R. v. J.J. and J.K.M., 2019 ONSC 1696

COURT FILE NO.: 170/18

DATE: 2019/03/15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN v. J.J. and J.K.M.

BEFORE: Justice I.F. Leach

COUNSEL: James Spangenberg, for the Crown The accused J.J., self-representing[^1] Elizabeth Ferris, for the accused J.K.M.

HEARD: February 7 and 8, 2019

RESTRICTION ON PUBLICATION

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

ENDORSEMENT

Introduction

[1] This particular pretrial decision deals with the voluntariness of videotaped statements made separately by the two accused persons in this proceeding, (J.J. and J.K.M.), during formal police interviews conducted in the wake of each being arrested.

[2] In particular, the Crown seeks a finding of voluntariness in relation to:

a. a videotaped statement made by Mr M. during a formal police interview conducted by Officer John Matthews, of the London City Police Service, on December 22, 2016; and

b. a videotaped statement made by Mr J. during a formal police interview conducted by Officer Dale Howe, of the London City Police Service, on December 27, 2016.

[3] By way of a proper formal pretrial application, the Crown seeks findings that the statements were voluntary, and a corresponding order or orders permitting admission of the videotaped statements as evidence during the pending jury trial of Mr J. and Mr M.

[4] There have been no challenges to the admissibility of either statement based on any alleged infringement of the rights guaranteed to Mr J. and Mr M. by the Canadian Charter of Rights and Freedoms; i.e., “the Charter”. Stated more formally, neither respondent to the Crown’s voluntariness application has brought any pretrial application of his own alleging any breach of Charter rights in relation to the videotaped statement he gave to the police.

Factual background

[5] The respondents are jointly charged with the following two offences:

i. sexual assault, contrary to subsection 271(1) of the Criminal Code of Canada, (“the Code”); and

ii. sexual exploitation, contrary to subsection 153(1.1)(a) of the Code.

[6] The charges stem from a series of events alleged to have taken place between January 1, 2014 and July 9, 2008, here in the city of London.

[7] In particular, I gather from the indictment, the testimony of Officer John Matthews, and more particular allegations effectively put to each accused, during the course of the police interviews in question, that the complainant, a significantly younger and apparently troubled male, without a stable family or home, and without resources to live independently in a safe manner, is said to have been invited into the respondents’ London home from time to time where he was provided with shelter, food and other items on an intermittent basis over the relevant time period.

[8] It is also said that, during the said time period, the respondents – acting together and/or separately – engaged in sexual activity with the younger male in circumstances constituting sexual assault and sexual exploitation.

[9] Again, the alleged events are said to have taken place no later than July 9, 2008.

[10] It seems the complainant first spoke with police about the aforesaid allegations on or about January of 2016.

[11] Officer Matthews – at the time assigned to the Sexual Assault and Child Abuse unit of the London City Police force[^2] – was tasked with investigating this matter on or about January 11, 2016. He thereafter spoke with the complainant and a number of other witnesses, (obtaining statements from some of them, including the complainant’s probation officer), and continued to investigate the matter intermittently at various times throughout 2016, including liaison contact with the Crown Attorney’s office.

[12] On or about December 9, 2016, the Crown Attorney indicated to Officer Matthews that it was appropriate to lay the aforesaid charges in relation to this matter. When contacted again by Officer Matthews, the complainant indicated that he still wished to co-operate with a prosecution in relation to the matter.

[13] On or about December 21, 2016, Officer Matthews then contacted the “Communications Section” or dispatch office of the London City Police, and had a call put in the queue to have officers attend at the residence of the respondents to arrest them on the aforesaid charges; i.e., as Officer Matthews felt that he had reasonable and probable grounds to direct such an arrest.

