COURT FILE NO.: J17-69
DATE: 2018-06-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
PETER KHILL
Respondent
Steve O’Brien and James A. Nadel,
Counsel for the Crown, Applicant
Jeffrey R. Manishen and
Counsel for the Accused, Respondent
HEARD: June 15, 2018
The HonouRABLe Mr. Justice C. S. glithero
RULING ON VOLUNTARINESS OF A STATEMENT
PUBLICATION BAN: This application was heard in the absence of the jury. Pursuant to S. 648 of the Criminal Code this ruling, the application evidence heard, the arguments of counsel and the application materials filed may not be published or broadcast before the jury retires to consider its verdict.
[1] Peter Khill is charged with second degree murder as a result of having admittedly shot to death the deceased who was in the midst of stealing the accused’s truck, which was situated in the driveway of the rural home occupied by Mr. Khill and his partner.
[2] The Crown seeks to have ruled as voluntary and admissible statements made by the accused during his interview with Detective Ashbaugh later in the morning of the shooting on February 4, 2016.
[3] There is no corresponding Charter application. The defence concedes there was no oppression, no police trickery, no threats, and that the accused had an operating mind during the interview.
[4] The defence position is that the statements made by the accused during the interview were induced, and accordingly the Crown cannot prove the voluntariness of the statements beyond a reasonable doubt and accordingly the statement is inadmissible.
[5] I remind myself at the outset that the onus is on the Crown to prove the statements to be voluntary, beyond a reasonable doubt. That onus requires proof to the criminal standard that the statements were given without fear or prejudice, or hope of advantage, and without breach of the accused’s common law right to remain silent.
Summary of Evidence Leading up to the Interview
[6] Shortly after 3:00 a.m. on February 4, 2016, the accused and his then partner, now wife, were asleep in their home in a rural area in Glanbrook Township, now a part of the City of Hamilton. The home is on a two lane road, without sidewalks, nor streetlights. It is surrounded by farmland.
[7] Melinda Benko heard the sound of two loud bangs. She wasn’t sure what they were, or exactly where they were coming from, but awoke the accused. Once he awoke, two more bangs were heard. He looked out the bedroom window towards the front of the house, then went and got a legally possessed 12 gauge shotgun, loaded it and went outside. While he was doing so, Ms. Benko looked out the bedroom window and could see that the interior lights of the accused’s previously locked truck were on. She could see the movement of someone in the truck. Shortly thereafter, she heard what she thought was a sound of one shot, but in cross-examination admitted it could have been two shots close together.
[8] Ms. Benko phoned 911 and indicated that the accused had shot the person who was trying to steal his truck.
[9] The accused came into the home and took over the conversation with the 911 communicator indicating that the shotgun was back in the house, unloaded, that the victim currently had no pulse, and that he had tried to perform CPR on the victim. He also advised the operator that the person that he shot had his hands up, not in a gesture of surrender, but rather pointing at the accused, that it was pitch black, and that it looked to the accused as though the victim was literally about to shoot him, so the accused shot the victim as he did not want to lose his life. He further indicated that it now looks as though the victim did not have a gun.
[10] The first police officer arrived very shortly thereafter and essentially took charge of caring for the victim. A second officer arrived soon after that and took charge of the accused, initially arresting him for attempted murder, and read him his rights to counsel and gave him the standard police caution.
[11] The accused was wearing only a T-shirt and boxer shorts when he left the bedroom to go outside on this February morning, and was only so clad when initially taken into custody.
[12] When the second officer was advised that the victim had died, he placed the accused under arrest for murder, without specifying whether it was first or second degree murder, and reminded him that his rights to counsel and the caution still applied to which the accused replied “I am a soldier, he raised his hands to gun height. I thought I was in trouble, does self-defence mean anything?” When the accused indicated that the other part “raised his hands to gun height”, the accused spoke those words only, without gesturing as he was handcuffed behind his back at the time.
[13] The accused was taken to the police station and arrived at 4:02 a.m.
