Her Majesty the Queen v. Stephen Gautreau, 2018 ONSC 5109

COURT FILE NO.: 105-17 DATE: 2018/08/29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Stephen Gautreau

COUNSEL: Michael Carnegie, for the Crown Devin Bains, for Stephen Gautreau

HEARD: July 3, 4, 5, 9, 10 & 11, 2018 Justice: J.C. George

Background

[1] Stephen Gautreau is charged with second-degree murder. His trial commences October 9, 2018.

[2] Mr. Gautreau provided two statements to the police – one before his arrest and one after. The first is essentially the ongoing interaction between Mr. Gautreau and OPP Officers Amlin and Johnston immediately before, during, and after the execution of warrants. This is audio recorded. The second is provided post-arrest and includes an interview in a more formal setting, which is audio and video recorded.

[3] The Crown seeks a pre-trial ruling that Mr. Gautreau’s statements were voluntary. It does not seek to introduce the first, but to simply have it available for cross-examination should Mr. Gautreau elect to testify. It does seek to introduce, for the truth of its content, the second, at least the formal interview portion. Mr. Gautreau takes the position that the Crown has not established beyond a reasonable doubt that his statements were provided voluntarily. He further alleges violations of his rights under ss. 7, 8 and 10(b) of the Canadian Charter of Rights and Freedoms.

[4] The first statement was provided on July 8, 2015. As indicated, Mr. Gautreau was not under arrest at the time. Officers Amlin and Johnston first approached Mr. Gautreau on the street. The purpose was to detain Mr. Gautreau so that two outstanding warrants could be executed – one a general warrant that authorized the seizure of his clothing and the conduct of a medical examination, the other an authorization to seize a vehicle.

[5] Mr. Gautreau was advised that he was a suspect in the murder of Robert St. Denis. This conversation can be broken down into two parts. The first occurs on the sidewalk. During this interaction Mr. Gautreau is advised that he is not detained with the officers offering to him an opportunity to provide a voluntary statement. While it is arguable Mr. Gautreau was detained from the point he is first approached by the officers, they do not formally detain him (or at least advise him that he is) until, according to them, they are satisfied he won’t provide a statement.

[6] The second part of the conversation occurs in three phases: in the police vehicle that is being used to transport Mr. Gautreau; at the Chatham OPP detachment; and at the hospital in London where the warrant is executed. There is no question that he is detained during this period.

[7] The Crown initially sought to introduce this statement as Mr. Gautreau made a comment to the effect of, “I am probably going away for a while”. However, the Crown has now conceded that this statement is sufficiently ambiguous agreeing that it might have been about other behaviour that is not the subject of this proceeding. It does not seek to introduce it but still seeks a voluntariness finding in order to use it should Mr. Gautreau testify or place his character in issue.

[8] The second statement was provided on July 16, 2015, the day of arrest. While a formal interview was conducted and video-recorded at the London OPP detachment, the entirety of the interaction is audio recorded. This spans his arrest, transport, and time at the detachment.

[9] This is the chronology of events on the 16th:

• Mr. Gautreau is arrested at 12:39 pm in Ridgetown, a small village in Chatham-Kent. During the transport from this location to London Mr. Gautreau is allowed to use one of the officers’ cell phones to call counsel. This was not in private and was overheard by everyone in the transport vehicle as it was on speaker phone. Mr. Gautreau was taken directly from this location to London. Unlike the 8th, there was no attendance at the Chatham detachment.
• At 1:56 pm, after arrival in London, Mr. Gautreau was given a second opportunity to speak with counsel. He was not satisfied with this call as it was not with his counsel of choice, Mr. Bains.
• At 6 pm, Mr. Gautreau is given a further opportunity to speak with counsel. He did then speak with Mr. Bains, a call that lasted approximately 34 minutes.
• At 7:04 pm he is interviewed by Officer Amlin. This ends at 8:47 pm. During this interview, while he does not discuss the alleged events specifically, he makes comments that the Crown views as inculpatory and which it would like to introduce into evidence at trial, including:
  • He admits to having a temper, especially if attacked, noting to Officer Amlin that “when somebody comes at me with a fucking weapon I’m goin…I will go off fucking side…the cog doesn’t necessarily set in I’ll tell you why cuz I’ve been in a lot of life ‘n death situations in prison in the penitentiary where I came out on top and where a couple times I thought I was on the receiving end of buying the farm an and I pulled through so then every time I did I built my confidence”. The Crown views this as relevant and probative in light of its theory of the case which is that, upon forcibly entering Mr. St. Denis’ home, Mr. Gautreau was repelled with a weapon but that he ultimately got the upper hand and beat Mr. St. Denis to death.
  • He says to the officer that he does not recognize the name Robert St. Denis, which the Crown says it can prove is false; this essentially an attack upon Mr. Gautreau’s credibility (which it argues it can do even if he elects not to testify).
  • He admits to being a drug dealer, which the Crown argues he has in common with Mr. St. Denis.

