Her Majesty the Queen v. Ari Da Costa

COURT FILE NO.: CR-15-9622

DATE: 20180601

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ARI DA COSTA

Defendant

COUNSEL:

Martin Dionne for the Crown

Ari Da Costa in person Dean Embry as Amicus Curiae

HEARD: May 29, 30 and 31, 2018

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.

INTRODUCTION

[1] Mr. Da Costa is alleged to have committed the planned and deliberate first degree murder of his father by striking him repeatedly in the head with a hammer. His trial has just commenced in Newmarket.

[2] A central piece of the Crown’s case against Mr. Da Costa is a statement he made to a York Region Police homicide investigator, during which he admitted the planned killing of his father.

[3] Statements made by accused persons to persons in authority are presumptively inadmissible in Canadian law. The presumption is rebuttable provided the Crown establishes, to the reasonable doubt standard, that the statements were made voluntarily.

[4] The Crown applied for a ruling on the voluntariness of Mr. Da Costa’s statement. At the end of a two and a half day hearing, I advised the parties that the Crown’s application was granted and that written reasons would follow the next day. These are the written reasons.

[5] An application of this nature requires a consideration of the entire context in which the statement arose. I will begin, therefore, with a brief review of the circumstances giving rise to Mr. Da Costa’s statement.

CONTEXT

[6] A male called 911 just after noon on December 18, 2015. He identified himself as Ari Da Costa. He told the 911 operator that he had hit his father in the head with a hammer and he thought his father was dead. He expressed an awareness that police and ambulance would respond and that the police would be concerned about safety issues.

[7] Constables Tombler, Hull and Carr arrived separately, but at about the same time – roughly 12:13 p.m. – at the Richmond Hill address identified by Mr. Da Costa. Mr. Da Costa met the officers outside the residence. He had some blood on his pants and more on his hands. PC Hull asked him what happened and he replied, “I hit my dad with a hammer”. He was placed under arrest and charged with assault with a weapon. I note that the Crown does not seek a ruling as to the admissibility of this utterance to PC Hull.

[8] Constables Tombler and Hull testified that Mr. Da Costa’s demeanour was calm throughout their interactions with him. He was cooperative at all times.

[9] PC Hull placed Mr. Da Costa in the rear of his scout car. He read him his right to counsel and asked if he wanted to contact a lawyer. Mr. Da Costa said he did and PC Hull assured him that contact with a lawyer would be facilitated as soon as they got to the police station. PC Hull then cautioned Mr. Da Costa that he did not need to say anything, but that anything he did say could be used in evidence against him. He asked Mr. Da Costa if he understood that caution and Mr. Da Costa confirmed that he did.

[10] Constable Hull then conveyed Mr. Da Costa to 2 Division headquarters. They arrived at 12:34 p.m. Everything that took place while Mr. Da Costa was in PC Hull’s vehicle was recorded by an in-car camera. Only one brief verbal interaction took place between them. PC Hull confirmed Mr. Da Costa’s name and his date of birth. Mr. Da Costa provided his date of birth as June 22, 1995.

[11] Mr. Da Costa was conveyed through the sally port at 2 District HQ and then brought into the booking area and paraded before Staff Sgt. Trach, who went through the booking process with him. Staff Sgt. Trach asked Mr. Da Costa if he had any injuries or illnesses and he replied that he did not. He said he used to take Zoloft but no longer did. Staff Sgt. Trach observed Mr. Da Costa to be crying from time to time while looking at his bloodied hands.

[12] At 12:50 p.m., PC Hull contacted duty counsel. A lawyer called back about 9 minutes later. Mr. Da Costa was put on the line with duty counsel at about 1:00 p.m. and spoke to him until about 1:09 p.m. He then returned to the booking area where he was searched by PC Hull. The search yielded nothing of significance.

[13] At about 1:28 p.m., PC Hull took Mr. Da Costa to use the washroom. That exercise took about 3 minutes, after which Mr. Da Costa was returned to the booking area where he sat back down on a bench.

[14] At roughly 1:50 p.m., two forensic identification officers arrived in the booking area for the purpose of processing Mr. Da Costa. By that I mean seizing his clothing, swabbing his bloody hands and taking photographs of him. Shortly thereafter, an investigator from the homicide unit, DC Bailey, attended the booking area as well.