[14] It apparently is not disputed, and I find in any event, (having regard to the evidence presented on the application, noted below), that in response to that request or direction:

a. On December 22, 2016, Constable Daniel Aristone of the London City Police attended at the respondents’ residence, (a fully detached house located at a specified residence here in London), at approximately 1:28am, intending to arrest both respondents. At the time, Constable Aristone was in full police uniform, and had travelled to the respondents’ residence in his fully marked police cruiser. For reasons of officer safety, another unidentified officer, also in full uniform and travelling in another marked cruiser, attended at the respondents’ residence at the same time as Constable Aristone to ensure officer safety while Constable Aristone carried out the contemplated arrests. As it turned out, only Mr M. was home at the time, although he was exiting the home at the time of the officers’ arrival. In the result:

i. Constable Aristone arrested Mr M. just outside his home at approximately 1:30am, advising him that he was under arrest for sexual assault and sexual interference (sic);[^3]

ii. At approximately 1:31am, Constable Aristone read Mr M. the standard form “rights to counsel” from his officer’s duty book,[^4] in response to which Mr M. indicated that he understood his rights and that he did not wish to speak to a lawyer at that time.

iii. At approximately 1:32am, Constable Aristone read Mr M. the standard form “primary caution” from the officer’s duty book,[^5] in response to which Mr M. indicated that he understood, and did not wish to say anything at that time in answer to the charges. Mr M. nevertheless did indicate that Mr J. was not home at the time, as he had gone to hospital with flu-like symptoms.

iv. Using his marked police cruiser, Constable Aristone thereafter transported Mr M. to the detention unit of London City Police headquarters where, at 1:53am, Mr M. was subjected to a standard and uneventful search by Constable Aristone, immediately before being processed and booked into the unit’s cell area by Sergeant Sean Harding, the “Booking In Sergeant” on duty at the unit at the time.[^6] Sergeant Harding asked Mr M. a number of standard questions that are asked of all detainees being booked into the unit’s cell area; e.g., whether he knew why he had been arrested, whether he had been advised of and wished to exercise his rights to counsel, whether he had any medical issues, and whether he had any other concerns.[^7]

v. In response to Sergeant Harding’s questions, Mr M. expressed a desire to speak with duty counsel, and steps then were taken such that Mr M. was able to speak by telephone with duty counsel.

vi. As the request to have Mr M. arrested apparently had been accompanied by a “Hold back for next day” instruction, (i.e., such that Mr M. would be detained until an investigating officer had spoken with him before being released), Mr M. was then detained in custody, in a holding cell, until later that morning.

vii. When Officer Matthews came in to start his shift at 7:00am that morning, he was advised that Mr M. had been arrested, but Mr J. had not. As Officer Matthews already had been tasked with assisting in the execution of a search warrant that morning, he was unable to stay at or return to London Police Headquarters, where Mr M. was being detained, before 10am that morning. Officer Matthews then made preparations for a contemplated interview with Mr M.; e.g., making arrangements for an interview room, audio-visual recording, and a transfer of Mr M. from his cell to the interview room, during which Officer Matthews followed his usual practice of not speaking about any substantive matters with the interviewee until both he and the interviewee were in the interview room with the recording operating.

viii. From approximately 10:41am to 11:58am, Officer Matthews then met with and interviewed Mr M. in the interview room resulting in the relevant videotaped statement of Mr M. which is the subject of this Crown voluntariness application.

ix. Following that interview, Mr M. was released on conditions.

b. Later, on December 27, 2017, Mr J. then voluntarily turned himself into the London City Police for arrest by presenting himself in the lobby of London City Police headquarters, and speaking to staff there. In the result:

i. Constable Tyler Marve, (at the time in full police uniform, operating a marked police cruiser, and assigned to a “patrol beat” with his supervising partner Constable Hartery), was detailed – along with Constable Hartery – to return to London Police Headquarters to address the situation.

ii. Both officers returned to headquarters, where they met with Mr J., who verbally identified himself, in the building’s public lobby. The two officers informed Mr J. why they were there.

iii. At approximately 11:41am, Constable Marve then arrested Mr J., advising him that he was under arrest for sexual assault and sexual exploitation, expressly using those words.

iv. Immediately thereafter, Constable Hartery advised Mr J. that the formalities of the arrest could be conducted in another more private area, away from the public reception lobby. Mr J. consented, and was taken by the two officers to the cell area of the building.

v. At approximately 11:43am, Constable Marve read Mr J. the standard form “rights to counsel” from his the officer’s duty book, in response to which Mr J. indicated that he understood his rights and that he did not wish to speak to a lawyer at that time.

