CITATION: R. v. Sobaram, 2017 ONSC 976

COURT FILE NO.: Crim J(P) 2621/12

DATE: 20170209

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN

v.

SHANE O’NEAL SOBARAM

BEFORE: Ricchetti, J.

COUNSEL: S. Caponecchia, Counsel for the Crown

M. Salih, Counsel for the Defendant

PRE-TRIAL APPLICATIONS HEARD: January 24 and 26, 2017

PRE-TRIAL AND MID-TRIAL RULINGS

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.

Pursuant to s. 486.4 of the Criminal Code no information that could identify the accused, complainant or a witness shall be published in any document or broadcast or transmitted in any way.

THE PRE-TRIAL APPLICATIONS. 2

1. MR. SOBARAM'S POLICE STATEMENT (November 18, 2011) 2

The Facts. 3

The Law.. 5

Voluntariness. 5

Section 10(b) of the Charter 6

Discussion of the Evidence and Issues raised by the Defence. 7

Voluntariness. 10

Charter 10

2. THE OCTOBER 26, 2011 STATEMENT. 12

The Facts. 12

Voluntariness. 13

Charter 14

3. THE OCTOBER 28, 2011 STATEMENT. 15

The Facts. 15

Voluntariness. 16

Charter 17

4. REDACTING PORTIONS OF MR. SOBARAM'S POLICE INTERVIEW... 18

5. REDACTING PORTIONS OF THE COMPLAINANT'S POLICE INTERVIEW... 18

MID-TRIAL RULINGS. 19

1. Recent Fabrication. 19

Background. 19

a) Evidence of C.C. 21

b) Evidence of C.R. 22

c) Officer Hesson's evidence as to what the complainant told him.. 23

d) Officer Hesson’s evidence as to what Katie told him.. 24

THE PRE-TRIAL APPLICATIONS

[1] A number of pre-trial applications were heard. At the conclusion of each pre-trial application, this court advised counsel of its ruling and that written reasons would be released at a later date. These are those reasons.

1. MR. SOBARAM'S POLICE STATEMENT (November 18, 2011)

[2] On November 18, 2011, Mr. Sobaram was arrested. Mr. Sobaram was interview by the police that evening. The police interview was video recorded.

[3] The Crown seeks a ruling that Mr. Sobaram's statements to the police during the police interview were voluntary.

[4] The Defence seeks to exclude Mr. Sobaram's statements to the police on the basis that Mr. Sobaram's s. 10(b) Charter rights were violated.

[5] Counsel agreed to proceed to hear these two applications in a blended manner. The following evidence was heard on this voir dire:

a) Acting Staff Sgt. Lisa Hewison (in charge of detained persons received at 21 Division);

b) Officer Jaspreet Sandhu (Front Desk/Cells Officer);

c) Officer Jason Unsworth (police interview/video recorder operator);

d) Officer Donovan Irving (provided grounds for arrest);

e) Officer Michael McKenzie (Officer in Charge/police interviewer); and

f) Shane Sobaram.

The Facts

[6] On November 18, 2011 Officer McKenzie arrested Mr. Sobaram for sexual interference at approximately 3:22 p.m. After a pat-down for officer safety, Officer Unsworth placed Mr. Sobaram in his vehicle.

[7] Mr. Sobaram asked what he had been charged with. Officer Unsworth repeated that Mr. Sobaram had been arrested for sexual interference and explained what that meant. Officer Unsworth proceeded to read, from a pre-printed card he carried, Mr. Sobaram’s Charter Rights and Caution. In his notebook, Officer Unsworth recorded, each question of the Charter Rights and Caution he provided to Mr. Sorbaram but in a paraphrased manner beside which Officer Unsworth recorded Mr. Sobaram's answers. Mr. Sobaram said that he understood what had been explained to him regarding his rights and caution.

[8] At the end of reading Mr. Sobaram’s Charter rights, Officer Unsworth asked Mr. Sobaram whether he wished to call a lawyer “now”. Officer Unsworth recorded Mr. Sobaram's response as - no, I don't need one - but acknowledged this was not a quote.

[9] This court is satisfied that Officer Unsworth fully and completely provided Mr. Sobaram with his rights to counsel and caution including:

a) Mr. Sobaram had the right to retain and instruct counsel without delay;

b) Mr. Sobaram had the right to call any lawyer he wished without delay;

c) Mr. Sobaram had the right to free advice from a Legal Aid lawyer with a telephone number (which was read) for duty counsel for free legal assistance;

d) Mr. Sobaram was not obliged to say anything to the police unless he wished to do so; and

e) That anything Mr. Sobaram said to the police might be given in evidence.

[10] Mr. Sobaram understood his Charter Rights and Caution.

[11] Mr. Sobaram clearly and expressly waived his right to contact a lawyer at that time.

[12] Prior to the caution, Mr. Sobaram asked whether he was going to be released that day. Officer Unsworth told him he would “likely” be released on a Promise to Appear with a condition that he have no contact with the complainant.