[14] The evidence of all witnesses at trial has been that it was extremely dark out at the time of the shooting. Melinda Benko testified that all lights were off in the house at the time of the shooting and that she only turned on a porch light after calling 911 and so as to assist the police in seeing the house.
[15] The third officer on the scene also testified that he could hear the sound of the accused’s truck radio playing softly at the time he arrived.
[16] The accused’s truck was backed into the driveway with the rear end a few feet from the closed garage door. The front passenger door of the pick-up truck was open. The lock on that door handle had been punched in, which permitted entrance to the truck. A portion of the steering column had been broken away permitting access to mechanisms which, on the police evidence, would permit the truck to be started, without a key. The victim was located lying on his back in the muddy driveway, with a shotgun wound to his upper chest and another shotgun wound to the back of his upper right arm. Two screwdrivers were found in the mud near the victim and two spent shotgun shells were found in the mud a few feet away.
[17] Prior to the interview of the accused taking place, there were discussions as between the primary investigator, a staff sergeant in the homicide unit and other officers involved in the investigation, as well as the interviewer, Detective Ashbaugh. During that briefing meeting, Detective Ashbaugh expressed the view that he thought there to be some problems with a self defence theory. Amongst those officers, the feeling was that the appropriate charge was one of second degree murder. Subsequently, a Crown attorney was contacted and as a result it was determined that the accused would be, and he was, re-arrested for first degree murder. The interviewer, Detective Ashbaugh, was advised that this had occurred prior to the interview.
[18] Prior to the interview, Detective Ashbaugh had available and had reviewed the 911 call, the notes and reports of the investigating officers and had observed the interview of Ms. Benko.
[19] Prior to the interview, the accused had access to a Legal Aid duty counsel and spoke with that person on two occasions.
Circumstances of the Interview
[20] The interview was videotaped and commenced at 10:34 a.m. The accused, by that point in time, was wearing a police issued white jumpsuit of some material and appears tired and haggard for his 26 years. The interview began approximately 7.5 hours after the shooting, and 6 1/2 hours after the accused’s arrival at the police station.
[21] The transcript of the interview of the accused, found in the application record, is very accurate and references to pages numbers therein is more convenient and helpful than would be reference to time stamps on the videotape. The interview ends at 12:56 p.m. and accordingly is approximately 2 hours and 22 minutes in duration, and occupies 47 pages of typed transcript.
[22] After introductions and some preliminary discussion about matters other than the offence, at page 4 the officer indicates that he is not trying to trick or manipulate the accused, but rather wants to ask him about a few things that happened “to see if we can put this into perspective”. The accused replies that upon the advice of legal counsel, he has been advised not to make any statements or comments or talk about the charges and so he will not be doing so today. The officer acknowledges that legal rights are important, but also advises that the accused has a right to make a statement and that the right to remain silent “is a double edged sword”. He continues that in the absence of any information from the accused, all the police have is the physical evidence to go on and what they have been told by others, and what the accused previously said to dispatchers on the 911 call. The officer continues that he intends to run through what they know so far and invites the accused to correct any mistakes and says that as he does so he always wants the accused to think about “what decision you need to make”. He continues (at page 5) that it is important they put all the information they have into context so that they fully understand what happens, so as to make sure the court understands exactly what happened “so it can be handled and dealt with appropriately”.
[23] Later on page 5, the officer reminds the accused of the initial arrest for attempted murder, subsequent arrest for murder, and lastly the final arrest for first degree murder, to which the accused replies “on the advice of legal counsel I’m gonna remain silent”. The officer goes on to inform the accused that murder can be first degree murder or it can be second degree, that first degree murder is planned and deliberate and that “it’s second degree it is decided that it was not planned or deliberate. There were other circumstances that were involved. That why understanding your version of events, understanding what was going through you mind, understanding what you perceive, all those things are hugely important, like they’re incredibly important … so I want you to think about that while we’re going along … that’s the situation that you’re facing right now, you’ve been arrested for first degree murder. … you hold the most important pieces. I think that’s really important for you to remember, and I want you to sit there and make some good decision”.