Voluntariness

[10] I will first address voluntariness. The Crown must establish beyond a reasonable doubt that any statement made by Mr. Gautreau was voluntary. I must be satisfied that Mr. Gautreau had an operating mind and that his statements were not the product of any threats, promises or inducements. I can quickly dispose of this issue. The Crown has established beyond any doubt that Mr. Gautreau’s statements were voluntary.

[11] Mr. Gautreau did not vigorously contest this issue, focussing more on his Charter challenge. He, however, did not ignore it. He asks that I carefully scrutinize the overall tone and tenor of his interaction with the police and conclude that there is a constant theme of reciprocity. He pointed me to various parts of the transcript that, he says, could be construed as the police offering to discuss the nature of the allegations but only if he gave them information in exchange. A reward if you will. The problem is, this exchange is free flowing, quite often remaining on a particular topic at Mr. Gautreau’s instance.

[12] To the extent there is a level of reciprocity it was largely in relation to each side treating the other with respect, an agreement they came to on a topic introduced initially by Mr. Gautreau. I do agree that a cat and mouse game is going on, but there are no promises or threats. Mr. Gautreau clearly has an operating mind – he knows what he is saying and who he is saying it to. There were no oppressive circumstances. There may have been small doses of police trickery (although this is arguable) but nothing that could “shock the community”. There is nothing that would amount to an inducement, and no evidence that Mr. Gautreau’s will was overcome.

Charter

[13] The central issue is whether, in the course of Mr. Gautreau providing his statements to the police (on both July 8th and 16th), his Charter rights were violated. He alleges violations of ss. 7, 8 and 10(b) which provide that:

7. Everyone has the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure. 10(b). Everyone has the right…to retain and instruct counsel without delay and to be informed of that right.

[14] The Crown’s position is that the July 16th statement should survive Charter scrutiny and that it is not tainted by difficulties with any prior statement. It describes these as distinctive communications, separated by several days and that Mr. Gautreau was provided his rights to counsel and cautioned and actually given an opportunity to speak with counsel before the formal video-recorded interview. In other words, for the purposes of a Charter analysis this is not an ongoing transaction.

[15] The Crown asks that I accept the evidence of each police officer who testified that their approach of Mr. Gautreau on the 8th was not initially a detention but merely an attempt to engage him and see if he would be willing to provide a voluntary statement. The plan was to first canvass the statement, and if (as they expected) he declined, they would transition to an investigative detention to execute the warrants.

[16] He was not read his rights to counsel or cautioned until after this transition. That is, after the officers were satisfied he was not going to provide a statement with their focus then moving to the warrants.

[17] With respect to the statement on the 16th, the Crown does not seek to introduce or rely upon any of the transport communications. It seeks only to introduce the formal video recorded statement.

[18] It characterizes the decision to allow the speaker phone call with counsel as simply a helpful gesture. It points out that it was Mr. Gautreau who asked to give his counsel a “heads up”. It was not suggested by the officers or encouraged in any way. In fact, they were quite up front in advising Mr. Gautreau that such a call could not be in private and that it was always known to him that the call was on speaker. They cannot explain why Mr. Gautreau did not immediately advise his counsel that their call was on speaker. He was told in advance such a call could not be in private; he knew during the call that it was not in private; and he knew it was on speaker. The police officers did not act in bad faith.

[19] With respect to the video recorded interview, the Crown suggests that any problematic references to bad character and his criminal history can be edited out, preserving that which is probative. It strongly disagrees with Mr. Gautreau’s position, which is the police intention all along was to keep him engaged in conversation on a wide range of topics in the hope he would ultimately or inadvertently say something inculpatory. It describes this ongoing dialogue as being largely directed by Mr. Gautreau and that the police were not meaningfully exploring anything other than what Mr. Gautreau himself was interjecting into the conversation. In other words, the police were not trying to elicit a statement, which implies a level of manipulation.