[13] Mr. Sobaram was taken to 21 Division. After an approximately 15 minute wait, Mr. Sobaram was brought into the booking area. Mr. Sobaram was placed in the cells at 4:11 p.m. There was no questioning by the police nor any statements made by Mr. Sobaram significant to the investigation during this period of time.

[14] At 4:52 p.m. Officer Unsworth delivered to Mr. Sobaram a SOIRA notice. Mr. Sobaram declined to sign a receipt of the notice.

[15] As all interview rooms were occupied, Mr. Sobaram was taken into a room not normally used for interviewing. However, the officers obtained portable video recording equipment and recorded the entire interaction during the interview.

[16] At the commencement of the police interview, Mr. Sobaram confirmed that he knew he was under arrest for sexual interference and had been read his rights to counsel and caution. Mr. Sobaram also confirmed that anything he said could be used against him. After that, the following exchange took place:

McKenzie: You have a right to contact a lawyer if you wish to seek legal advice.

Sobaram: Okay

McKenzie: Okay, my understanding is that right now you said that you...

Sobaram: No, I don't

McKenzie: ...don't want to do that?

Sobaram: No

McKenzie: It's my intention to release you with a court date from here.

Sobaram: Okay

McKenzie: But I wanted an opportunity to speak with you first.

Sorbaram: Okay

[17] The entire police interview took 15 minutes.

[18] Throughout Mr. Sobaram appeared to understand what was going on, was cooperative and there were no signs of any impairment.

[19] The evidence discloses that at no time prior to the video recorded interview did the police ask Mr. Sobaram questions about the investigation nor did Mr. Sobaram volunteer any statement relevant to the investigation. There were no threats, inducements or oppression by any police officers. Mr. Sobaram was treated respectfully by all police officers.

[20] At approximately 5:55 p.m., Mr. Sobaram was released on a Promise to Appear with a condition not to contact the complainant.

The Law

Voluntariness

[21] There is no serious dispute regarding the applicable law on either application.

[22] The seminal decision and leading authority from the Supreme Court of Canada on voluntariness is R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38. The Supreme Court stated at paragraphs 70 and 71:

70 Wigmore perhaps summed up the point best when he said that voluntariness is “shorthand for a complex of values”: Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, § 826, at p. 351. I also agree with Warren C.J. of the United States Supreme Court, who made a similar point in Blackburn v. Alabama, 361 U.S. 199 (1960), at p. 207:

[N]either the likelihood that the confession is untrue nor the preservation of the individual’s freedom of will is the sole interest at stake. As we said just last Term, “The abhorrence of society to the use of involuntary confessions . . . also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” . . . Thus a complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by each in any situation varies according to the particular circumstances of the case.

See Hebert, supra. While the “complex of values” relevant to voluntariness in Canada is obviously not identical to that in the United States, I agree with Warren C.J. that “voluntariness” is a useful term to describe the various rationales underlying the confessions rule that I have addressed above.

71 Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an “inducement” as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one’s nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, supra. On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for “some palpable and overriding error which affected [the trial judge’s] assessment of the facts”: Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254, at p. 279 (quoting Stein v. The Ship “Kathy K”, 1975 CanLII 146 (SCC), [1976] 2 S.C.R. 802, at p. 808) (emphasis in Schwartz).

[23] The Supreme Court in Oickle stated that a statement by an accused person may be found to be inadmissible on the basis of several factors, including:

(i) threats, promises and/or inducements by the police to the accused;

(ii) oppression or abusive conduct by the police towards the accused;

(iii) the lack of an operating mind on the part of the accused; and/or

(iv) improper police trickery.

[24] Ultimately, it is the reliability of the accused's statement that is at the heart of the voluntariness rule.

Section 10(b) of the Charter

[25] Section 10(b) of the Charter provides:

10. Everyone has the right on arrest or detention

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

[26] There is an informational component – advising the accused of his right to counsel. However, this is followed by the implementation component, namely the duty on the police to provide the accused with a reasonable opportunity to consult counsel and to hold off seeking to obtain evidence from the accused until that opportunity has been provided. See: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233.

[27] The purpose of this Charter right is to ensure that the accused’s choice whether to speak with the police is both free and informed before answering any questions which might be incriminating. R. v. Sinclair, 2010 SCC 35 at paras. 25 and 26.

[28] While the Defence referred to a number of authorities, the Defence admitted that the factual circumstances of the authorities were significantly different that the circumstances in this case.

Discussion of the Evidence and Issues raised by the Defence

[29] The Defence submits that the court should consider the fact there is an incomplete recording of all other possible interactions between all police officers (including unidentified officers who may have spoken to Mr. Sobaram in the cells or the logging room). The suggestion that there are other possible relevant interactions between Mr. Sobaram and any other police officer is utter speculation. Mr. Sobaram, in his testimony, did not refer to any other communication or interaction with any other police officer which could possibly have any bearing on the issue of voluntariness. This submission has no merit.