[24] The officer then relates some of the information obtained from the officers initially arriving on the scene and then asked the accused if those recollections are accurate, to which the accused replies “upon duty counsel’s …”, at which point the officer interrupts saying he doesn’t have to go through “that spiel” all the time.
[25] Although not determinative, in my opinion it is significant that the accused asserts, or attempts to assert, the right to remain silent a total of 17 times during the interview.
[26] As indicated on page 8, the officer advises the accused that he thinks there’s a big, big difference between the situation where somebody takes the time to dress properly before going outside on a winter morning, as compared to a person rushing outside like the accused did. He reminds then the accused that he can say that he has no comment, but continues “I want you to really give some thought to telling me whatever, actually, happened because I think it’s so important to hear from you because it has a huge impact on what takes place in this room. I mean, if you say nothing, I review the evidence, and then leave the room and it is what it is. Nothing is put into perspective. Nothing’s explained”.
[27] The officer asks, and the accused advises, that he has never been arrested before and this was a first experience for him and the officer adds at page 9 “make sure that you don’t get so overwhelmed by the magnitude of the situation that you stop thinking about what is the most appropriate response, and the best action for you to take to look after yourself”. The accused again asserts his right to remain silent based on legal advice he has received.
[28] By shortly before 11:00 a.m., as indicated in paragraph 11, the detective acknowledges that the accused is visibly upset. The videotape shows the accused to be crying by then and the officer offers to get him some Kleenex and to give him time to collect himself. The evidence on the voir dire is that the police officer left the room for a couple of minutes, but watched from another location and observed the accused then sitting alone in the interview room. My observation is that the accused was crying, sobbing, hyperventilating, rubbing tears away, sniffling to the point of having to blow his nose several times, all of which in my observation appear to be genuine actions on the part of the accused. The officer re-enters the room and tells the accused he has some big decisions to make here in that room that day and says “I really think knowing exactly what happened will help us make decisions that will be very important. So, Peter, I’m just gonna ask you what happened today?” The accused indicates he is not going to comment on that but will talk about his service in the army reserves and his training as a soldier during which he mentions that “justice” is important. The officer writes that word on a whiteboard beside the desk at which the accused sits. The conversation continues wherein a response to a question of why he joined the reserves, the accused indicated that one of the reasons was to defend Canada. The officer writes that word “defend” on the whiteboard and says (at the top of page 14) “I think it’s a hugely important word. These are the types of issues that I would like to deal with in this room today, are things like justice, things like defending. But, those two words, we’re unable to reach those ends if we don’t know what happened … and that’s why I think it’s incredibly important to hear your side of events, and most importantly, what you thought”.
[29] Shortly thereafter the officer suggests that he has had to explain as an officer when he pulled his gun and shot, but he explained all the variables and things turned out okay. The officer then turns to this case indicating that they have part of the picture of what happened from Melinda, but not all of it and that pieces are missing. He recites to the accused that Melinda was in great fear and that her fear was in part because she had recently heard someone fooling with an alarm keypad and hearing the mechanism move, the officer says he understood how it would affect him if he came home after being away from his family and if he lived out in the country, if he found out someone had been around his house and trying the locks on his doors and how they would have a huge impact on how he perceived events. He also tells the accused that he understands that it’s a very secluded rural property. The accused can be observed on videotape crying and wiping his eyes when being advised of Melinda’s information to the police.
[30] At the very bottom of page 15 the transcript accurately reflects the videotape and shows that the officer starts to go through the events of the night in question, starting with Melinda’s observations, that the accused gets up without bothering to dress, doesn’t take the time to do anything, grabs the properly stored shotgun, that he leaves the bedroom and that Melinda sees that somebody’s in the truck as she looks through the window, but that she can’t hear what is being said outside, that there’s a shot discharged and Melinda calls 911. The accused asks if he could speak to his lawyer and then have another interview. The officer answers by indicating that a lawyer would not want to be present for such an interview because then they become a witness. The accused didn’t ask if he could have the lawyer present for the interview, but rather if he could speak to a lawyer and then have another interview. Arrangements are made for the accused to speak to counsel and that process takes place between 11:28 and 11:48 a.m.