vi. At approximately 11:46am, Constable Marve read Mr J. the standard form “primary caution” and standard form “secondary caution” from the officer’s duty book, in response to both of which Mr J. indicated that he understood.

vii. Shortly thereafter, Constable Marve searched Mr J. incident to arrest and located Mr J.’s wallet containing personal identification, including a driver’s licence with digital photo, and an Ontario Health Card. As that information suggested discrepancies in the officer’s information as to the spelling of Mr J.’s surname and date of birth, Constable Marve asked Mr J. for clarification in that regard to confirm the actual spelling of his surname and his proper birth date.

viii. Constable Marve thereafter presented Mr J. for booking into the aforesaid detention unit of London City Police headquarters, where he was processed and booked into the unit by Sergeant Sean Harding; i.e., the same “Booking In Sergeant” noted above, who once again was on duty at the unit at the relevant time of Mr J.’s presentation for processing. Sergeant Harding asked Mr J. the same standard questions asked of all detainees being booked into the unit; e.g., if he knew why he had been arrested, whether he had been advised of and wished to exercise his rights to counsel, whether he had any medical issues, and whether he had any other concerns.

ix. Although Mr J. was again advised of his rights to counsel and offered an opportunity to speak with counsel, during that booking in process, he once again declined to avail himself of that right.

x. Apparently pursuant to the same aforesaid request to have Mr J. “held back” after his arrest until he had met with an investigating officer, Mr J. was then detained in custody until later that afternoon. However, as Officer Matthews was not available to conduct an interview that day, Officer Dale Howe was asked to assist in that regard, after a short briefing from Officer Matthews providing information about the nature of the matter and the relevant charges.[^8]

xi. From approximately 1:34pm to 2:04pm, Officer Howe then met with and interviewed Mr J., resulting in the relevant videotaped statement of Mr J. which is the subject of this Crown voluntariness application.[^9]

xii. Following that interview, Mr J. was released on conditions.

[15] In the voir dire hearing before me, I was presented with the following evidence:

• oral testimony from Constable Aristone;
• oral testimony from Sergeant Harding;
• oral testimony from Officer Matthews;
• a video recording of Officer Matthew’s aforesaid interview of Mr M. on December 22, 2016;[^10]
• oral testimony from Constable Marve;
• oral testimony from Officer Howe;
• a video recording of Officer Howe’s aforesaid interview of Mr J. on December 27, 2016;[^11]
• oral testimony from Mr M.; and
• oral testimony from Mr J..

General Principles

[16] Before proceeding to outline my analysis of whether or not the particular interview statements made by the respondents to Officer Matthews and Officer Howe respectively were voluntary in the sense required by law, I think it helpful to outline a number of general principles relating to voluntariness.

[17] Such principles were restated and emphasized by the Supreme Court of Canada in the seminal case of R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, and have since been repeated in decisions such as R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500. They include the following:

• Statements by an accused will not be admissible if they are made under circumstances that raise a reasonable doubt as to voluntariness.

• The burden is on the prosecution to prove beyond a reasonable doubt that a statement was voluntary.

• Application of the “confessions rule” or voluntariness rule is necessarily contextual, because “hard and fast” rules cannot account for the wide variety of circumstances that may vitiate voluntariness, including sensitivity to the particularities of the accused.

• A trial judge therefore must consider all relevant factors when reviewing such statements, always keeping in mind the twin goals or objectives of protecting the rights of an accused without unduly limiting society’s need to investigate and solve crimes. However, the factors to be considered include the following:

  i. Whether statements were induced by threats, (including but not limited to threats of violence), or promises, (including but not limited to offers of leniency, counselling, or other forms of “quid pro quo” in exchange for the accused speaking with police);

  ii. Whether a statement was induced by a desire to escape oppressive conditions, (including but not limited to deprivation of food, clothing, water, sleep or medical attention, denial of access to counsel, and/or excessively aggressive or intimidating questioning for a prolonged period of time);

  iii. Whether an ostensible statement by the accused was made at a time when the accused lacked “an operating mind”; a requirement which, according to the Supreme Court of Canada, “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”; and

  iv. Whether the police used “trickery” to obtain a statement from the accused, recognizing that courts must be wary not to unduly limit police discretion, and that resort to tricks and other forms of deceit are not prohibited so long as they are not “so appalling as to shock the community”.