[15] Mr. Da Costa was led into a nearby room for processing. He was advised by DC Bailey that his charge had been upgraded to murder. He re-read Mr. Da Costa his right to counsel and gave him both a caution and secondary caution. The initial caution was a repeat of the fact that Mr. Da Costa was under no obligation to make a statement but that if he chose to say something, it could be used in evidence against him. The secondary caution was to the effect that Mr. Da Costa should not be influenced to make a statement by anything that any officer had, to that point, said to him. Mr. Da Costa asked DC Bailey to repeat the secondary caution, which he did. Mr. Da Costa then confirmed that he understood it.

[16] Given the change in Mr. Da Costa’s jeopardy, DC Bailey asked him if he would like to speak to duty counsel again. Initially Mr. Da Costa said no, but after a few moments, he decided he would like another chance to talk to duty counsel. DC Bailey arranged for him to speak to the same lawyer he had spoken to earlier. The second call to duty counsel occurred more or less immediately after Mr. Da Costa was processed by the forensic identification officers.

[17] Following the second call with duty counsel, Mr. Da Costa was placed in a holding cell. He remained in the holding cell until approximately 9:50 p.m. At that time, he was removed by two homicide investigators: DC Minns and DC Kastoun. He was led to an interview room where he was provided with a sandwich and a drink. He was advised by DC Minns that he was being audio and video recorded. He was told to eat his meal and that the officer would be back shortly to speak to him.

[18] At about 10:10 p.m., DC Minns returned to the interview room and began his interview with Mr. Da Costa. He read Mr. Da Costa the secondary caution again and confirmed that Mr. Da Costa understood that caution. The interview continued until approximately 11:45 p.m. when a cigarette break was taken. It recommenced close to midnight and was completed at approximately 12:50 a.m.

THE STATEMENT

[19] During the course of his interview with DC Minns, Mr. Da Costa made a number of inculpatory statements. I will briefly paraphrase them. He said he had been awake throughout the previous night. He attempted to kill himself by putting electronics (laptop, shavers and cell phone) in the bathtub with him. It did not work. He decided to kill his father instead. He was living at his grandmother’s home at the time. His father came over to do some renovation work. Mr. Da Costa hid a hammer under a pillow on the couch. His father asked for some help moving a television downstairs. Mr. Da Costa hid the hammer under his jacket and followed his father downstairs. When they were in the basement and his father’s back was turned, he struck his father in the head with the hammer. His father fell to the ground and he struck him repeatedly. He said he wanted to make sure his dad would not survive.

[20] A small sampling of Mr. Da Costa’s utterances includes the following:

DC Minns: So, today – uh, uh – correct me if I’m wrong. Ya – your dad’s goin’ downstairs with the TV. You’re goin down. You see the hammer and you pick it up?

Mr. Da Costa: No, I brought the hammer down too.

DC Minns: Or sorry. Yeah.

Mr. Da Costa: Yeah.

DC Minns: You brought the hammer from down – upstairs to downstairs. You already knew you were gonna hit him with it?

Mr. Da Costa: Yeah.

DC Minns: Had you been thinking about it like, prior to this? Is this – this is something…

Mr. Da Costa: No.

DC Minns: …you thought about last night when you were up all night or?

Mr. Da Costa: Uh, it might have – it might have – it might have crossed my mind. Yeah. After I – I couldn’t go through with, um, like, killing myself, yeah, I thought maybe, um, like, um do it – do that instead.

DC Minns: Instead of killing yourself you thought you’d kill your dad?

Mr. Da Costa: Yeah.

DC Minns: Did – did you – did you know that it’s wrong to do that? Like – or you’re fully aware?

Mr. Da Costa: Yeah.

DC Minns: And you know that like, there’s gonna be consequences?

Mr. Da Costa: Yeah.

DC Minns: You’re aware of that?

Mr. Da Costa: Yeah. Yeah.

DC Minns: And you’re ready to face that?

Mr. Da Costa: Yeah.

Mr. Da Costa: …I had the – the hammer on the couch. It was like, under the pillow…So he comes in and says he has to do – finish the flooring in that room. So, take the TV out downstairs. So, unplug everything and that – move the TV and he, uh – he unplugs it. So, he says – he asks me to help him, but then he picks it up himself and proceeds to take it downstairs. So, I took the hammer, I followed him. I was, uh, thinking, you know, maybe I’m gonna hit him while he’s on the stairs. Said, no. So, then I – I follow him down further like I said, then he – he walks through the basement. He puts the TV on the – the stand, the dresser or something, and as – when – as soon as – when he puts it down, his back is toward me and I - I take the hammer out from - it was like, in my jacket. In my sweater like, in – in my shirt, right? I take the hammer out. I hit him. Uh, he – he made a – a real – a real noise. Like – like a “Ow, ooooaah”. And he fell to the ground. And then – then I just – kept hitting him over and over ‘cause I wanted to make sure he wouldn’t, mmmm, survive.