[31] On entering the room, the officer again indicates he wants to go over some things, but the accused reasserts his right to counsel based on legal advice. The officer responds by reminding him he’s charged with first degree murder, that soldiers can function through anxiety, that he’s intelligent. The officer then produces two photographs to the accused, which are photographs from the scene. In response to questions about those, the accused says that he wants to give his side of the story, but he’s going to give it to his lawyer. The officer responds that he has the right to remain silent but he also has the right to tell the officer what happened and asks the accused whether at some point in time he plans to tell what happened. The accused indicates that he does but says that this is not the time. The officer replies (at the top of page 23) “I totally disagree with”. The accused reasserts that that’s what his legal advice has been and the officer turns to the two words on the whiteboard, justice and defend and says “If there’s something we need to know to make sure that justice is handled properly, you have to tell me”.
[32] What follows is some more recital of some of the known facts by the officer ending with his question as to whether it would be accurate for him to assume that the accused went out the back door of the house to which the accused again asserts his right to silence.
[33] The officer replies “all I can tell you is we act upon what we’re told”. He recites that they have a dead man, a shotgun shell, a shotgun, GSR washings, that the police know the accused shot the victim and that what they need to know is why. He then continues “because remember, the difference between charges, there’s different types of charges. There’s different types of things that can be involved here. Peter, what’s on your mind? What you saw, why you did what you did. And if you’re truthful with me and you tell me why you did what you did, what you perceived, all those things; and I can verify it, that it matches up with the physical evidence that we have, I will act upon it”. The accused replies that he’s paying for the legal advice so why would he not follow it. The officer refers, again, to a story he had told the accused about acting in a way contrary to his grandfather’s advice, and that his decision had proven to be correct. The officer continues he would not follow advice that he didn’t feel was the right thing to do, whether he was paying for it or not. The officer then plays a portion of the 911 audiotape to the accused in the interview room during which Melinda advises the dispatcher that she couldn’t believe how upset she was. The officer continues that it’s not every day your property gets broken into, that he doesn’t know what was on the accused’s mind. The accused asked what would be on the officer’s mind in such circumstances and the officer answers “I’m protecting my property. I’m protecting my family. I’m protecting my house. I’m making sure that – there’s all kinds of things that would be going through my mind, especially if there’s things that happened in the past that make me afraid. There would be all kinds of things going through my mind, but I can’t know what was going through your mind”.
[34] Essentially the officer is telling the accused that he knows what would be going through his own mind but he can’t determine whether that’s what was going through the accused’s mind unless the accused tells him. He then plays another clip of the 911 call and points out how afraid Melinda sounds during the call. The accused’s eyes can be seen to be watering on the videotape. Then another portion of the 911 tape is played. The officer advised the accused that Melinda can’t help because she can’t see what happened outside and accordingly that he’s got too many pieces missing from the puzzle. Another portion of the 911 tape is played during which the videotape shows the accused to be sobbing.
[35] The officer again says that he needs to know what happened and the accused advises that he’s struggling with the decision to answer those questions because it’s a decision he’s going to have to live with the rest of his life, that it’s not an issue of telling the truth or telling a lie, but rather an issue of whether to tell the officer or whether to tell his lawyer. The officer replies by telling the accused that he will act upon the truth that it will be handled the way it should be, but that the officer can’t understand why the accused pulled the trigger unless the accused tells him.
