COURT FILE NO.: CR-16-40000470
DATE: 20180306
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOEL ROBERTO
Applicant/Accused
A. MacPherson and K. Batorska, for the Crown
K. Scott and C. Rudnicki, for the Applicant/Accused
HEARD: May 16 and 17, 2017
ruling on admissibility of mr. roberto’s statements to the police
Ducharme J.
Overview of Application
[1] Mr. Roberto is charged with the first-degree murder of his son Jaelin Colley. He is co-accused with Jaelin’s mother, Ravyn Colley. Following his arrest for failure to provide necessaries of life he made a number of statements to the police: he answered some questions while seated in a police car; he had 5 unrecorded conversations with the police and then had two video-taped conversations with the police. The Crown is seeking to have the statements in the police car and the video-taped statements ruled voluntary for the purposes of cross-examination. The defence makes no submission with respect to the utterances made in the police car. However, they argue that the video-taped statements are not voluntary because of prior non-recorded interactions with the police and should be excluded on the basis that because Mr. Roberto was not properly advised of his jeopardy this makes the statements involuntary and violates s. 10(b) of the Charter. The Crown called various witness who were cross-examined by the defence. Mr. Roberto did not testify on the voir dire.
Factual Context
[2] Mr. Roberto 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 his common-law spouse, Ravyn Colley, murdered their son, Jaelin Roberto-Colley. At the time of his death, Jaelin was 4 years and 9 months old.
[3] On October 13, 2014, at 2:09 a.m., Mr. Roberto called 911 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.
[4] Firefighters were the first to arrive on scene at 2:13 a.m. The Applicant 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. Mr. Roberto made a number of utterances to the firefighters.
[5] The EMS team arrived on scene at 2:23 a.m. and assumed treatment of Jaelin. Mr. Roberto made a number of utterances to the paramedics.
[6] Jaelin 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.
[7] At approximately 2:40 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 he did not have a lawyer and that he wished to speak to counsel. The Applicant made a number of utterances after he was placed under arrest, which utterances were heard and noted by PC Kennedy, and which were recorded on an in-car video. He was brought to 32 Division, paraded and searched. He was then placed in a 5’x5’ interview room, without handcuffs.
[8] Mr. Roberto spoke to Duty Counsel and was advised not to say anything to the police. Detective Johnson and P.C. Sit had contact with Mr. Roberto on five separate occasions. The first interaction was from 6:25 to 7:00 a.m. when Mr. Roberto began to sob uncontrollably although he did say that his lawyer did tell him not to say anything. The second interaction was from 7:18 to 7:38 a.m. when Mr. Roberto again cried and said that he felt like killing himself but that he would not do so because he has another son. The third interaction was from 8:10 to 8:40 a.m. Dt. Johnson brought him some water and escorted him to the washroom. He cried again when he was returned to the interview room. He declined to make a statement saying that he did not want to betray Ravyn Colley. The fourth was from 9:45 to 9:50 a.m. when Mr. Roberto asked to speak to Duty Counsel again at 9:45 a.m. and was given the opportunity to do so at 10:30 a.m. when Duty Counsel called back. The fifth interaction was from 10:50 to 11:05 a.m. when Mr. Roberto was then asked again to make a statement and he declined to do so saying he wanted to remain silent.
[9] Det. Johnson referred to these interactions as pre-interviews and testified that he was trying to build a rapport with Mr. Roberto in order to persuade him to make a statement. None of these interviews were recorded. Det. Johnson agreed that it was important to record interviews but explained that he had forgotten to bring his audio equipment with him.
[10] At approximately 3:01 p.m., the Applicant was interviewed by Det. Haggett and DC Kempster. The Applicant was re-advised that he was under arrest for failing to provide necessaries of life and of his right to counsel. The Applicant confirmed that he had spoken to Duty Counsel. The Applicant was also advised that he was not obligated to say anything unless he wished to do so and that whatever he said may be given in evidence. The interview, which was video recorded, concluded at 3:48 p.m. After the interview was concluded, the Applicant asked to call his sister, Jennifer Roberto. This request was facilitated by the officers.