[30] The Defence submitted that Mr. Sobaram was unsophisticated and did not appreciate what was going on during his arrest and interview. This court finds otherwise. Mr. Sobaram was clear, coherent, and responsive to the questions of the police officers. Mr. Sobaram was capable of understanding, deciding whether to answer questions and execute his free will. It was clear that when Mr. Sobaram disagreed with the police officers, he was capable of doing so and did so. For example, Mr. Sobaram did not wish to sign the receipt of the SOIRA notice and refused to do so. Further, when questioned about sexual intercourse with the complainant, Mr. Sobaram vigorously denied he had engaged in sexual intercourse. It should also be noted that Mr. Sobaram had, on three or four prior occasions to this arrest, been arrested by the police. This was not a situation where the person detained found themselves in a unique and unknown situation.

[31] The Defence asks this court to reject Officer Unsworth's evidence that he had read Mr. Sobaram’s "Charter of Rights" and "Caution to Charged Person" from a pre-printed card. Instead, the Defence submits that this court accept Mr. Sobaram's evidence that Officer Unsworth did not read from a pre-printed card. This court accepts Officer Unsworth's evidence on this point. Officer Unsworth's evidence on this point, despite extensive cross-examination, was unshaken and entirely consistent with his memory and notes. On the other hand, Mr. Sobaram's evidence was inconsistent and contradictory. At one point Mr. Sobaram testified he was shocked, nervous, and uncertain as to what was happening. But, on the other hand, Mr. Sobaram testified he was absolutely certain that Officer Unsworth didn't read from a card.

[32] Mr. Sobaram testified that when asked whether he wanted to call a lawyer, he responded "No, not now". This court rejects this evidence. It is highly unlikely that Mr. Sobaram would recall his exact words that night. However, even if this evidence had been accepted, it would have made no difference to the result in this application. Essentially, Mr. Sobaram said he understood this right and declined to speak with a lawyer at that time. Mr. Sobaram testified that he knew he was free to change his mind about calling a lawyer later. He never subsequently told the police that he had changed his mind or wanted to speak with a lawyer. In fact, the opposite is true. Mr. Sobaram, at the beginning of the videotaped interview, confirmed that he didn't want to call a lawyer. He said no - twice.

[33] Mr. Sobaram testified that he didn't want to call a lawyer because he didn't have privacy when asked in the back of the cruiser. This court doesn't accept this evidence. At no time did Mr. Sobaram ever raise with the officer that, if he had privacy, he would call a lawyer. Quite frankly, this appears to be nothing more than an attempt, five years later, by Mr. Sobaram to fabricate some plausible basis for his decision not to speak with a lawyer when given the opportunity. This court also notes that during the video recorded interview, again Mr. Sobaram said that he didn't want to speak with a lawyer, had no questions for the officer and did not raise any question of privacy. This is not a situation where the evidence discloses that the officers, through their conduct, words or circumstances, explicitly or implicitly conveyed to Mr. Sobaram that if he exercised his rights to counsel he would not have any privacy during the call. Even if this court were to accept that Mr. Sobaram "believed" that he would not have privacy during a call with a lawyer, this was an unreasonable belief held by Mr. Sobaram and was not caused or contributed by any actions or words of the police officers. The Defence suggests this court should read into Mr. Sobaram's statement to the police (near the end of the interview) that he had a lawyer, as some indication that Mr. Sobaram didn't believe he could contact him. This court is not prepared to speculate why Mr. Sobaram didn't ask to contact his lawyer in light of his clear and repeated statements that he didn't want to speak with a lawyer.

[34] Mr. Sobaram testified that he believed he wouldn't be released until after he answered the police questions. While this evidence lacks considerable credibility or reliability, whether Mr. Sobaram believed this or not, is not the issue. At no time did the police say this to Mr. Sobaram or do anything to implicitly cause or contribute to this belief. In fact, immediately upon his arrest, Officer Unsworth told Mr. Sobaram that he was "likely" to be released that day. Again, at the videotaped interview, at the very outset before questioning, Officer McKenzie told Mr. Sobaram that it was his intention to release him that evening. When told he was going to be released but the police wanted to speak with him first, Mr. Sobaram's response was "Okay". If Mr. Sobaram had such a belief (which I do not find) it was unreasonably held and, more importantly, it was not the result of something said or done by the police officers. In conclusion, at no time did the police officers tie Mr. Sobaram's release with Mr. Sobaram answering any questions of the police - there was no quid pro quo!

[35] Much of the Defence position was that the police officers should have gone to further explain Mr. Sobaram's Charter Rights and Caution. This submission has no merit. Mr. Sobaram said that he understood his Charter Rights and Caution. Even his own testimony confirmed this. In light of this, it is hard to fault or criticize the police officers for not going further to explain his rights and caution. Besides, Mr. Sobaram's evidence is not believable. For example, when he testified that he didn't know who or what duty counsel was, makes no sense given that this was his fourth or fifth arrest and the clear evidence of Officer Unsworth that Mr. Sobaram stated he understood this specific right when it was read to Mr. Sobaram. Another example is Mr. Sobaram's testimony that he didn't realize he could remain silent, despite the fact he told Officer Unsworth that he understood he "was not obliged to say anything". Mr. Sobaram's evidence is self-serving and created for self-interest rather than an accurate depiction of what he understood or believed at the time of his arrest and shortly afterwards.