[36] The officer then tells him that what puts it into perspective is why the accused shot him, and suggests that one option is that it was preplanned and calculated like an American vigilante who finds somebody hiding on their property and then goes and hunts him down, or in the alternative is it a situation where a person has been told by his girlfriend that somebody’s been trying to break in, that she’s terrified that he hears someone breaking into his vehicle and “then there’s a lot of thought processes that go through – that I think would go through my mind that would be very important, but the only way I can know that is if you tell me. And I really, I think sitting here looking at you, I think I know what was going through your mind. I’ve been, I’ve been a detective most of, most of my adult life. And it doesn’t take a great detective to look at a crime scene and see there’s a screwdriver right there. The person is in the act of committing a crime. All I need to know is what happened at the back of that truck, why you did what you did? I mean, Peter, please, please, put this into perspective for me.” The words “please, please” as observed on the videotape has the officer pleading with the accused to tell the story.
[37] They then talk about a television series involving murders.
[38] The officer then continues that “the big thing that puts this into context is what you saw, what you thought, what you felt. That’s the only things that are missing right now. In the absence of that, we have a man who is militarily trained, who takes a shotgun. I mean, can the picture be painted that – went around the back door, snuck around, got in good shooting position. I don’t know where you’re standing when the shot was fired. You yelled at this guy. I don’t know what was yelled. And then the guy tries to run away and you shoot him”. The accused denies that and the officer continues “I don’t know, I don’t know. Or was it a guy who was afraid for his girlfriend? If something happens to me, then whoever is out there is here alone with my girlfriend inside and I don’t know how many people there are and I don’t know what happened, so I take certain steps. And then when I make the approach, all of a sudden, this happens and my training kicks in. I can’t fill in those blanks. The evidence can support both of those. The only person who can tell me what truly happened, truly what was in your mind, is you. And, Peter, I want to hear it”.
[39] The accused immediately replies “can you tell me the different outcomes of those two stories, as far as, you know, the case as it proceeds, and the charges and all that thing. What would be the different outcomes?”
[40] The detective replies “Well, the different outcomes are if it’s planned and it was clear first degree, I mean, it doesn’t get any worse than that”.
[41] The detective continued “if it is not preplanned, and something happened that the situation warranted it to be second degree murder, where it’s still an action that was clearly, the average person would suggest shooting somebody in the chest with a shotgun, a person would reasonably expect that that would cause somebody to die. So there’s second degree murder. But, then there’s all kinds of other things and I don’t know, I don’t know. I don’t know, I don’t know unless I hear what happened, I can’t say it’s this or it’s that. But, whatever the truth is, if the truth is some blank, it could be something totally different from one of those two. And I can’t sit here and say all the Criminal Code like all the different sections that apply or if none of the sections apply”.
[42] The officer then reminds the accused that he told the arresting officer that he had even tried to save the victim by doing CPR, and the officer tells the accused he believes him 100%.
[43] The officer continues “I wouldn’t be spending in the time in here with you, like this if I didn’t believe that you are a good man, that you are a good person. You’ve got a lovely girlfriend. You’ve got a full life ahead of you. If you thought something, you need to tell me because here’s what you told the officer, if these are in fact, your words. You said like, “I’m a soldier, that’s how we’re trained, I came out. He raised his hands light to gun height. It was dark. I thought I was in trouble”, and asked the accused if that’s true and the accused indicated that it was and the officer asked the accused to tell him more about it following which the accused indicates he’s putting a lot of trust in the officer and goes on to explain what had happened, how the victim had turned from the truck, very quickly, and put his hands not from a down to a straight up position, but rather from a down to a pointing towards the other person position and demonstrates that for the officer. He also indicates that it appeared to him that some type of weapon was being pointed at him, but now that he sees a photograph thinks possibly it was a screwdriver.
[44] The above revelations by the accused are recorded on page 32 of the transcript and occur it would appear at approximately 12:21 p.m. For the balance of the interview the accused pretty openly answers questions.
[45] At 12:51 p.m. the officer leaves the room and re-enters less than a minute later and advises the accused that he will be charged with second degree murder, that the lead detective has made that decision and that Detective Ashbaugh agrees with it. He also tells the accused that the other officers who had been watching the interview think that the accused is truthful and honest.