[20] The Crown argues that there was no violation of s. 10(b) in the police overhearing and recording Mr. Gautreau’s phone conversation with counsel. It contends that the fact counsel, Ms. Zbarsky, did not appreciate she was on speaker phone is not for the police to answer for given Mr. Gautreau’s knowledge and participation in this event. It takes issue with any suggestion the police orchestrated this as part of some grand scheme to gain an investigative advantage.

[21] It concedes that the police must refrain from eliciting (or causing to be elicited) evidence from an accused post-arrest and prior to effecting rights to counsel. However, this does not mean the police must refrain from any communication. It asks that I closely scrutinize the entire conversation which will clearly reveal this as an accused directed discussion. It argues that should I conclude a breach lies in the July 8th statement that it should not be transferrable to the July 16th video recorded interview.

[22] In addition to there being no breach of the “hold off” requirement, it submits that any determination respecting the implementation of Mr. Gautreau’s right to counsel should be fact and context driven. And in so doing I should not focus solely on police conduct but also on Mr. Gautreau; what he knew, understood, said and did.

[23] After carefully reviewing the transcripts, audio and video recordings and after considering counsel’s submissions, I find there to be several violations of Mr. Gautreau’s right to counsel. These include:

• The time it took for the police to advise Mr. Gautreau of his rights and give him his caution on July 8th. Mr. Gautreau was detained throughout. From the point he was approached by the police to when he was sent on his way in London after the warrant’s execution. Period. The police officers knew he was – they acknowledge he was not free to leave. And it is clear from the recordings and transcript that Mr. Gautreau was aware he could not leave. He was at least suspicious of the officers who told him he was, which was misleading. He therefore should have been provided the informational component of his rights at that earliest point. There is, in these circumstances, no distinction between the officers’ efforts to gain a voluntary statement and the detention for the purposes of executing the warrants.
• Again on the 8th, at the Chatham detachment, the police had a responsibility to wait a reasonable amount of time to allow a call back from Mr. Gautreau’s counsel. The police did the correct thing in first attending at this detachment (as opposed to travelling directly to London which was going to take in excess of an hour), and attempting to facilitate a call to counsel. This is a violation of the implementational component of the right to counsel. While a call was placed, they did not wait a sufficient amount of time for a return call. To be clear, I do not find a breach in the fact that a part of this call is overheard (when Mr. Gautreau briefly steps out of the privacy booth), but in the carelessness in which the officers approached the right to counsel, in particular the without delay component. There was no urgency to leave for London. The warrant was not imminently expiring and no appointment had been made with hospital officials.
• I find a violation in the transport from Chatham to London on the 8th. It is clear at this point that Mr. Gautreau wants to speak with counsel and has attempted to speak with counsel. It was therefore incumbent on the police to “hold off” and, while there is a certain level of loquaciousness on Mr. Gautreau’s part, the officers do proceed to ask some pointed questions about Mr. St. Denis.
• I find a breach in the interaction between the Doctor assisting in the execution of the warrant and Mr. Gautreau. I find that the Doctor had either been provided a copy of the ITO in advance of her examination, or that Officer Amlin advised her of some particular characteristics of the person they suspected in the murder of Mr. St. Denis. One of these two things happened. Likely the latter as Officer Amlin testified that he did not provide her a copy of the ITO and did not remember advising of any of the suspect’s physical characteristics. That being the case the Doctor was clearly acting as a police agent which then required that the police once again provide Mr. Gautreau with his rights and caution. They did not.
• On July 16th there were several breaches. Mr. Gautreau was not provided an opportunity to meaningfully speak with and instruct counsel. It struck me that the officers did not have a good sense that this was to occur without delay. In fact, Officer Johnston described their obligation as one they had to perform as soon as practicable, which is not the correct standard. This breach rests in the decision to not attend at the Chatham OPP detachment immediately after arrest, which was 34 kilometres away, and to travel to London which was over an hour away. There is no way to square this decision with the requirement that one’s rights be implemented without delay. There was some suggestion that because London was the ultimate destination, and because Chatham was somewhat out of the way (as it was not in the same direction), this would have been inconvenient. But again, in light of the ‘without delay’ component of this right, this is hardly a satisfactory explanation.
• In a separate decision, on an unrelated motion in this matter (released August 21), I address the van ride from the place of arrest to London on the 16th, and the police decision to allow Mr. Gautreau to place a call to his counsel in the presence of the officers. I have already determined that there was no bad faith in this decision; I truly believe their intention was to accommodate Mr. Gautreau. However, if they had done what they should have done and attended at the closer detachment to facilitate contact with counsel, this accommodation would have been unnecessary. It’s not just that. Having made the decision to proceed directly to London there were then three options available to the police: allow the call to take place and not have it on speaker; they could have not offered their cell phone to Mr. Gautreau at all; or, they could have at least informed counsel immediately upon placing the call on Mr. Gautreau’s behalf that it was not in private and was going to be on speaker and to not simply sit by and leave it to Mr. Gautreau. I cannot understand why this call needed to take place at all, and if it did why it had to be on speaker. Why couldn’t Mr. Gautreau simply hold the phone to his ear and speak directly into it? Officer Amlin did not provide a good explanation for this. The fact the police thought it was okay to listen in on this call is bad enough, but it is aggravated by the recording.
• There is a further breach, again on the 16th, after arrival at the London detachment. At 1:55 pm a call was placed to Mr. Bains who was not available. I was told that Mr. Gautreau did speak to Ms. Zbarsky but that at the call’s completion he made it abundantly clear to the officers that he was not satisfied with that. He wanted to speak with Mr. Bains. It is not until 6 pm that Mr. Gautreau in fact speaks to him, a call that lasts 34 minutes. Officer Amlin was unable to explain this delay or offer any insight into why it had taken this long. One might argue that, because it’s Mr. Gautreau’s onus on a Charter application, that he bears the burden of explaining his attempts to place that call during that four hour wait. I disagree. Mr. Gautreau is in police custody. Officer Amlin is there throughout and in complete control of Mr. Gautreau’s ability to make a call. He participated in the arrest, is with Mr. Gautreau during the transport, and is ultimately the officer who interviews him. It is the officer’s obligation to not just inform him of his right to counsel, but to ensure it is implemented “without delay”. Officer Amlin testified on what was essentially a blended hearing that addressed both voluntariness and the Charter issues raised by Mr. Gautreau, who can rely on his testimony as much as the Crown can. And the evidence before me, and the testimony upon which Mr. Gautreau relies, satisfies me on a balance of probabilities that Mr. Gautreau was not able to speak to and instruct counsel without delay.