[36] The Defence refers to the fact that the Secondary Caution was given after the interview had commenced. This court agrees that it would have been better for the officer to have given the Secondary Caution at the commencement of the interview. However, there is no evidence that any other police officer or person in authority did, said or had an opportunity to induce or threaten Mr. Sobaram to make any statements to the police prior to the police interview. Mr. Sobaram, who testified, didn't suggest that he had any other encounter with a person in authority or that any such other person made any inducement or threat to speak to the police during the interview. In these circumstances, the delay in providing a Secondary Caution in the latter part of the videotaped interview was of no consequence.

Voluntariness

[37] The onus is on the Crown to establish voluntariness beyond a reasonable doubt. In R. v. Papadopoulos, [2006] O.J. No. 5423 (S.C.) at para. 8, Justice Dawson succinctly summarized the general legal principles on a voluntariness voir dire as follows:

With respect to voluntariness, the burden of proof is upon the Crown beyond a reasonable doubt. The governing legal principles are reviewed in R. v.Oickle, 2000 SCC 38, [2002] 2 S.C.R. 3, 147 C.C.C. (3d) 321. In order to determine whether voluntariness has been established I must evaluate all of the circumstances surrounding the making of the statements in question. The issue is to be determined by means of a contextual analysis. If I have a reasonable doubt about whether the accused was induced to speak because of threats, promises or oppression emanating from a person in authority then I must exclude the statement. These factors may operate individually or cumulatively. I must also inquire into whether improper police trickery, as defined in Oickle, is implicated in the making of the statements. I must be satisfied the accused was possessed of an operating mind.

[38] In this case, there was no inducement, no threat, no oppression, and no trickery by or on the part of any of the police officers.

[39] Mr. Sobaram had an operating mind. Mr. Sobaram testified he told the truth, knew he could say no to the police officers at the interview and knew his statements could be used as evidence. There is no doubt as to the reliability of Mr. Sobaram’s statements during the police interview.

[40] This court is satisfied beyond a reasonable doubt that Mr. Sobaram's statements during the November 18, 2011 videotaped statement were voluntary.

Charter

[41] Section 10(b) of the Charter provides:

10. Everyone has the right on arrest or detention

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

[42] The onus is on the Defence to establish a Charter breach on the balance of probabilities.

[43] The Defence submits that Mr. Sobaram didn't understand his s. 10(b) Charter right. The Defence relies on Mr. Sobaram's evidence that he said "no, not now" to Officer Unsworth when asked if he wanted to "call a lawyer now". As set out above, this court does not accept this was Mr. Sobaram's response. Instead, this court accepts that Mr. Sobaram's response was something like - no, I don't need one. Having repeated this position that Mr. Sobaram didn’t want to speak with counsel at the commencement of the videotaped interview, this is sufficient to dispose of this application.

[44] However, Mr. Sobaram testified there were two reasons for his refusal to speak with a lawyer:

• lack of privacy; and

• lack of money to retain counsel.

[45] As for the lack of privacy, this court repeats what it has stated above and rejects this evidence from Mr. Sobaram.

[46] The lack of money to retain counsel is also easily dealt with because Officer Unsworth told Mr. Sobaram that he had the "right to free advice from a Legal Aid lawyer. 1 800-265-0451 is a toll free number that will put you in contact with a Legal Aid Duty Counsel lawyer for free legal assistance. Do you understand?" Mr. Sobaram responded that he understood. It is only now that he first expresses this concern and this court rejects Mr. Sobaram's evidence on this.

[47] The Defence submitted that "someone should have told him something more", is rejected. No doubt, if there are circumstances, where it is clear that a person under arrest does not understand his rights or caution, the police have an obligation to ensure that the rights or caution are reasonably explained and understood. Here there were no such circumstances.

[48] In the circumstances of this case, Mr. Sobaram was provided his Charter Rights and Caution in accordance with law.

[49] There was no breach of Mr. Sobaram's Charter Rights.

[50] Section 24(2) of the Charter provides as follows:

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute

[51] The analysis as to whether evidence should be excluded is the consideration of the following factors set out in R. v. Grant, [2009] S.C.C. 32:

i. The seriousness of the Charter infringing state conduct;

ii. The impact on the Charter interests of the accused; and

iii. Society’s interest in adjudicating a trial on the merits.

[52] The balancing of the above factors in the circumstances of this case and considering the matter as a whole, the statements during the videotaped interview would not have been excluded under s. 24(2) even if there had been a Charter breach.

[53] The Defence Charter application is dismissed.

2. THE OCTOBER 26, 2011 STATEMENT

[54] The Crown seeks a ruling that Mr. Sobaram's statement to Officer Ricci on October 26, 2011, that he was not in a relationship with the complainant but they were just friends, was voluntarily made.

[55] The Defence seeks to exclude a statement made by Mr. Sobaram on October 26, 2011 to the police on the basis of s. 10(b) Charter breach.

[56] The evidence on this voir dire was from Officer Kurtis Ricci.

