R. v. Ravyn Colley, 2018 ONSC 892

COURT FILE NO.: CR-16-40000470

DATE: 20180306

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RAVYN COLLEY

Applicant/Accused

A. MacPherson, and K. Batorska, for the Crown

L. Riva, and S. Biesbroek, for the Applicant/Accused

HEARD: May 9, 10, 11 and 12, 2017

Ruling on Admissibility of Ms. Colley’s Statements to Police

Ducharme J.

Overview of Application

1Ms. Colley is charged with the first-degree murder of his son Jaelin Colley. She is co-accused with Jaelin’s father, Joel Roberto. Following her arrest for failure to provide necessaries of life, Ms. Colley gave two videotaped statements to the police on October 13, 2014 and October 16, 2014. The Crown is seeking to have the video-taped statements ruled voluntary for the purposes of cross-examination.

2The defence submits that Ms. Colley’s arrest was premature and a violation of her rights under s. 9 of the Charter. Further, Ms. Colley was taken to court as required by s. 503 of the Criminal Code. The defence also submits that the taking of the statement on October 13, 2014 was taken in a way that violated Ms. Colley’s right to silence. First, the emotional state of Ms. Colley—exacerbated by the circumstances of her arrest and detention—caused interrogation tactics to overbear her will. Second, the interrogators took full advantage of Ms. Colley’s concern for her other son by using language that implied it would be beneficial to speak to them. Third, the manner in which the interrogation was conducted undermined the legal advice Ms. Colley had received. Finally, Ms. Colley was not adequately informed of the legal jeopardy that she was facing. This failure to properly inform Ms. Colley of her jeopardy, in addition to being a violation of section 10(a) of the Charter, undermined her right to counsel and violated section 10(b).

3As for the further statement taken on October 16, 2014 in a courtroom at College Park courthouse, I excluded it because I was not satisfied that Ms. Colley’s right to consult counsel in private was respected. Having excluded the statement, I shall rely on my oral reasons and need not consider it any further in these reasons.

4I will first outline the factual context and then consider the various issues raised by the defence.

Factual Context

5Ms. Colley is charged with First-degree murder that is alleged to have occurred on or about October 13, 2014 at 1125 Finch Avenue East, in Toronto. It is alleged that on or about October 13, 2014, the Applicant and her common-law spouse, Joel Roberto, murdered their son, Jaelin Roberto-Colley. At the time of his death, Jaelin was 4 years and 9 months old.

6On October 13, 2014, at 2:09 a.m., Mr. Roberto called 9-1-1 and asked to be connected with the ambulance operator. He told the operator that his 4 year-old son had fallen down the stairs 2 days prior and that he had fallen down 8 or 9 stairs. During the call, he told the operator that Jaelin was breathing.

7Firefighters were the first to arrive on scene at 2:13 a.m. Mr. Roberto directed the firefighters to Jaelin, who was lying on his back on the floor in the middle of the living room. According to the firefighters, Jaelin had no pulse. The firefighters began CPR. They attempted to insert an airway but Jaelin’s teeth were clenched shut. The firefighters also noted that Jaelin was very cold to the touch and that blood was pooling on his back.

8The EMS team arrived on scene at 2:23 a.m. and assumed treatment of Jaelin. Ms. Colley was not present while firefighters and EMS were working on Jaelin. Firefighters only noticed that Ms. Colley was present in the house as they were getting ready to leave.

9Jaelin was pronounced dead at 2:38 a.m. The paramedics recorded his temperature in the ambulance to be 25 degrees Celsius. At the subsequent postmortem examination of Jaelin the immediate cause for death was attributed to aspiration of gastric contents complicated by blunt impact head trauma. The other significant condition contributing to death, but not causally related to the immediate cause, was malnutrition.

10At approximately 2:53 a.m., the Applicant was arrested for failing to provide necessaries of life. Upon arrest, the Applicant was advised of the right to counsel. The Applicant advised that she did not have a lawyer and that she wished to speak to counsel. Ms. Colley spoke to Duty Counsel at 5:35 a.m. for a period of 12 minutes.