[24] I pause to note that, yes, much of what Mr. Gautreau says to the police is the result of the conversational nature of these exchanges and his apparent inclination to want to talk. I note also that some of the topics discussed are at Mr. Gautreau’s instance. And in that sense, it could be argued that the police were not attempting to elicit information and that what Mr. Gautreau did convey was in the nature of spontaneous utterances.

[25] While this is arguable, I do not accept it. It runs contrary to the admitted police efforts to obtain a voluntary statement on the 8th. It runs contrary to the ultimate decision to sit him down in an interview room and video record a formal statement. It runs contrary to what was a concerted effort to build a rapport with Mr. Gautreau. That is not to say there is anything wrong with rapport building, and the police did nothing objectionable in that respect, but why else would they do that if not to hopefully garner a statement from him, even after being told he won’t talk unless and until he speaks to counsel. To elicit a statement should be interpreted broadly, meaning we shouldn’t limit its meaning to the intentional act of drawing out a statement, but to consider whether the police actions are causally connected to the statements made by Mr. Gautreau. Here they clearly are.

[26] Counsel spent a considerable amount of time addressing the issue of tainting; the idea that problems with the July 8th statement pollute the July 16th statement. Given my findings with respect to each statement, there is no need to spend much time on this. There are breaches throughout which diminishes the Crown’s argument that, to the extent there were problems on the 8th (or earlier on the 16th), these were ameliorated by the police before the formal interview.

[27] Having said that, should I be wrong, I am of the view that there are sufficient temporal and thematic links from statement to statement that result in a tainting of the entire exchange between Mr. Gautreau and Officers Amlin and Johnston.

Section 24(2)

[28] Should the statements be excluded pursuant to s. 24(2) of the Charter? The basic rule is this: once a violation of an individual’s Charter rights has been found, the evidence obtained through the violation must be excluded if its inclusion would bring the administration of justice into disrepute. In making this determination I must assess three things:

• Seriousness of the Charter-infringing State conduct – the focus here is on the seriousness of the breach and nature of the police conduct that led to the violation (including an analysis of whether it was deliberate or willful, and whether the officers were acting in bad faith).
• Impact on the Charter-Protected interests of the accused – this requires an assessment of the impact of the breach on the accused (including a consideration of the level of intrusiveness and the impact on one’s right against self-incrimination).
• Society’s interest in an adjudication on the merits – this requires a focus on the reliability of the evidence in light of the Charter violation.