DC Minns: You wanted to make sure he wouldn’t survive?

Mr. Da Costa: Yes.

DC Minns: When did you put the hammer under the pillow on the couch?

Mr. Da Costa: That morning.

DC Minns: Knowing it was wrong, knowing there’s criminal consequences for it, why were you prepared to throw it all away?

Mr. Da Costa: I don’t have anything. I don’t have anything to live for. I don’t care. I don’t care at all, you know? I did the crime; I’ll do the time, right?

THE GOVERNING PRINCIPLES

[21] The controlling authority on voluntariness applications remains R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 (S.C.C.). In Oickle, Justice Iacobucci expressed the following basic principle: a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to its voluntariness. He wrote, at para. 69:

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.

[22] Voluntariness must be assessed in a contextual way. All of the circumstances surrounding the making of the statement must be considered in terms of assessing whether a reasonable doubt exists as to its voluntariness. Justice Iacobucci identified a number of specific circumstances that should be considered, amongst possible others. They are:

(i) threats;

(ii) promises;

(iii) oppression;

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

(v) police trickery.

[23] Concerns about voluntariness intersect with concerns about reliability. Statements that are coerced, or induced by way of threats, promises, unacceptable police trickery or oppressive circumstances are not reliable. Neither are confessions made by a person who is not functioning with an operating mind.

[24] A trial is, at its core, a search for the truth. Unreliable evidence, whether in the form of a statement or otherwise, tends to distort, rather than enhance the search for truth. Hence the requirement that the Crown establish the voluntariness of an inculpatory statement made to a person in authority.

[25] Central to the disposition of this particular application is the requirement that the accused had an operating mind at the time he made his statement. The bar is set pretty low in terms of establishing that the accused person was functioning with an operating mind. It requires no more than demonstrating that the accused knew what he was saying and that he was saying it to a police officer who may use it to his detriment. See Oickle, para. 63. He needs only sufficient mental capacity to make a choice whether to speak to the police or not: R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914 at paras. 49-51. At the same time, it must be remembered that the requirement of an operating mind is but one of a number of contextual factors that must be considered in the overall assessment of whether the statement was voluntary.

THE PARTIES’ POSITIONS

[26] The positions of the parties may be simply stated.

[27] The Crown’s position is that no reasonable doubt exists as to the voluntariness of Mr. Da Costa’s statement. No threats, promises or inducements were offered to Mr. Da Costa. No trickery was resorted to by the police. There were times when Mr. Da Costa expressed to both a 911 operator and to DC Minns that he did not wish to speak about certain topics, evidencing the expression of his will or his choice. Simply put, there is nothing present here to raise any doubt about the voluntariness or reliability of Mr. Da Costa’s statement.

[28] Mr. Da Costa has elected to represent himself in these proceedings, as is his right. He was directed to the case of R. v. Oickle, as above, and strongly encouraged to review it. I described for him the key issues involved in the assessment of voluntariness.

[29] Mr. Da Costa focused his argument on the submission that he lacked an operating mind at the time he was interviewed by Detective Minns. To be fair to his argument, he took the position that the person who participated in the interview with DC Minns was not him, but rather another person who shared his body. He argued that the person who made the videotaped statement was not acting with an operating mind, based on the following factors: (1) the person appeared uneasy and withdrawn and was hesitant and wary about answering questions; and (2) the person made contradictory statements in the course of the interview. For instance, he told PC Hull that his date of birth was in 1995, while he told DC Minns that his birthdate was in 1998.

DISCUSSION

[30] For the reasons that follow, I am satisfied, beyond a reasonable doubt, that the statement given by Mr. Da Costa to DC Minns was voluntary, is reliable, and is admissible in evidence. I will begin my discussion with a consideration of Mr. Da Costa’s state of mind at the time he gave his statement to the police.

Mr. Da Costa’s Mental State

[31] This is a sad case, on a number of levels. It is readily apparent to me that Mr. Da Costa suffers from significant mental health issues. They are palpable. They may or may not have had a part to play in what happened on December 18, 2015. I am not being asked to make that determination.