11On October 13, 2014, Ms. Colley was interviewed by Det. Johnson and P.C. Sit at 7:05 a.m. to 7:10 a.m. Det. Johnson said he would like to get a statement and Ms. Colley said, “I am going to choose to remain silent and that is it.” She also said that Duty Counsel had advised her that her son was dead. This interview was not recorded. That same day Ms. Colley was interviewed by Det. Haggett and by D.C. Kempster from 1:18 p.m. to 2:40 p.m. and that interview was videotaped.

12The Crown called various witnesses who were cross-examined by the defence. Ms. Colley did not testify on the voir dire.

Violation of s. 9 – Premature Arrest

13The Applicant submits that her arrest by Sgt. Mayers on the morning of October 13, 2014 was premature. The Applicant submits this resulted in her being told of her son’s death by Duty Counsel and her being unable to sleep after receiving that news.

14Section 495(1)(a) of the Criminal Code authorizes a peace officer to arrest without a warrant a person who has committed an indictable offence or is about to commit an indictable offence. The Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Additionally, those grounds must be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Furthermore, an arrest which is lawfully made does not become unlawful simply because the police intend to continue their investigation after the arrest nor does the arrest thereby constitute a violation of section 9 of the Charter.

15I find that Sgt. Mayers had the following subjective grounds for the arrest of Ms. Colley:

(1) Information received that the call was for a child who had fallen down the stairs two days earlier.

(2) Information received from Fire Captain Lee of the Toronto Fire Service (TFS), including that when fire fighters arrived on scene, they knocked three times at the door and there was no immediate answer; that Mr. Roberto, eventually opened the door and pointed to the body of a child lying on the floor in the living room area; that the body was cold, stiff and appeared to have blood pooling in the lower extremities; that Mr. Roberto stated “I should have taken him to hospital”.

(3) Information received that Mr. Roberto’s wife or girlfriend and a young child were still in the home.

(4) When Sgt. Mayer re-attended at the home, the door was unlocked by Ms. Colley who asked “where is my son” that the utterance seemed rehearsed and lacked an emotional response.

16Based on the information received, Sgt. Mayers believed that a child had fallen down the stairs some days prior, that no medical attention was sought and that the parents were both in the home. This constituted sufficient subjective reasonable and probable grounds to arrest Ms. Colley for failing to provide the necessaries by failing to obtain medical assistance for Jaelin after his fall.

17Additionally, the following objective grounds for the arrest existed:

(1) A call was received by emergency services for a child that fallen down the stairs two days prior.

(2) The child was found to be cold, in rigour mortis and blood pooling was present.

(3) Both parents were present in the home.

(4) No medical attention was sought for the child earlier.

(5) The child was pronounced dead on the scene.

18The foregoing formed sufficient reasonable and probable grounds to arrest both parents for failing to provide the necessaries based on their failure to obtain medical assistance after the fall.

19The Crown submits that the arrest of the Applicant was lawful and based on reasonable and probable grounds. As such, there is no breach of section 9 of the Charter.

Failure to Bring Ms. Colley to Court Within 24 Hours

20Section 503 of the Criminal Code requires that all arrested persons, if not released by the police, be taken before a justice within 24 hours of arrest, or as soon as possible if a justice is not available. I reject The Crown concedes that the Applicant was not brought before a justice until October 14, 2014, more than 24 hours after her arrest and this constitutes a violation of her rights under s. 9 of the Charter.

21However, the Crown further submits that this was a freestanding breach of the Applicant’s section 9 right that resulted in no prejudice to the Applicant. It is unlikely that the Applicant would have had a bail hearing on October 13, 2014. In fact, the Applicant was not prepared to address bail on October 14, 2014, the day she did appear before a justice.

22I note that October 13, 2014 was the Thanksgiving holiday and the Courts were closing at noon that day. But I do not accept the suggestion that either Det. Haggett or D.C. Kempster conducted the interview either knowing or intending that this would prevent Ms. Colley from getting to Court that day. I also note that Ms. Colley got into Court 7 hours beyond the 24-hour deadline. However, I do agree that, while this was a breach of Ms. Colley’s s. 9 rights, it did not result in any prejudice to Ms. Colley. If she had been taken to Court on October 13, 2014, she would have been in no position to have a bail hearing and her case would have been remanded. While I will consider the fact of this Charter violation should I find any other Charter violations it does not by itself require the videotaped interview be excluded and I do not understand the Applicant to be requesting any other relief.