[29] While I do not find bad faith, this does not mean the infringing conduct is not serious. In this case I have found there to be multiple breaches occurring over the course of two days and it strikes me that to find these many violations but admit the evidence nonetheless, would be to condone a certain level of carelessness with respect to implementation and the ‘without delay’ requirement. These violations are serious.

[30] There is, in my view, an element of intrusiveness to these violations. Isolating on any one of these breaches may lead to a conclusion that they are minor, but when you look at them in its totality there is, while not bad faith, an unseemly nature to them. For example, while trying to be helpful, it is the height of invasiveness to not just listen in on a privileged communication, but to record it. Even if well meaning, this is inexcusable.

[31] Lastly, while there is always a societal interest in having criminal cases decided on its merits, the evidence that was elicited and which the Crown seeks to introduce (or have available for cross-examination), is not particularly reliable. In my view the statements the Crown would like to introduce are quite ambiguous and the true meaning behind them uncertain. There is a significant risk that the proposed statements would be misused. I note also that the Crown’s case does not rise or fall on the admission of this evidence. There is other evidence and this trial will proceed.

[32] I find that the ongoing nature of these breaches must result in exclusion. To do otherwise would bring the administration of justice into disrepute.

Probative Value v. Prejudicial Effect

[33] In the event I am wrong in my Charter analysis, I wish to conclude by addressing the prejudicial impact of the proposed evidence.

[34] If I understand the Crown’s position correctly it is that, first, while Mr. Gautreau may not have been directly addressing the allegations against him, it is probative nonetheless in that the conduct he describes (i.e. protecting himself against others by going “fucking offside”) is consistent with the Crown’s theory that he broke into Mr. St. Denis’s home and overcame him when Mr. St. Denis attempted to use a weapon.

[35] Second, Mr. Gautreau’s acknowledgement that he deals drugs is consistent with the Crown’s theory that the drug sub-culture is a milieu shared by Messrs. Gautreau and St. Denis.

[36] And third, the Crown contends that it should be permitted to attack Mr. Gautreau’s credibility, even if he doesn’t testify, by proving that Mr. Gautreau’s assertion that he did not know Mr. St. Denis was a lie.

[37] Let me first say that, apart from the Crown’s position that the above is probative, I do not believe that a form of vetting would be appropriate in this case. I have on several occasions now listened to the recordings and they are replete with information the jury should not hear. It would be near impossible to isolate certain things within the statement while maintaining its proper context and coherence. I agree with Mr. Bains who described the statements as having “slivers of probity in oceans of prejudice”.

[38] Mr. Carnegie ably advanced his position in support of admission, but what he is attempting to do is essentially introduce evidence that establishes Mr. Gautreau’s criminality and propensity to commit the act the Crown alleges he committed. I appreciate that Mr. Carnegie takes issue with this characterization, but what he is proposing is that the jury hear evidence that would in a way symbolically speak to the allegations before the court. It is as if Mr. Gautreau was speaking code to the police, and that it should be open to the jury to decipher it. This would be far too dangerous.

[39] There is simply no way to determine that when Mr. Gautreau speaks of going “offside” or lashing out at others that he is speaking of the alleged events, which means it could only operate as a symbolic demonstration of other behaviour or speak to his propensity for violence.

[40] To allow this evidence would be inconsistent with the truth-seeking function of this court and could only lead to a significant prejudice that could not be remedied with a limiting instruction. Misuse is not just likely, it is assured. Given my decision on the Charter application this is a moot point, but had I found there to be no breaches or determined that exclusion was not the proper remedy, I would have excluded these statements nonetheless.

Conclusion

[41] In the result I find that:

• Mr. Gautreau’s statements to the police on each of July 8th and July 16th, 2015, were voluntary.
• Mr. Gautreau’s s. 10(b) Charter rights were violated on each date.
• The cumulative effect of these breaches warrants exclusion pursuant to s. 24(2).

[42] All statements are inadmissible.

“Justice J. C. George” Justice J.C. George Released: August 29, 2018