[11] At approximately 4:05 p.m., the Applicant requested to speak with Det. Haggett and DC Kempster. The Applicant was advised that he should only speak to the officers if it was his decision to do so. The Applicant confirmed that he wished to speak to the officers. At approximately 4:10 p.m., on video, the Applicant was re-advised that he was under arrest and of his right to counsel. He advised that he did not want to speak to counsel. He was also cautioned. The interview that followed was video recorded.
[12] Mr. Roberto was charged with first-degree murder on October 16, 2014.
Voluntariness – Tainting as a Result of Prior Unrecorded Interactions with Police
[13] The Applicant submits that the five unrecorded utterances to Det. Johnson and P.C. Sit are not voluntary given that the officers did not record the statements. The Crown is not seeking to prove these statements voluntary beyond a reasonable doubt. While there is no hard and fast rule requiring the recording of statements, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and police.
[14] In R. v. Moore-McFarlane, 2001 CanLII 6363 (ON CA), [2001] O.J. No. 4646 (C.A.), the Court held that “where the suspect in custody, recording facilities are easily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect”: see para. 65. According to the Court, centuries of common law jurisprudence on the confessions rule require careful scrutiny of the circumstances surrounding any statement by an accused person to a person in authority: these circumstances cannot be adequately assessed absent a reliable record. Accordingly, the Court held that at paragraph 67 “it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.”
[15] The other concern is that Det. Johnson and P.C. Sit did not report to anyone that Mr. Roberto had indicated that he was feeling suicidal.
[16] Based on the lack of recording, I am not satisfied that these earlier statements were voluntary. The applicant submits that this conclusion renders the videotaped statements taken later that afternoon involuntary. While this is not a necessary conclusion the derived confessions rule holds that in some circumstances, the failure to prove an earlier statement voluntary will raise a doubt about the voluntariness of a subsequent statement: R. v. M.D., [2012] O.J. No. 5660 (C.A.) at para. 53.
Mr. Roberto correctly sets out the factors that should be considered in this regard:
The time span between the statements;
Advertence to the earlier statement during questioning in the subsequent interview;
Discovery of additional information after completion of the first statement;
The presence of the same police officers during both interviews; and
Other similarities between the two sets of circumstances.
[17] I am not particularly concerned about Mr. Roberto’s comments about killing himself. Even as he made them, he made it clear he was not going to go through with it. He also did not continue any discussion of suicide in the latter statements. As for the other factors set out above, I am not satisfied that there is a sufficient contextual and temporal connection between the five interviews conducted by Detective Johnson and PC Sit and the impugned statements taken by Detective Haggett and DC Kempster such that the latter are contaminated by the former. I say this even though Det. Haggett did not give Mr. Roberto a secondary caution during the first videotaped statement at 3:01 p.m. I note that Mr. Roberto had spoken to Duty Counsel twice before commencing the videotaped interviews and he repeatedly asserted his right to silence indicated that he had understood what he had been told.
Failure to Properly Advise Mr. Roberto of the Jeopardy He Faced
[18] The Applicant submits that it would have been apparent to a reasonably competent investigator that Mr. Roberto was under suspicion for culpable homicide, not merely failing to provide the necessaries of life. The failure to caution him for this increased suspicion means that his choice to speak with police was not informed. This raises significant doubts about whether the impugned statements were voluntary. This also violates his right to counsel.
[19] The Applicant points to the following factors that support the conclusion that Mr. Roberto should have been cautioned with respect to the culpable homicide of his 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 who they suggest was the de facto lead investigator on October 13, 2014.
[20] I 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.
[21] I 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, Officer 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.[^1]
[22] At the time of the interviews on October 13, 2014, the Applicant was not under genuine suspicion for murder and thus the caution he received was adequate to allow him to meaningfully decide whether to exercise his right to counsel and right to silence. Therefore, I am not persuaded that the two statements were not voluntary 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.
Conclusion
[23] For the foregoing reasons, I have concluded that the two video-taped statements of Mr. Roberto are voluntary and that taking them involved no 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.
DUCHARME J.
Released: March 6, 2018
COURT FILE NO.: CR-16-40000470
DATE: 20180306
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
JOEL ROBERTO Applicant/Accused
Ruling on admissibility of Mr. Roberto’s Statements to Police
DUCHARME J.
Released: March 6, 2018
[^1]: In reaching this conclusion, I reject the argument that the standard for determining what charges will be laid has been reduced by the decision in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220.