[32] Despite Mr. Da Costa’s obvious health issues, he has been assessed as fit for trial and the interactions I have had with him to date do not suggest that he is unfit. That is not frankly saying much because fitness for trial is a low bar. An accused need only have the capacity to (1) understand the nature and object of the proceedings; (2) the possible punishment; and (3) to communicate with counsel: see R. v. Taylor (1992), 1992 CanLII 7412 (ON CA), 77 C.C.C. (3d) 551 (Ont. C.A.).

[33] Mr. Da Costa had counsel for much of these proceedings. But he terminated her. He has elected, as is his right, to represent himself. I am unable to force counsel upon him. To do so would be tantamount to concluding that a person who has mental health problems has less right to represent himself or herself than a person without mental health problems. That is not the law. Mr. Da Costa has the right to make those sorts of decisions for himself. Being fit for trial does not require that he make what others might view as the best decisions for himself.

[34] As I said, Mr. Da Costa focussed his argument on the voluntariness application on whether he had an operating mind at the time of the interview with DC Minns. He testified that he did not. His argument was ultimately not persuasive because of the absence of any compelling evidence to support it.

[35] To be candid, though any accused person who elects to proceed without counsel is likely to be on the back foot in the course of legal argument, I do not believe that even a highly experienced counsel would have been able to raise a reasonable doubt about the voluntariness of the statement in issue here.

[36] To be clear, it is not Mr. Da Costa’s onus to prove that he did not have an operating mind. It is the Crown’s onus to prove that he did. While the Crown was not in a position to tender expert psychiatric evidence on the application, I am able to draw inferences as to Mr. Da Costa’s state of mind from the content of his interactions with the police.

[37] Mr. Da Costa’s first interactions of record occurred during the 911 call. He advised the operator that he had hit his father with a hammer and he thought his father was dead. Despite the bizarre nature of that assertion, Mr. Da Costa sounded entirely lucid. He described who he was, where he lived, the assistance he required and his violent conduct towards his father. He expressed an awareness that the first responders would be concerned about the risk of violence and a desire to behave in a non-confrontational way.

[38] Upon arrest, Mr. Da Costa was given his right to counsel and appeared to understand it. He expressed a desire to speak to duty counsel and in fact had a phone call with counsel at the police station. He sought and had a second discussion with duty counsel after being advised of the change in his jeopardy. Mr. Da Costa appears to have understood his discussions with duty counsel: he told DC Minns that he was advised by counsel not to give any kind of statement or sign anything.

[39] Officer Minns utilized certain basic, recognized techniques to get Mr. Da Costa talking. He did not use trickery or even particularly controversial techniques. He clearly did his best to build a rapport with Mr. Da Costa. He utilized a mirroring technique – expressing similar interests to Mr. Da Costa in areas mentioned by Mr. Da Costa, such as philosophy, heavy metal music, video-gaming and a general dislike of painting.

[40] Mr. Da Costa responded to Officer Minns’ efforts. He talked in a rational, coherent and even an articulate way about such matters as:

(a) A paper his brother had written comparing the writings of Friedrich Nietzsche with those of Arthur Schopenhauer;

(b) His family and social connections;

(c) His living arrangements;

(d) Video-gaming;

(e) His education, the absence of meaning in his life and his lack of motivation; and,

(f) He described the killing of his father in a detailed and matter-of-fact way.

[41] He confirmed during his discussions with DC Minns that he understood that what he did was wrong and that there would be consequences. He said he was ready for those consequences. He acknowledged that he did the crime and now would “do the time”.

[42] Based on the circumstances of the case as they appear to be, it is difficult, if not impossible, not to form at least a provisional view that Mr. Da Costa was not mentally well at the time of his interview with DC Minns. If his statement is accepted as truthful, then he was awake all night; failed in an attempt to kill himself; determined, for no apparent reason, that he would kill his father instead; followed his father to the basement the next morning, secretly armed with a hammer; killed his father by repeated blows to the head with the hammer; then called 911 to report what happened.

[43] Mr. Da Costa’s alleged behaviour was highly unusual to say the least. But as is the case with the threshold of fitness for trial, a finding that Mr. Da Costa had an operating mind involves the application of a low bar. I must basically ask myself three questions:

(a) Did Mr. Da Costa have the mental capacity to make a choice about whether to talk to the police?

[44] This question must surely be answered in the affirmative. Nothing in the interactions he had with the police suggests that he was operating with a diminished mental capacity. There are certainly live questions about how and why he decided he needed to kill his father and why he acted on that decision. But as he spoke to the police, he was appropriately responsive. There are certain points where he actually expressed a choice not to discuss something. At one point, for instance, he indicated to DC Minns that duty counsel had told him not to make a statement. At an earlier point, he was asked by the 911 operator whether he had become mad and hit his father. He told her that he did not wish to discuss it.