Analysis
[46] In R. v. Oickle, 2000 SCC 38, the court at paragraph 23 indicates ________ that case is being taken as an opportunity to set up the proper scope of the confession rule and that such rule will by necessity be contextual and that the trial judge must consider all of the relevant facts. At paragraph 49 it makes it clear that within the classic Ibrahim definitional phrase of “fear of prejudice or hope of advantage” is the prospect of leniency from the courts and reiterates that 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 in return for a confession.
[47] At paragraph 56, the court differentiates as between moral or spiritual inducements, as they are something over which the questioner has no power to deliver, as opposed to statements to an accused that if he does tell the officer what happened he will get a lighter sentence as that his held to be a strong inducement as the officer is offering a quid pro quo. At paragraph 57, the court holds that a statement only becomes improper when the inducement, either alone or in combination with other factors, is strong enough to raise a reasonable doubt as to whether the will of the subject has been overborne.
[48] In R. v. Spencer, 2017 SCC 11, the court again held that a quid pro quo is an important factor but that it is the strength of the inducement having regard to the particular individual and his or her circumstances that is to be considered in an overall contextual analysis into the voluntariness of the statement.
[49] R. v. Singh, 2007 SCC 48 is a case where on a five to four basis the Supreme Court of Canada declined to interfere with a trial judge’s discretion and showed deference in upholding his ruling that a statement was admissible despite 18 occasions when the accused tried to exercise his right to remain silent.
[50] Here the Crown relies heavily on R. v. Jorgge, 2010 ONSC 6272, where a judge of this court held a statement admissible in a case where the accused was charged with administering a stupefying drug with intent to commit a sexual assault. During police questioning, questions were asked aimed at whether or not the accused was a serial sexual predator or rather whether this case was a one off. At paragraph 8, the court recognized the Reid interrogation method and that one of the techniques used therein is to suggest less morally culpable possibilities to an accused in hopes that the accused will grasp for the less blameworthy scenario but in so doing make inculpatory remarks. That court at paragraph 70 held that the use of the Reid technique did not per se render a statement inadmissible.
[51] Similarly the Crown relies on the case of R. v. Martin, 2018 ONSC 1677, another case involving an interview by officer Ashbaugh where the statement was ruled admissible. However, it was held in that case that there were no inducements offered, explicitly or implicitly and as noted at paragraph 9 specifically pointed out that by the end of the interrogation the accused acknowledged that he was facing a first degree murder charge no matter what was said during the interview.
[52] Relied on by the defence in this application is the case of R. v. Davidson, [2017] BCJ No. 2766 in which a statement was ruled involuntary in circumstances where the accused had been advised during interrogation of the differences between first degree murder and second degree murder and manslaughter and the suggestion flowing from the interview was that it represented the accused’s opportunity to avoid the more serious charge. It was held to constitute an improper inducement as in those circumstances the Crown had already determined that second degree murder was the appropriate charge.
[53] Somewhat in a similar vein, in R. v. J.M., [2017] O.J. No. 6902, a statement was ruled involuntary where the interviewing officer had suggested that it was not yet certain whether the accused would be charged with any offence and that anything said during the interview would carry more weight than if said later. In fact there was “slim to none” chance that the accused could talk his way out of a charge and to suggest that he could do so was held to be an implied inducement.
[54] Turning to the circumstances of this case, I think the following to be noteworthy:
• the accused was a 26 year old first offender with no previous police contact experience;
• the accused, whether guilty or not, had gone through what would be a horrifying experience, some 7 ½ hours before being interviewed;
• the accused clearly had sought and obtained legal advice which was obviously to the effect that it would be better to say nothing to the police and despite repeated attempts to exercise that right, the interview continued;
• the accused had been awake since approximately 3:00 a.m. and appears and acts visibly tired, haggard, and upset throughout the interview;
• at points during the interview he is visibly upset, crying, sobbing, sniffling, blowing his nose, burying his head in his hands;
• the extent of his upset is sometimes more evident on the videotape when the officer is out of the room, but the officer admits having observed the accused’s condition while outside the room;
• the 911 call, as it involved Melinda Benko in the early stages, is clearly chocked full of anguish, fear, concern, as to what is happening outside, and concern as to what is happening to her boyfriend, now husband. She is crying, hyperventilating and extremely emotional. It is a conversation that is difficult to listen to. It would have to be even more difficult for the accused to listen to given their relationship. It clearly did, as was intended;
• in my assessment, watching the interview as recorded on the videotape is much more accurate as to the atmosphere during the interview than it is evident from the typewritten transcript. It is evident from the transcript that the accused is a sincere, and intelligent, young man;
• it appears from the transcript, and from his evidence before me, that Detective Ashbaugh is a very experienced and skilled interviewer.