Violation of Ms. Colley’s Right to Counsel

23In her notice of application, Ms. Colley has submitted that her right to counsel of choice was breached on October 13, 2014, arguing that she was never provided with a list of private lawyers to contact and that she asked to call a family member to contact a lawyer but that she was refused. The Applicant has submitted that it was seven hours after the Applicant’s Duty Counsel call that she was interrogated and that she had no other contact with counsel prior to the interrogation when she requested it.

24Upon arrest at 2:53 a.m., the Applicant was advised of her right to counsel. The Applicant advised the arresting officer that she did not have a lawyer and in response to the question “do you wish to call a lawyer now”, she replied that she did. The arresting officer then explained that the Applicant could speak with any lawyer she chose and explained Duty Counsel services.

25When Ms. Colley was booked, at approximately 4:13 a.m., the following exchange took place:

BOOKING OFFICER: Do you understand your rights to counsel?

COLLEY: What’s that mean?

BOOKING OFFICER: Do you understand that you can speak to a lawyer?

COLLEY: [nods affirmative]

BOOKING OFFICER: Do you understand that you can speak to any lawyer that you wish?

COLLEY: No, I didn’t know that.

BOOKING OFFICER: Do you know that now?

COLLEY: Yeah.

BOOKING OFFICER: Do you have a lawyer that you would like to talk to?

COLLEY: No.

BOOKING OFFICER: Would you like to talk to Duty Counsel?

COLLEY: Sure.

BOOKING OFFICER: Do you know what Duty Counsel is?

COLLEY: No.

BOOKING OFFICER: Duty Counsel is a lawyer that can provide you with free legal advice over the phone right now for free. There is a phone number that we can put you in contact with Duty Counsel, in fact, we will phone them and they will phone you back. You will be placed in a room and you can speak to them… Do you understand what Duty Counsel is now?

COLLEY: Yes.

BOOKING OFFICER: Would you like to speak to Duty Counsel?

COLLEY: Yes.

BOOKING OFFICER: Officer would you put her in contact with Duty Counsel…

26Ms. Colley spoke to Duty Counsel at 5:35 a.m.

27It appears from the foregoing that Ms. Colley understood her rights to counsel, including her right to counsel of choice and Duty Counsel. At no time did the Applicant mention the name of a specific lawyer nor say she wanted to speak to private counsel. In fact, the Applicant confirmed that she did not have counsel of choice and unequivocally confirmed that she wishes to speak to Duty Counsel. The police were under no obligation to provide the Applicant with a list of private lawyers once the Applicant asked to speak to Duty Counsel.

28The Applicant has failed to provide an evidentiary foundation for her assertion that she asked to call a family member to contact a lawyer but was refused. During her statement the following exchange occurred:

COLLEY: When would I even be able to call my dad?

HAGGETT: You can call your dad at any time.

29Ms. Colley did not request to call her father to contact a lawyer and no such request was refused.

30Similarly, there is no evidentiary foundation for Ms. Colley’s assertion that she had requested to speak to Duty Counsel again but was refused prior to the interrogation.

31The Applicant also argues that the advice Ms. Colley received from Duty Counsel was inadequate in the circumstances. Ms. Riva is not specific about how Duty Counsel failed to properly advise Ms. Colley. I would note that Ms. Colley never complained about the advice that she had received from Duty Counsel and never asked to speak to another lawyer. Moreover, Ms. Colley did not testify as to any shortcomings in the advice she received from Duty Counsel.

32There was no violation of Ms. Colley’s right to counsel under s. 10(b) of the Charter on these grounds.