The Facts

[57] At approximately 10:18 a.m. on October 26, 2011, Officer Ricci received a dispatch regarding a missing juvenile aged 14 years old - the complainant.

[58] Officer Ricci spoke with the missing juvenile's mother. Officer Ricci then spoke with the missing juvenile's foster mother. Both suggested that the complainant might be found at 58 Green Briar Road in Brampton.

[59] Officer Ricci attended at the Green Briar address. After knocking on the door, Officer Ricci was invited into the foyer of the home. Present was the complainant, Mr. Sobaram and Mr. Sobaram's mother. Officer Ricci expressed his concern regarding the age difference between the complainant (14 years old) and Mr. Sobaram (24 years old). Officer Ricci testified he might have stated that, if they were having a relationship, he would arrest Mr. Sobaram.

[60] Officer Ricci was told by Mr. Sobaram's mother and Mr. Sobaram that the complainant and Mr. Sobaram were not boyfriend/girlfriend but just friends.

[61] Officer Ricci repeated that the age difference between Mr. Sobaram and the complainant was not appropriate for a relationship.

[62] Officer Ricci felt there was nothing he could do at the time since there was no evidence before him that there was an intimate relationship between the complainant and Mr. Sobaram. Officer Ricci left the home.

[63] During the period of time that Officer Ricci was at the home, he did not detain Mr. Sobaram.

Voluntariness

[64] This was a very brief encounter. What occurred during the encounter is clear. Officer Ricci was there to find the complainant. He did so. He expressed his concerns regarding a possible relationship between an underage girl and a man ten years her senior. There was no evidence of an offence. There is no evidence he detained anyone. He left the home.

[65] The Defence submits that the entire encounter was not recorded and, therefore, this court cannot be satisfied that the statement was made voluntarily by Mr. Sobaram. The fact that the entire encounter is not audio or video recorded is only one factor to consider in determining the voluntariness of an accused’s statement(s).

[66] Given the circumstances, one would not expect this type of encounter to be audio or video recorded provided there is an accurate, contextual and reliable recording of the events.

[67] There is no evidence of any inducement, threat or oppression which would suggest that a full recording was necessary to determine voluntariness.

[68] This court is not persuaded that the lack of an audio or video recording raises any doubt that Mr. Sobaram's statement was voluntarily made.

[69] The real question for this court to determine is whether, on the evidence before it or lack of evidence, this court is satisfied that the statement made by Mr. Sobaram was voluntarily made which includes consideration of whether the proposed statements attributed to Mr. Sobaram are accurately and reasonably reflected, including their context, so that this evidence is sufficiently reliable to be put before the trier of fact.

[70] In this case, there is no doubt that the statement was voluntarily made by Mr. Sobaram.

[71] There is not even a hint of an inducement, threat, oppression or lack of operating mind.

[72] The Crown's application is granted.

Charter

[73] Clearly, there was no physical detention of Mr. Sobaram.

[74] The Defence submits there was a psychological detention. There is no evidence of such a detention. Mr. Sobaram was in his home. He was with his mother. Nothing was said or done by Officer Ricci to cause a psychological detention. The circumstances do not suggest any psychological detention of Mr. Sobaram.

[75] There is no evidence that Mr. Sobaram felt compelled to remain to listen to what the officer said or to say anything in response. This court is not prepared to speculate that Mr. Sobaram felt compelled to remain or to say anything to the officer.

[76] Absent a detention, Mr. Sobaram's Charter rights were not engaged. Again, this would not be a close call for exclusion under s. 24(2) of the Charter. The circumstances at play would not have resulted in an exclusion order under s. 24(2) of the Charter.

[77] The Defence application is dismissed.

3. THE OCTOBER 28, 2011 STATEMENT

[78] The Crown seeks a ruling that Mr. Sobaram's statement to Officer Hesson on October 28, 2011 that he was not in an intimate relationship with the complainant, but only a friend was voluntarily made.

[79] The Defence seeks to exclude a statement made by Mr. Sobaram on October 26, 2011 to the police on the basis of s. 10(b) Charter breach.

[80] The evidence on this voir dire was from Officer Gavin Hesson and Officer Jake McCracken.

The Facts

[81] On October 28, 2011, the complainant was reported as a missing juvenile. At approximately 10:45 p.m. Officer Hesson responded to a dispatch. Officer Hesson spoke with the complainant's foster mother. It was explained to Officer Hesson that she believed that the complainant might be in an intimate relationship with Mr. Sobaram. She gave Officer Hesson Mr. Sobaram's address.

[82] Officer Hesson went to Mr. Sobaram's home with Officer McCracken. They arrived at approximately 11:58 p.m. A male, identifying himself as JR answered the door. JR told the officers that the complainant had been there but he wasn't sure if she was still there. The officers observed many empty beer bottles on the porch and on the floor in the foyer. Officer Hesson asked for Mr. Sobaram. JR pointed to the couch where a male was laying down, passed out. JR invited the officers into the home.

[83] The officers checked the home. The complainant was located hiding downstairs in the basement. Officer Hesson took the complainant to his vehicle.

