and weight.

[45] The transcript I have quoted above demonstrates how forcefully the officer came across in the interview. He mimicked what an accused would say asserting his innocence, throwing in an expletive for emphasis. The DVD shows that the officer raised his voice and slammed his hand down on the desk to make the point. This was bound to make an impression on the accused.

[46] My colleague Justice Hill dealt with a similar situation a number of years ago in R. v. Van Wyk, [1999] O.J. No. 3515 (S.C.), appeal against conviction dismissed on other grounds: R. v. Van Wyk, [2002] O.J. No. 3144 (C.A.). I agree with his analysis and conclusion:

160 Of …serious concern are a variety of related stratagems utilized to dissuade the prisoner from declining to speak further:

(1) references to "this is your opportunity" to tell your story, (2) statements to the effect that "your credibility is at its highest" ... "now", (3) the assertion that the accused would not be as credible ten months down the road at trial when he had "spoken to lawyers", (4) the indication that a failure to speak to the police would result in the trial court seeing a videotape where the accused could be seen stating that he "didn't want to talk" and "didn't want to say anything", (5) the suggestion that the court system will not punish an accused, or as much, when he admits his guilt to the police.

161 The result of these suggestions by the police, whether or not genuinely believed to be accurate by the interviewers, was to mislead Mr. Van Wyk as to the state of the law. As a general rule, the police will always be on dangerous ground in purporting to provide legal advice as a persuasive means of leveraging a prisoner to refrain from remaining silent.

162 The references to "this" being the accused's opportunity to provide his version of events was legally incorrect as Mr. Van Wyk could at any time provide an account to the police or await an opportunity to testify at trial. Unlike the situation in Regina v. Mayo, supra, where the appellant unsuccessfully criticized the police use of the words, "This is your opportunity ...", not only was Mr. Van Wyk not told he was to be released irrespective of whether he gave a statement, he was also subjected to accompanying entreaties designed to leave the impression that it was to his legal advantage to give up his right to remain silent.

163 The suggestion that an accused person's credibility is highest immediately after arrest, in a police interview, is legally incorrect. As observed by Lamer C.J.C. in The Queen v. B.(K.G.) (1993), 79 C.C.C. (3d) 257 (S.C.C.) at 276: "It is clear that statements are neither more nor less likely to be true based solely on a consideration of when they were made".

165 The police view that Mr. Van Wyk's exercise of his right to remain silent would result in a negative inference being drawn against him at trial is legally incorrect. The prosecution would not be entitled to have admitted at trial a videotape of the accused stating that he had nothing to say. The police suggestion to the contrary set an unfair trap which compromised the accused's right to silence and the right to be presumed innocent protected by s. 11(d) of the Charter: Hebert v. The Queen, supra at 11 per Sopinka J.; The Queen v. Noble (1997), 114 C.C.C. (3d) 385 (S.C.C.) at 414-419 per Sopinka J.; Chambers v. The Queen (1990), 59 C.C.C. (3d) 321 (S.C.C.) at 340-342 per Cory J. Cory J. aptly captured the nub of the issue at page 341 of the Chambers case: It has as well been recognized that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer's question but none the less put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt.

[47] Further support is found in R v. Tessier, 2001 NBCA 34, 153 C.C.C. (3d) 361 where the trial judge had excluded a statement because, amongst other things, the police had suggested that despite being charged with murder, manslaughter was a potential option with a much lower sentence than murder. The trial judge also found that it was an improper inducement to tell the accused that it was dangerous to remain silent as the jury at trial might draw an adverse inference: see paras. 43-44. A dissent in the Court of Appeal supporting the trial judge’s decision was upheld by the Supreme Court: R. v. Tessier, 2002 SCC 6, [2002] 1 S.C.R. 144.

[48] Like the inducement suggesting that the prosecution could be forestalled by the accused giving his version of events, what the officer said was a direct assault on the right to silence using deliberately erroneous legal information. The officer knew the accused intended to remain silent because he had said so on two occasions. In order to defeat this resolve, the officer impressed on the accused—falsely--that silence was against his interest in successfully defending the accusations against him.

[49] Both the inducements Constable Bravener used concerned the machinery of the prosecution against the accused. Anyone without in-depth knowledge of the criminal justice system would have believed the officer’s falsehoods, clearly a person with knowledge and control over the case against the accused. He was a person in authority, synonymous in a reasonable accused’s mind with the prosecutor.

[50] The accused in his evidence said, in essence, that he believed what the officer was saying. The inducements went to the heart of what a detainee is necessarily most concerned and anxious about: his liberty, both in the short term (bail) and in the long term (trial). They were designed and had the effect of impacting the accused at his most vulnerable.

Did The Inducements Lead To The Accused’s Statement?

[51] Ms. Hackett for the Crown argues that the police inducements did not prompt the accused to talk to the police. Rather, almost immediately following the inducements, it was the presentation by the police officer of the Snapchats purportedly between the accused and the complainant which convinced the accused to open up to the police and respond to the serious allegations against him.

[52] It is true that it was only after the Snapchats were presented that the accused started talking. In Oickle, it was emphasized that the approach must be contextual and that there must be a causal connection between the inducements and the statement: see paras. 54-55, 84; also see R. v. Fernandes at paras. 26-30; R. v. Coaster, 2014 MBCA 108, 317 C.C.C. (3d) 339 at paras. 27-30. If the accused wanted to give his version willy nilly or, for example, if he was immune to inducements because of his experience in the system, there may be a lack of connection between the inducements and the statement. Voluntariness will not be compromised.

[53] The Crown has an uphill battle on this record. While the inducements may not have been the proximate cause of the relinquishment of the right to silence—a fact I am far from convinced of--they need not be. First, the onus is on the Crown. After improper inducements are demonstrated, in order to satisfy their onus, the Crown must demonstrate the inducements were not operative on the accused’s mind. As a practical matter, by reason of their onus, the Crown must generally disprove causation.

[54] Second, the inducements need not be the only cause of the statement. It is sufficient if they contribute to the statement being made. This is a causation requirement commonly used in the criminal law: Smithers v. The Queen, [1978] 1 S.C.R. 506, at p. 519, R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 71, R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at paras. 15-17. Given the values at stake, there is no reason why it ought not to be applicable in the voluntariness context.

[55] Here, the accused did not appear experienced in the system. While he was not a pushover nor was he a match for a police officer who was in a position of control and authority over his liberty. The police officer was in possession of critical legal knowledge which the accused was not. The accused testified that he did not know that the officer was misrepresenting the prospect he might not be prosecuted or that he was lying about the critical importance of giving an early statement.

[56] It is also of some importance that in the passage referred to by the Crown, the accused denied the Snapchats were authored by him. The Snapchats even if they were his, were exculpatory. While it is possible that something in this part of the interview led the accused to start opening up to Cst. Bravener, no substantial stimulus was apparent. However, the fact remains that the point at which the accused started talking was only a few pages removed from the two inducements.

[57] As I have said, the inducements were significant in themselves and were even more powerful taken together. Neither were the type to dissipate during the course of the interview. A reasonable person in the accused’s shoes would be significantly influenced by both the promise and the threat held out.

[58] In the result, I find that the statement has not been proved voluntary beyond a reasonable doubt. It is inadmissible in evidence.

D. E. Harris, J.

Released: December 6, 2017

COURT FILE NO.: CrimJ(P)1805/16 DATE: 2017 12 06 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – J.M. RULING D.E. Harris, J. Released: December 6, 2017