[18] Again, that list of factors is not exhaustive, but those are the four principal areas or situations giving rise to possible doubt concerning voluntariness identified by the Supreme Court of Canada, which therefore understandably have been the focus of subsequent decisions.

Analysis – General comments

[19] With the above principles in mind, I turn to my consideration of whether the statements made by Mr M. to Officer Matthews and the statements made by Mr J. to Officer Howe in the course of the relevant police interviews on December 22 and December 27, 2016, respectively, were voluntary in the sense required by law.

[20] In the course of doing so, I will address a number of suggestions and concerns raised by counsel for Mr M. and by Mr J. in that regard.

[21] At all times, however, I do not lose sight of the fact that it is the Crown which bears the onus of proving the voluntariness of each respondent’s statements beyond a reasonable doubt.

[22] Despite the order in which the respondents are named in the indictment, I intend to deal with the voluntariness of the statements made by Mr M. first, before turning to the voluntariness of the statements made by Mr J., simply because that is the way they evolved chronologically, and that correspondingly was the way in which evidence relating to the matter was presented.

Analysis – Voluntariness of statements made by Mr M. to Officer Matthews

[23] With that in mind, I turn first to the statements made by Mr M. to Officer Matthews during the course of his video recorded police interview on December 22, 2016.

THREATS AND PROMISES

[24] In my view, the Crown has established that there were no express, implicit or veiled coercive threats or promises of any kind, on the part of the officers who dealt with Mr M., to induce a statement from him.

[25] Without limiting the generality of the foregoing:

• Constable Aristone, Sergeant Harding and Officer Matthews all denied making any such threats or promises whatsoever to Mr M.

• I accept their testimony in that regard, which in my view essentially was unchallenged in cross-examination.

• The evidence before me indicates that the officers treated the respondent with courtesy and respect. Without limiting the generality of the foregoing:

  • At the outset of the videotaped statement, Officer Matthews expressly delivered the secondary caution in its standard form, and then included paraphrasing to ensure that it was understood by Mr M. – which included express indications that, in deciding whether or not to speak with Officer Matthews, the latter did not want Mr M. influenced by any conversations with other police officers with whom he may have interacted; e.g., by any comment to the effect of “We’re going to make things better for you” and/or “You better – when that guy in the suit comes down … you’ve got to talk to him or else”.[^12]

  • Officer Matthews also expressly asked Mr M. whether any promises, inducements or threats had been made to him in that regard. Mr M. expressly confirmed that there had not been “anything like that”.[^13]

  • During the videotaped statement or interview of Mr M., Officer Matthews also spoke with Mr M. in an entirely civil manner, rarely raising his voice beyond a normal if not somewhat subdued speaking tone. During such interaction, Mr M. was never mistreated. In my view, there were absolutely no express or implicit threats of ill treatment or more punitive consequences for Mr M. if he failed to speak with Officer Matthews.

  • Nor, in my view, did Officer Matthews make any comments in the nature of what our courts would regard as promises or inducements.

[26] During the course of his testimony during the voir dire, Mr M. repeatedly asserted that he felt that he “had to keep talking”, even though he did not want to and was not comfortable doing so, and even though it was contrary to the advice he had received from Legal Aid duty counsel, because Officer Matthews “kept saying” that it would be in the “best interest” of Mr M. to talk.

[27] Mr M. claimed he not only felt obliged to trust in that, but that Officer Matthews “just wouldn’t let” him exercise his rights and stop talking. According to Mr M., he feared that “someone would be violent” with him if he did not do as he was “instructed” and keep talking, that he would be presumed guilty, and that he would be “yanked off” to prison or the local detention centre “right away” and “immediately” if he failed to comply and simply “shut [his] mouth”. Mr M. claimed that he had repeatedly tried to put his head down, but to no avail. He instead felt obliged to keep talking.

[28] I can only say, as charitably as I can, that Mr M. was an extremely poor witness in that regard – especially having regard to the reality that he had sat through an entire playing of the recorded interview, (with the benefit of a transcript for reference), only the day before.