[84] Officer Hesson and Officer McCracken returned to the home to speak with Mr. Sobaram. Mr. Sobaram was still passed out on the couch. Officer Hesson attempted to wake up Mr. Sobaram. Mr. Sobaram woke up being irate, screaming, and waving his arms. The two officers held Mr. Sobaram down to calm him down, protect themselves and Mr. Sobaram and to explain to him they were the police. It was clear to the officers that Mr. Sobaram was heavily intoxicated.

[85] Mr. Sobaram's parents came home while the police were holding Mr. Sobaram down on the couch to calm Mr. Sobaram down. The parents told Mr. Sobaram to calm down. Mr. Sobaram calmed down and started to cry.

[86] Officer Hesson explained to the parents he had come to their home to find the complainant. He explained that the complainant was 14 years old. Mr. Sobaram's parents said that Mr. Sobaram and the complainant were just friends. Mr. Sobaram said they were not in an intimate relationship but were just friends.

[87] Someone provided Mr. Sobaram's date of birth but it wasn't clear whether it was Mr. Sobaram or his parents.

[88] The officers left.

Voluntariness

[89] There is no doubt that Mr. Sobaram was heavily intoxicated to the point of having passed out. He was awaken by the police officers.

[90] As a result, his state of mind and ability to appreciate whether to answer any question(s) of the police officers, and the reliability of his statements is highly suspect given his state of heavy intoxication.

[91] The onus is on the Crown to prove beyond a reasonable doubt that the statement of Mr. Sobaram to these officers was voluntarily made. This is a high threshold. This court cannot conclude that the statement by Mr. Sobaram to these officers was voluntarily made.

[92] The Crown application is dismissed.

[93] Since it is unclear whether Mr. Sobaram's birth date was given by him or his parents, that statement shall also be inadmissible.

Charter

[94] Having determined that Mr. Sobaram’s statements are not admissible, the Defence nevertheless sought to exclude all observations made by the police officers on the evening of October 28, 2011.

[95] Essentially, the Defence points to the physical restrain of Mr. Sobaram to allege there was a detention and the officer's failure to comply with the Charter.

[96] It is significant to note that the Defence did NOT challenge the police authority to enter the home based on their reasonable grounds to believe that there was a child in need of protection and the exigent circumstances present at the time. The Defence also did not lead any evidence as to who the owner of the home was or whether JR had authority to let the police officers into the home.

[97] The issue is therefore whether when the police officers returned to speak with Mr. Sobaram and held him down when they tried to awaken him constituted a detention which engaged Mr. Sobaram's Charter rights.

[98] This court concludes that Mr. Sobaram's Charter rights were not engaged. The only reason that the police held Mr. Sobaram down was because he was heavily intoxicated, passed out and when awoken, was not coherent and physical. Their response with minimal physical force was reasonable and appropriate in the circumstances to prevent harm to themselves and Mr. Sobaram and explain who they were. When Mr. Sobaram calmed down when his parents arrived, the police ceased to hold him down.

[99] There was no detention by the police. There was never any intention to detain Mr. Sobaram. They were not there to investigate an offence. They were not there to arrest or question Mr. Sobaram. They were there to tell Mr. Sobaram that the complainant was only 14 years old.

[100] Even if this court had found that there had been a detention, this court would not have excluded the police observations that evening. They were not causally connected to alleged detention. Further, any s. 24(2) analysis would not have resulted in the exclusion of what the police officers saw that evening before attempting to awaken Mr. Sobaram.

[101] The Defence application dismissed.

4. REDACTING PORTIONS OF MR. SOBARAM'S POLICE INTERVIEW

[102] Defence counsel sought the redaction of a portion of Mr. Sobaram's police interview on November 18, 2011 where he refers to already having a lawyer. The Defence was concerned this would suggest that Mr. Sobaram had been involved in prior criminal activity and, thereby, already had a lawyer.

[103] Counsel were able to agree on the portion of the transcript to be redacted.

5. REDACTING PORTIONS OF THE COMPLAINANT'S POLICE INTERVIEW

[104] During her police interview, the complaint told the police that she got "checked out" for sexually transmitted diseases because of unprotected sexual intercourse with Mr. Sobaram.

[105] The Defence objected to this portion of the interview going before the jury on the basis that it was not relevant and highly prejudicial.

[106] The Crown submitted that this reference was admissible as relevant and not prejudicial.

[107] The issue on Count #2 is whether there was sexual intercourse between the complainant and Mr. Sobaram. The complainant alleges that there was and says so in her statement to the police. Mr. Sobaram denies there was sexual intercourse and said so in his statement to the police.

[108] The fact that the complainant told her mother of the unprotected sexual intercourse and was taken for testing of STD at a clinic does not assist the jury in determining the central issue on this count.

[109] Whether the complainant's mother was told or believed there was sexual intercourse is not relevant.