[55] In my opinion this interview contained inducements on the part of the officer made to an accused who, in all of the circumstances, was vulnerable to such inducements and in this way his repeated desire to rely on the advice of counsel to invoke his right to remain silent was overcome.
[56] As the officer aptly put it, this was not a “who done it”, but rather was a “why done it”. The accused raised the prospect of self-defence in his 911 conversation. It was known to those investigating the shooting, and known to Detective Ashbaugh, as referenced by him during the briefing meeting before the interview.
[57] This was not a case in which an officer simply advised an accused of two possible charges and that one was more serious than another. Rather this is a case where in my opinion the officer frequently, and skillfully, implied to the accused that if he chose to exercise his right to remain silent and did not explain why he shot the victim, it would be first degree murder. If he did choose to explain why, it could be second degree murder.
[58] It is not a case where it was made known to the accused that the decision would be made by a Crown attorney, or made by a court. Rather, it was repeatedly said to the accused that the decision would be made by the police based upon what happened here in this interview room.
[59] But in my opinion the implied inducement in this case went further. In the circumstances of this case, there are several instances within the interview that in my opinion constitute an implied inducement in the sense of suggesting to the accused that if you tell us why you shot, you may avoid charges on the basis of self-defence. That was not expressly said. But here the interviewer knew the accused raised the prospect of self-defence moments after the shooting to the 911 dispatcher.
[60] While initially only indicating what first degree murder was and how it was separated from second degree murder, the officer also indicated there were many other possibilities. He also indicated to this accused that in those circumstances he would have been concerned about defending his property and defending his girlfriend. He then essentially says but that’s what I would have done, but if you don’t tell me what was going through your mind, I can’t act on what I would have done. The officer draws a distinction between two possibilities, one an American style vigilante that shoots down and kills a car thief who is trying to get away, or someone that is acting so as to protect his family and property. In a most sincere tone of voice, the officer implores the accused to tell his side of the story in a context within the interview that would suggest that should the accused do so, self-defence may well prevail. Immediately before the accused opens up to the officer he is told “I believe you are a good man, that you are a good person, you’ve got a lovely girlfriend. You’ve got a full life ahead of you”. In my opinion the reference to a full life comment, would be somewhat unusual if it was intended to refer to someone facing a minimum of 10 years in prison and parole for life thereafter for second degree murder.
[61] There is a presumption that people know the law. That presumption is not always true or accurate. This accused is an intelligent young man. He did not testify before me. I am prepared to take judicial notice of the fact that most people understand that acting in self-defence is a defence to a criminal charge, or at least drastically reduces the severity of the outcome.
[62] I conclude that a fair viewing of the contents of this interview, against the backdrop of the case circumstances, shows that there was an implied inducement to the accused to tell the police what they wanted to know so as to achieve an advantage which the interviewing officer gave the appearance of wanting to support. The repeated reference to “defend” and the officer’s explanation as to what would have been important to him, coupled by his inability to believe the accused experienced the same things, unless the accused told him so, all added to the power of the inducement.
[63] In the result, I have at least a reasonable doubt that the accused’s statements were made “without hope of advantage”.
[64] For these reasons, I find the statement to be inadmissible and the Crown application is dismissed.
C. Stephen Glithero J.
Date: June 19, 2018