(b) Did he appreciate what he was saying?

[45] The interactions between Mr. Da Costa and DC Minns clearly demonstrate that Mr. Da Costa was able to follow the conversation and respond appropriately. When the officer first began to ask about what happened with respect to Mr. Da Costa Sr., Mr. Da Costa recognized the area they were getting into and told the officer that his lawyer had advised him not to say anything. DC Minns made it clear to him that his job was to find out what happened; for the police and for others who want to know.

[46] Later, as the conversation developed, Mr. Da Costa gave increasing detail about what had happened leading up to and during the assault on his father. His description was internally consistent and made sense. There is no reason to believe that he did not appreciate what he was saying.

[47] DC Minns took a break at one point in the interview to speak with the officer monitoring it. When he came back to the interview room, the following exchange took place:

DC Minns: So I just wanna – I just wanted to sort of revisit somethin’. Like, you’ve been - you’ve been open with us. I mean, when you called 9-1-1…

Mr. Da Costa: Yeah.

DC Minns: …you – you said exactly what you did. Um, when the officers came, you - you told the officer there what you did. You’ve told me what you did. Um – uh, I just…

Mr. Da Costa: You don’t know why.

DC Minns: Yeah, I don’t know why. No.

[48] In my view, this exchange demonstrates not only that Mr. Da Costa understood the nature of the conversation, but he was actually anticipating (accurately) the interviewer’s questions.

(c) Did he know he was saying it to a police officer who could use it to his disadvantage?

[49] This last question must also be answered in the affirmative. Mr. Da Costa called for the police when he dialled 911. He knew they were coming and that he would be arrested. When he was first arrested by PC Hull, he confirmed that he understood the caution that anything he said could be used against him.

[50] He expressly advised DC Minns that he understood that what he was did was wrong and that there would be consequences. He knew what was at stake but said he did not care, because he had nothing to live for.

[51] One additional exchange provides compelling confirmation that Mr. Da Costa knew he was speaking with the police and what his jeopardy was. A break was taken during the interview, during which DC Minns and Mr. Da Costa went down to the garage to smoke a cigarette. When they were done, the officer told Mr. Da Costa that he could just butt out his cigarette on the ground. Mr. Da Costa asked him, “you’re not going to use this for DNA are you?” This question clearly demonstrates that Mr. Da Costa knew who he was dealing with and that the police were interested in collecting evidence against him.

[52] In my view, there is no doubt whatsoever that at the time he spoke with the police, Mr. Da Costa understood what was going on; where he was; why he was there; who he was talking to; and what the stakes were. There is no doubt that he had an operating mind, as that term is understood in Canadian law. Immediately after the attack on his father, he called 911 and told them what he had done. He knew what the consequences of that call would be and opted to make it just the same. Similarly, he knew what the consequences would be when he spoke to DC Minns and opted to speak to him just the same as well.

Other Factors Typically Associated with Voluntariness

[53] Having carefully reviewed Mr. Da Costa’s statement, I am unable to identify any instances where threats or promises were made to him, or where inducements were held out to him as a quid pro quo for making a statement. A careful review of the entire narrative from Mr. Da Costa’s arrest to the completion of his videotaped statement reveals absolutely no misconduct on the part of the police in terms of their dealings with Mr. Da Costa. The circumstances leading up to and surrounding Mr. Da Costa’s statement were not oppressive in any way.

[54] I find that Mr. Da Costa was treated fairly and with respect at all times. In turn, his demeanour was calm and cooperative throughout his dealings with the officers who came into contact with him. I agree with Mr. Da Costa’s submission that he at times appeared withdrawn or perhaps even morose during the interview. I also accept his assertion that he was uneasy and perhaps wary. But those observable states are consistent with a great many individuals being interviewed by the police in connection with serious criminal offences. They are not the types of observations that would support a finding that he lacked an operating mind.

CONCLUSION

[55] In conclusion, I am satisfied beyond a reasonable doubt that Mr. Da Costa’s statement was made to DC Minns voluntarily. It was given at a time that Mr. Da Costa had an operating mind. The circumstances were in no way oppressive and no trickery was engaged in by the police. There were no threats or promises made, nor inducements offered to Mr. Da Costa. There was to be no quid pro quo for the making of the statement. In my view, the statement was given freely and voluntarily.

[56] The application of the Crown is granted. The statement is admissible in its entirety.

Boswell J.

Released: June 1, 2018