[110] The fact that the complainant went to a clinic for testing of STD's would be oath helping because it would be suggestive to the jury that the complainant would not have done so unless what she said about sexual intercourse was true. There is no other purpose. The rule against oath-helping bars parties in most circumstances from introducing evidence solely to support a witness’s credibility. In R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at p. 729, Iacobucci J. stated the rule in the following manner:

The rule against oath-helping prohibits a party from presenting evidence solely for the purpose of bolstering a witness’ credibility before that witness’ credibility is attacked. This type of evidence is of the sort that would tend to prove the truthfulness of the witness, rather than the truth of the witness' statements.

[111] For these reasons, the introduction of this evidence at this time would lead the jury to impermissible reasoning and therefore, prejudicial.

[112] It may be that other issues arise during the cross-examination of Crown witnesses or Defence evidence that may make this evidence relevant, such as the Defence suggesting recent fabrication of the complainant’s statement she had sexual intercourse. But at this time, the fact that the complainant was taken to be tested for STD's is not relevant and it is prejudicial.

[113] Those portions of the complainant's statement to the police which refers to her attending a clinic to be tested for STD's shall be redacted.

MID-TRIAL RULINGS

1. Recent Fabrication

Background

[114] During the course of the Defence cross-examination, the following exchanges took place:

Q. Okay. But you did give one statement to the police in January of 2012?

A. Yeah.

Q. Okay. And, again, we're going to talk about that in a moment, okay, and why that is? So you knew that Mr. Sobaram had had a baby with another woman?

A. Yeah.

Q. Her name is Taren.

A. Yeah.

Q. Okay. And baby's name is Xavier.

A. Yeah.

Q. Okay. But you have one statement on January 24th 2012?

A. Yes.

Q. Okay. And on that day, you decided you were going to give a statement?

A. Yeah.

Q. Now, whereas you might've had feelings for Mr. Sobaram in the fall of 2011, you no longer had feelings for him in January of 2012?

A. I no longer had feelings for him after everything, November.

Q. Okay.

A. After he got arrested.

Q. And after Mr. Sobaram was arrested, he did not speak with you anymore?

A. No, not really.

Q. Okay. And just before you gave your statement, you found out that he had gotten back together with Taren.

A. Yeah, that was in my statement, but I don't know, I don't know if he actually got back with Taren. That's not the reason why I made a statement. I made a statement, so that everybody would get off my back about making a statement.

A. I only made -- I don't recall saying -- I do recall saying that about Taren. That's why I wrote the statement. That’s not why I wrote the statement. I wrote the statement because to get everybody off my back about writing a statement. I didn't do it out of anger. I didn't do it because I was getting forced. I just did it to get it over with.

MS SAHIL: Q. So you're saying you didn't do it out of anger?

A. No.

Q. Okay.

Q. Okay. And one of the first things you said about the statement was that you made the video out of anger.

A. I said that to them?

Q. Yes, today. Earlier today.

A. Ii didn't make it out of anger. I just made it to get everybody off my back. Yeah, I was angry that I had to make the statement, but I wasn't angry towards Shane.

Q. Okay. Not only had Mr. Sobaram gotten back with Taren in January of 2012 before you gave your statement, but shortly before you gave your statement, Taren had actually dropped off your stuff and picked up Mr. Sobaram's stuff.

A. Yes.

Q. Okay. And you knew at that point that it was really over with yourself and Mr. Sobaram?

A. I knew from when he got arrested it was over between us. I called Taren, so that she could come pick up his stuff.

Q. You also contacted Mr. Sobaram, repeatedly, to get back with him.

A. No.

Q. You're saying you never did that?

A. No.

Q. When you gave your statement to Mr. Sobaram, you also lied about the fact that you and him had sex?

A. When?

Q. Period.

THE COURT: When you gave your statement to Mr. Sobaram and then you trailed off.

MS SAHIL: Q. When you gave your statement to Officer McKenzie, you lied about that?

A. I told him we didn't have sex?

Q. You told him that you had sex, but that was a lie?

A. What was a lie, that we had sex?

Q. Yes.

A. No.

[115] There is no real dispute the Defence suggested the complainant fabricated the statement on January 24, 2012 that she had sexual intercourse with Mr. Sobaram because the complainant had allegedly found out that Mr. Sobaram had returned to his previous girlfriend and was angry at him. The law with respect to prior consistent statements and recent fabrication is engaged.

a) Evidence of C.C.

[116] C.C. was the complainant's foster mother during a portion of the relevant time period. The Crown seeks to lead evidence from C.C. that the complainant had told her she had been “sexually active”.

[117] The Defence objects on the basis that, in C.C. statement to the police (on page 5), the complainant did not identify specifically the name of the person with whom the complainant was sexual active.