[29] The simple reality is that, despite the repeated assertions of Mr M. to the contrary, Officer Matthews never told Mr M. it was in his best interest to speak to the officer. Nor did Officer Matthews ever “instruct” him to talk. Officer Matthews did not do that once let alone a number of times, as suggested by Mr M.

[30] To the contrary, in addition to expressly repeating the primary and secondary cautions, Officer Matthews expressly agreed and reiterated that Mr M. could “choose not to comment on anything”, after Mr M.’s final expression of a preference not to say anything without legal counsel.

[31] Observing the video recording of the interview, it seemed to me there were no noticeable attempts of Mr M. to put his head down – although there was a table right beside him.

[32] Even when confronted with that such realities in cross-examination, Mr M. was reluctant to admit them – which frankly made me doubt the rest of his testimony.

[33] Eventually, in cross-examination, Mr M. indicated that he simply did not know why he felt that he had to keep speaking.

[34] It was emphasized that Officer Matthews admittedly had continued to question Mr M. even after Mr M. had made a number of comments expressing a preference to not say anything without legal counsel; a consideration that essentially was relied upon as some form of implicit indication or threat that Mr M. had to keep speaking. For example, reliance was placed on the following:

• It was noted that Officer Matthews continued to speak with and question Mr M., notwithstanding Mr M. making a number of indications and/or giving a number of answers indicating that he did not want to respond to the particular question or questions being asked. For example:

  • At p.5, lines 28 onwards, Office Matthews asked Mr M. whether he knew or understood who the relevant complainant might be, and Mr M. said he would “rather not say”, and then that he would “rather not say anything”.

  • At p.9, lines 26 to p.10, line 3, there is an exchange wherein Officer Matthews had asked if Mr M. was able to provide an alternate explanation to the information the officer had of how Mr M. came to know the complainant, and Mr M. indicated that he’d “rather not”, that he’d “rather have … counsel if [he was] going to say anything”, as he did not know enough of the process in order to know whether providing such information was going to “sting” him.

• It was also noted that Officer Matthews invited Mr M. to provide an “alternative explanation” for how he came to know the complainant, (e.g., at p.9, lines 24-26 of the interview transcript), and also made reference, (e.g., at p.10, lines 9-10 of the same transcript), to the interview really being an “opportunity” for Mr M. to say whether there is an “opposing sort of explanation” or “something different” from what the officer had been told.

[35] Implicitly if not expressly, it essentially was suggested that such comments by Officer Matthews were reasonably construed by Mr M. as subtle or implicit threats to Mr M. that he was obliged to keep speaking, and/or as a promise of leniency or other reward in exchange for speaking.

[36] In my view, however, the aforesaid aspects of the interview were not threats or promises of any “quid pro quo” offer of the type sufficient to raise or contribute to any reasonable doubt as to the voluntariness of Mr M.’s statements.

[37] My considerations in that regard include the following:

• The entire interview started with Officer Matthews reading, almost immediately, a “primary caution” in its standard form, expressly confirming to Mr M. that he was “NOT obliged to say anything unless [he wished] to do so, but whatever [he did] say may be given in evidence”, and Mr M. expressly confirmed that he understood what that meant. Throughout the interview, Mr M. consistently demonstrated that he was obviously intelligent, sophisticated and articulate. I have no doubt that he understood the primary caution, and would not have regarded Officer Matthews’ mere continuation of questioning as any kind of implicit threat or similar indication that Mr M. was obliged to keep talking or face some form of retribution for failing to provide answers. Moreover, the suggestion that such comments by the officer reasonably would have been perceived as such a threat is entirely consistent with the obvious kindness, civility and respect Officer Matthews was demonstrating throughout the entire interview.
• As for the officer’s reference to provision of an “opportunity” to Mr M. to speak being a “promise” or “inducement” in the sense of something that might undermine a finding of voluntariness, our courts have made it clear 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 if the suspect confesses to a crime. The concern focuses on offers by the police to procure lenient treatment for crimes, in return for a confession to those crimes.[^14] However, that is not the same thing as an indication that a charge may not be pursued against a suspect if information is received indicating that the person in question did not commit the crime at all. In my view, the latter is what Officer Matthews’ statements concerning an “opportunity” or invitation to provide an “alternate explanation” conveyed, and were intended to convey, in the present case.
• In any event, isolated comments by Officer Matthews must not be taken out of context, without due regard to the wider circumstances in which they were made. The broader reality is that the officer expressly made it clear, (echoing the earlier express cautions given to Mr M.), that Mr M. had no obligation to speak, and also that the officer did not want any decision of Mr M. in that regard to be influenced by any promises or inducements. I see no reason to question the sincerity of the officer’s statements in that regard, or Mr M.’ understanding of them. In particular, I do not think it reasonable to infer that Mr M., in the face of such express comments by Officer Matthews, somehow formed any kind of reasonable impression that speaking to the officer would engage any kind of possible “quid pro quo” arrangement, and/or to infer that Mr M. was induced to keep speaking by a mistaken perception that any such implicit promise was being made. In my view, if there was any such perception, this is a case where Mr M.’ hope of such a promise was self-generated, and therefore irrelevant.[^15]