Failure to Properly Advise Ms. Colley of the Jeopardy She was Facing

33The Applicant submits that the police should have informed her of the fact that she was in jeopardy of being charged for a culpable homicide, either murder or manslaughter. Their failure to do so violated Ms. Colley’s rights under s. 10(a) and 10(b) of the Charter and also means that Ms. Colley’s statement was not voluntary.

34The Applicant points to the following factors that support the conclusion that Mr. Roberto should have been cautioned with respect to the culpable homicide of her son. First, there are the extent of injuries to Jaelin’s body and the fact that he was manifestly emaciated. Det.-Sgt. Gray testified that the explanation that Jaelin had fallen down the stairs two days previously did not make sense. Second, the investigators had reason to believe that Mr. Roberto was not being truthful about what had happened to his son. He told the 9-1-1 operator that Jaelin was still breathing but when first responders arrived shortly thereafter Jaelin was cold to the touch and exhibiting signs of lividity and rigor mortis. Third, the Applicant points to the involvement of Dt. Sgt. Gray of homicide on October 13, 2014.

35I reject the foregoing arguments. I accept the evidence of Det.-Sgt. Gray that, while she had suspicions, they did not rise to the level of reasonable and probable grounds to charge Mr. Roberto with murder or manslaughter. The injuries, the physical condition of Jaelin, the circumstances of his death could be explained by illness, by a fall or accident, and did not necessarily amount to an intentional killing.

36I find that Mr. Roberto’s jeopardy did not change until October 15, when Det.-Sgt. Gray formed the requisite reasonable and probable grounds, which occurred after the autopsy. At that stage, Det.-Sgt. Gray had a cause of death, had information provided by the Applicant and Ms. Colley during their interviews on October 13, 2014, had information from the officers involved in the investigation and formed the necessary reasonable and probable grounds to charge the parents with first-degree murder, which occurred on October 16, 2014.

37At the time of the interviews on October13, 2014, the Applicant was not under genuine suspicion for murder and thus the caution she received was adequate to allow her to meaningfully decide whether to exercise his right to counsel and right to silence. Therefore, I am not persuaded that the videotaped statement was not voluntary on this basis or that the failure to caution him that he was facing charges of murder or manslaughter violated his rights under s. 10(a) or s. 10(b) of the Charter.

Undermining the Legal Advice Ms. Colley Had Been Given

38The Applicant submits that the manner in which the interrogation was conducted undermined the legal advice she received in three ways: First, despite her inquiries about going to Court, Ms. Colley was not taken to Court. Second, that Det. Haggett took over the role of counsel by telling Ms. Colley what was going to happen. Third, the limited advice that she got from Duty Counsel could not cover the issue of what would happen to Treydyn, her other son which had come up in the interview.

39I can deal with this briefly. First, it is clear from the interview that Ms. Colley had a clear understanding of her rights, particularly of her right to decide to give a statement to the police or not. I have already ruled that the failure to get Ms. Colley to Court was a violation of s. 9 of the Charter. But it cannot be reasonably said that this undermined the advice that Ms. Colley had received from Duty Counsel. Second, Det. Haggett did not take over the role of counsel when she explained to Ms. Colley what would happen when she got to Court. Det. Haggett was simply providing accurate information as to the process after Ms. Colley had indicated that this was her first contact with the legal system. Third, there is no evidence that Ms. Colley raised the issue of Treydyn with Duty Counsel and while he was mentioned in the interview this did nothing to undermine the legal advice Ms. Colley had been given or, for that matter, the voluntariness of the statement.

Voluntariness of October 13, 2014 Statement

40The Applicant submits that her emotional state exacerbated by the circumstances of her arrest and detention caused interrogation tactics to overbear her will. The Applicant also submits that the police took full advantage of Ms. Colley’s concern for her other son by using language that implied it would be beneficial to speak to them.

41I find that throughout the course of her interaction with persons in authority, at no time prior to or while providing the statements were threats, promises or inducements made by any police officer to the Applicant, nor was there any police trickery such as would render the statements involuntary, nor did the police act in a manner which would break down the Applicant’s operating mind or undermine her right to silence.