[118] This court does not accept the Defence submission for several reasons:

a) on pages 3 and 4 of C.C. statement, it is clear that she is talking about the relationship between the complainant and Mr. Sobaram. The discussion then turned to whether the complainant was sexually active. While the statement discloses that the complainant did not specifically identify the sexual activity was with Mr. Sobaram, the sexual activity was with her boyfriend who was Mr. Sobaram at the time. It is for the jury to determine whether the complainant was speaking about having sexual activity with Mr. Sobaram. The Defence can cross-examine on the fact the complainant did not specifically name Mr. Sobaram as the person she was sexually active with;

b) Further, the relationship (whether just friends or otherwise) between the complainant and Mr. Sobaram took place between September 2011 and November 18, 2011. The discussion between C.C. and the complainant took place during or shortly after this. After the complainant disclosed she had been sexually active, C.C. took the complainant for STD testing in December. There is a strong temporal connection between the timing of the relationship between the complainant and Mr. Sobaram, the sexual activity and the timing of the complainant’s testing for STD’s; and

c) prior to the complainant going into C.C. foster care, the complainant had been living at Mr. Sobaram 's home. The complainant then moved to C.C. home but continued to see Mr. Sobaram. While in C.C.’s home and prior to November 18, 2011, C.C. had concerns there was or might be an intimate relationship between the complainant and Mr. Sobaram. Even though the complainant may not have expressly told C.C. who she was sexually active with, it is clear that C.C. had concerns she was sexually active with Mr. Sobaram.

[119] This court is satisfied that, even if not explicitly stated to C.C. that the sexual activity was between the complainant and Mr. Sobaram, there is a strong inference that the trier of fact could infer from their discussions and the surrounding circumstances that the sexual activity was between the complainant and Mr. Sobaram.

[120] It should always be remembered that the jury must be instructed that this evidence can only be used to determine whether or not the complainant fabricated the sexual intercourse because she was angry that the relationship ended because Mr. Sobaram got back together with his former partner.

[121] This court is satisfied that the Crown may tender evidence that the complainant had told C.C. that she had had sexual activity prior to January 24, 2012.

b) Evidence of C.R.

[122] C.R. is the complainant's mother. The Crown seeks to lead evidence that the complainant told her mother that she and Mr. Sobaram were "together" or that the complainant was “seeing” Mr. Sobaram.

[123] The Defence objects.

[124] At this point, the issue of recent fabrication was only raised in the context of the complainant's statement on January 24, 2012 that she and Mr. Sobaram had had sexual intercourse.

[125] C.R.’s evidence is not controversial in that there was some relationship between the complainant and Mr. Sobaram – whether just friends or an intimate relationship.

[126] The proffered evidence of C.R. does not assist the jury to determine whether the complainant's January 24, 2012 statement that she had sexual intercourse with Mr. Sorbaram was or was not fabricated at that time.

[127] This evidence is not admissible.

c) Officer Hesson's evidence as to what the complainant told him

[128] This area relates to statements made by the complainant in the rear of Officer Hesson's vehicle after he apprehended the complainant on the evening of October 28, 2011.

[129] During the course of the Defence cross-examination of the complainant, the following exchange took place regarding the events of October 28, 2011:

Q. Okay. And when police found you they apprehended you and took you to their police cruiser.

A. Yeah.

Q. And the officers told you that you were not to return to the home?

A. Yeah.

Q. And you told them that you didn't care what they had to say or what your foster mother had to say.

A. I don't recall saying that to them.

Q. And you told them that you would continue to do whatever you wanted.

A. I don't recall saying that to them.

Q. You're not disputing that that may have occurred. You just don't recall.

A. Yeah, that may have occurred, but I don't recall saying that to them.

[130] The Crown seeks to clarify exactly what was said - not the paraphrasing in the alleged statement the complainant made to Officer Hesson.

[131] The Defence admits that this is not what the complainant exactly said to Officer Hesson but use wording consistent with the "Occurrence Report", a summary subsequently prepared by Officer Hesson rather than the exact quote from his notebook.

[132] What was set out in Officer Hesson 's notes in quotes was:

"We've been in a relationship a long time, I don't care what you say, we won't stop"

"We [why] do cops even care if we're in a relationship, he can't get into trouble you can't fuck'n prove anything".

[133] This court finds that these statements do no not relate to the allegation of recent fabrication regarding the sexual intercourse. They do not go to establish that the complainant had told a person that they had sexual intercourse prior to January 24, 2012 to rebut the Defence position that the complainant made up the sexual intercourse on January 24, 2012.

[134] More importantly, if the Crown wanted the quote(s) put to the complainant as part of the question, the Crown could have requested that the Defence specifically put the proper quote to the complainant in cross-examination. The Crown did not do so. Alternatively, the Crown could have sought to put the exact statement to the complainant in re-examination. The Crown did not do so.

[135] To permit the Crown to do so at this stage would allow additional evidence of the complainant (i.e. the long term relationship) to come into evidence as a statement of the complainant without the Defence having an opportunity to cross-examine the complainant on this statement.

[136] The statements by the complaiant to Officer Hesson are hearsay and not admissible through Officer Hesson under any exception.

d) Officer Hesson’s evidence as to what Katie told him

[137] The Crown seeks to lead through Officer Hesson that Katie told him that they (meaning the complainant and Mr. Sobaram) had already had sex. Katie followed this up with "she is kidding".

[138] This court is not persuaded that this hearsay statement from Katie is admissible. The statement is a prior consistent statement which might be admissible to rebut recent fabrication but such evidence would have to be tendered by Katie rather than hearsay evidence through Officer Hesson.

[139] This evidence is inadmissible.

Ricchetti, J.

Released: February 9, 2017