[38] More generally, I am mindful of the Supreme Court of Canada’s emphasis on remembering that police may often offer some kind of inducement to a subject to obtain a confession; that in the vast majority of cases the police somehow have to convince a subject that it is in his or her best interests to confess; and that such efforts become improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.[^16]

[39] In this case, for the reasons outlined above, I do not view the considerations relied upon by counsel for Mr M. as inducements, (threats, promises or offers of quid pro quos), held out by Officer Matthews. In particular, in my view there was no “promised benefit…of such a nature that, when considered in light of the relationship between [Officer Matthews] and [Mr M.], and all the surrounding circumstances of the confession, would tend to induce the accused to make an untrue statement”.[^17]

[40] If the considerations relied upon by counsel for Mr M. were inducements, in the sense required, in my view they certainly were not strong enough, standing alone, to raise a reasonable doubt about whether the will of Mr M. was “overborne” during his formal police interview.

[41] I will return to the possibility of their combining with other factors, to raise such a reasonable doubt, in setting forth my overall conclusion concerning voluntariness, having regard to all the circumstances of the case.

OPPRESSION

[42] In her written and oral submissions, I think it fair to say that counsel for Mr M. did not really suggest or rely upon any suggestion of “oppressive circumstances” as a factor in possibly “breaking-down and vitiating” the voluntariness of Mr M.’ statements to Officer Matthews.

[43] In any event, I independently find that oppression was simply not present or a factor in this case, as far as the videotaped statement of Mr M. is concerned.

[44] In R. v. Oickle, supra, at paragraphs 58-62, the Supreme Court of Canada provided descriptions and examples of the sort of “inhumane” or “distasteful” conditions that may be created by police to create oppressive circumstances sufficient to overbear a suspect’s will to the point of making him or her doubt his or her own memory, and/or offer a “stress compliant confession” to escape such conditions. In particular, the Supreme Court offered an expressly non-exhaustive list of relevant factors in that regard, mentioned above, which included the following: “depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and aggressive, intimidating questioning for a prolonged period of time”.[^18] Another possible source of oppressive conditions was said to be police use of non-existent evidence.[^19]

[45] In my view, there were no such conditions evident in the case before me. Without limiting the generality of the foregoing:

• The relevant police interview took place in an interview room that appeared to be clean and bright, with a table and chair for use by Mr M. At no time during the interview does Mr M. express any discomfort relating to the room or its furnishings, apart from a passing comment that the room seemed “dry” to him, having regard to a “cold” he said he had at the time – which seemed consistent with his blowing and/or wiping his nose into a tissue from time to time during the interview.
• As noted above, Mr M. was arrested at approximately 1:30am on December 22, 2016. However, I think it also important to note that Mr M. was not roused from slumber in the middle of the night to be unexpectedly arrested. To the contrary, Constable Aristone testified and I accept, (particularly insofar as there was no cross-examination to suggest the contrary), that when he arrived at the residence of the respondents to effect an arrest as contemplated, he met Mr M. outside the residence – apparently already dressed, and in the course of departing from the residence. As noted above, the relevant police interview with Officer Matthews then commenced at approximately 10:41am, more than nine hours later. There was no evidence to suggest or indicate that Mr M. was deprived of an opportunity to have substantial rest and/or sleep in the meantime, while detained and waiting to speak with Officer Matthews. During the video-recorded interview, Mr M. seemed quite alert and articulate, and made no comments whatsoever to suggest that he was tired or in need of sleep. To the contrary, Mr M. seemed quite engaged in his conversation with Officer Matthews, appearing alert and attentive at all times during the interview, and at times being quite animated in his movements and gesticulation.
• There is no evidence to indicate how recently Mr M. may have consumed food and/or drink prior to his arrest, and/or prior to commencement of his videotaped interview with Officer Matthews. However, at no point during his extended appearance in the relevant video recording does Mr M. make any comments whatsoever indicating that he is hungry or thirsty.
• During the entirety of his interview session with Officer Matthews, Mr M. similarly made no comments whatsoever indicating that he was in need of a toilet to relieve himself. Mr M. similarly displayed absolutely no signs of discomfort, continuing to sit calmly in his seat throughout the interview.
• Throughout his time in the interview room, Mr M. remained fully clothed, wearing a long sleeved top, long trousers and shoes, from which I infer that the respondent was permitted to continue wearing his own clothing following his arrest and throughout his ensuing interview with Officer Matthews. At no point during the video recording does the accused express any concerns whatsoever relating to personal discomfort, apart from the aforesaid reference to the room being “dry”.
• Throughout his time in the interview room, there are no indications that the respondent required any form of medical attention. Nor did the respondent make any comments to suggest that he had any needs or requirements in that regard.
• During the initial stages of the relevant police interview, Officer Matthews expressly asked Mr M. the following question: “Has (sic) there been any issues down here [i.e., in the cells area of the unit] with any of the people that you’ve been dealing with?” Mr M. replied by saying “No”.[^20]
• As noted above, (and in further detail below), there is no dispute that the respondent was properly advised of his right to counsel upon arrest, and that the police facilitated the respondent’s exercise of that right prior to commencement of his interview with Officer Matthews – i.e., by putting Mr M. in contact with legal aid duty counsel.
• In my view, Officer Matthews did not conduct his questioning in an aggressive or intimidating fashion. To the contrary, and as noted above, I think the officer treated Mr M. with courtesy and respect, assuming a seated position like that of Mr M., without making any physical contact, and rarely raising his voice.
• The entire interview was relatively brief. In particular, the respondent was in the interview room for no more than 77 minutes; i.e., arriving in the room with Officer Matthews at 10:41am and departing the room with Officer Matthews at 11:58am.
• Officer Matthews made no use of fabricated evidence.

[46] In my view, Mr M. appeared comfortable and relatively calm throughout the interview, showing no marked signs of significant upset or agitation. He spoke easily and conversationally, without voicing any complaints or concerns about his physical welfare.

[47] More generally, the reactions, demeanour, conduct and speech displayed by Mr M. throughout the interview were not indicative of any oppression on the part of Officer Matthews that “broke down” Mr M.’ independent will and/or ability to make a voluntary decision as to whether he would continue speaking to the officer. To the contrary, it seemed to me that, throughout the interview, Mr M. presented as someone possessed of considerable intellect, sophistication and poise.

[48] It is true that Officer Matthews continued to pose questions to Mr M., after some passing indications by Mr M., towards the beginning of the interview, that he would “rather not say” something in response to a particular question, that he would “rather not say anything”, and that he would “rather have … counsel if [he was] going to say anything”, as he did not “know enough about this process in order … to know whether it [was] going to sting [him]”.[^21]

[49] However, to the extent counsel Mr M. and/or his counsel relied on such continued questioning by Officer Matthews in support of suggestions that Mr M.’ statements to Officer Matthews were involuntary because of oppression, I disagree. In my view, such acknowledged conduct by Officer Matthews did not entail improper oppression in the sense required to vitiate voluntariness, in the circumstances of this particular case.