42Ms. Riva suggests that Ms. Colley had been “worked over” by Det. Johnson. I reject this submission as unfounded. Det. Johnson said he was with Ms. Colley for only five minutes and that he did not discuss the case with her or confront her with the evidence. There is no evidentiary basis to support that Ms. Colley was “worked over”. There is also no basis to conclude that anything happened during this five minute interaction that would render the subsequent statement involuntary.

43The Applicant complains that she repeatedly stated during the interview that she did not want to make any statements. And that despite her refusal to speak, the officers persisted in questioning the Applicant. But as the Supreme Court noted in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 the right to remain silent does not mean that a detainee has the right not to be spoken to by the police. The Court in Singh recognized the importance of police questioning in the fulfillment of their investigatory role. It cannot be maintained that the police did not have a compelling and legitimate reason to speak to Ms. Colley.

44The police were at times persistent in questioning Ms. Colley but I find that at no time did their conduct approach the point of being oppressive or aggressive enough to deprive her of the ability to choose whether or not to speak to them. It is also true that Ms. Colley became quite emotional at certain points in the interview. But each time this happened, Ms. Colley calmed down relatively quickly and regained her composure.

45As for the operating mind requirement of the confession rule, the Supreme Court has stated that this requirement does not imply a higher degree of awareness than knowledge of what the accused is saying and that she is saying it to police officers who can use it to her detriment. This is the standard of limited cognitive ability. I find that Ms. Colley not only understood the consequences of what she was saying, but also that she was saying it to people who could use it to her detriment and that she understood her rights and the advice she had received. This is amply demonstrated by the following passages of the videotaped interview:

HAGGETT: Okay. Um, so what happened?

COLLEY: Isn’t that asking me for my statement?

HAGGETT: Pardon?

COLLEY: That’s asking me for my statement.

HAGGETT: Well, it’s all, it’s all part of a statement. It’s not like we stop doing the one part and then we go to the next one. I, I mean, it’s just your opportunity to let us know what happened to Jaelin. I, I, I’ve seen the pictures of what he looks like. But I’d like to know how he came to be in that state. I mean, this is obviously an opportunity for you to help yourself. I mean, if, if nothing –

October 13, 2014 statement at lines 1389-1404

COLLEY: Cause I don’t know if you’re like that, but I’m just saying. Because at the end of the day… I have to look out for myself, too… Okay, and yes, I also have to look out for Jaelin, and that is why I would rather talk with a lawyer on my side, so then when you guys are talking then I do know the right words to say… So then if I do say something that can be held against me, and that can keep me here longer, then – I would like to know.

October 13, 2014 statement at lines 1427- 1448

COLLEY: … if I had to explain the fall, then I’m giving you my statement… In which can be used against me. Because then you guys -…..

October 13, 2014 statement at lines 1720-1727

COLLEY: I’m not gonna continue on though, ‘cause I know that’s what you’re trying to do, and that’s… what I mean, I’m not… getting coerced. I’m smarter than that… I’m not getting coerced into stating if – I know, but like you could read exactly what you just said out to me. Like that’s a, that’s as far as I’m going right there.

October 13, 2014 statement at lines 1868- 1881

COLLEY: And I’m not even saying that just to be mean, like I, I feel that, w – how much I’ve said already should be enough for you… And like any other questions is just prying, ‘cause like to – I, I have to relive this in ce- in the cell… Yeah, ‘cause i.. just went against.. any counsel that I would have had.

October 13, 2014 statement at lines 2882-2908

46Based on the foregoing, I find that the Applicant had full knowledge of what she was saying and that she was saying it to police officers who could use it to her detriment. I find that Ms. Colley chose to speak to the police with an operating mind and that her statement was voluntary.

Conclusion

47For the foregoing reasons, I have concluded that the video-taped statement of Ms. Colley on October 13, 2014 is voluntary and did not involve any violations of either s. 10(a) or s. 10(b) of the Charter. Therefore, I shall not exclude them from evidence in this trial and the Crown may use them for the purposes of cross-examination of Mr. Roberto. I have found a minor violation of s. 9 relating to the failure of the police to get Ms. Colley before a Court within 24 hours but would not grant any remedy with respect to this.