[50] Again, the Supreme Court of Canada has emphasized the importance of bearing in mind, at all times, the twin goals of the rights of an accused and the need to avoid placing undue limits on society’s need to investigate and solve crimes. In that regard, the Supreme Court also has emphasized the following:

a. It is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated, and that properly conducted police questioning is a legitimate and effective aid to criminal investigation.[^22]

b. The police accordingly have a right to question the accused. In particular, what the law recognizes is an individual’s right to remain silent. That does not mean that a person has the right not to be spoken to by the police. The importance of police questioning, in the fulfilment of their investigative role, cannot be doubted.[^23]

[51] Notwithstanding that recognized distinction, the Supreme Court of Canada also has emphasized that the law does not permit the police to ignore a detainee’s freedom to choose whether to speak or not, and that police persistence in continuing an interview, despite repeated assertions by the detainee that he or she wishes to remain silent, and have a police interview terminated, may well raise a strong argument, in appropriate cases, that any subsequently obtained statement was not the product of a free will decision to speak to the authorities.[^24]

[52] However, while the trial judge must be alive to the risk that a statement may be involuntary when a police officer engages in such persistence, the voluntariness inquiry nevertheless remains highly fact specific, and dependent on the trial judge’s review and assessment of all relevant factors.

[53] In my view, this is not a case where Officer Matthews’ persistence in questioning Mr M., (despite some fleeting, mild and relatively isolated indications by Mr M. of a preference not to say anything), resulted in an improper situation where the free will of Mr M., and his ability to choose whether or not to speak to the police, was overborne.

[54] The other considerations I have set forth above and below, (in relation to the absence of threats and promises, the absence of other forms of oppression, the presence of an operating mind, and the absence of police trickery), certainly contribute to that view.

[55] However, I also find and rely upon the fact that this is not a case where the investigating officer was intent on putting the police case to Mr M., or on continued questioning of Mr M. until he confessed and/or supplied desired information, no matter what Mr M. may have said about his desire to remain silent and/or have the interview brought to an end.[^25]

[56] To the contrary, it seemed to me that Officer Matthews continued to put questions and comments to Mr M. simply because Mr M. invariably continued to speak in response to such efforts.

[57] In my view, that was indeed a striking aspect of the interview, made clear in the relevant video-recording, which confirms that Mr M. continued to respond to Officer Matthews’ comments and questions promptly and extensively, rarely pausing for more than a few seconds.

[58] Before and at the outset of the relevant interview with Officer Matthews, Mr M. repeatedly had been advised of his right to silence, and that he was not obliged to speak with the police. At any time, Mr M. could simply have stopped speaking and “shut down”, and I have little doubt that, had he done so, the interview would have been terminated.

[59] However, Mr M. chose to keep talking. Moreover, he did so even after Officer Matthews emphasized once again, (after Mr M. made the aforesaid initial indications of a preference not to say anything without further legal counsel), that continuing to speak was a decision that was up to Mr M. In particular, immediately after Mr M.’ last indication during the interview that he would “rather have … counsel if [he was] going to say anything”, as he did not “know enough about this process in order … to know whether it [was] going to sting [him], Officer Matthews expressly said this: “Well, I understand, and you can choose to not comment on anything”. Although Mr M. responded with an “Mm-hmm”, it was clear to me from watching the recording of the interview that he registered and understood what Officer Matthews was saying in that regard.[^26]

[60] Certainly, the number of times an accused asserts his right to silence is part of the overall assessment of the circumstances, and Mr M. did do that on occasion during the course of his interview with Officer Matthews. However, as emphasized by the Supreme Court of Canada, that is not in itself determinative, and the ultimate question is still whether the accused exercised free will in making his or her statement.[^27]

[61] In my view, Mr M. did so.

[62] In that regard, I also think it noteworthy that, in contrast to situations where an interviewer wears a suspect down by persistent questioning over the course of several hours, despite repeated assertion of the right to silence[^28], in this case Mr M.’ indications of a preference not to say anything occur a relatively short time into the interview, and generally were not repeated thereafter.

[63] I do not think, especially having regard to the other considerations and factors addressed herein, that the free will of Mr M., and his ability to make a choice as to whether or not he would speak to authorities, was overborne in such circumstances, over so short a period of time.

[64] Moreover, while it certainly is not impossible that the free will of an accused might be overborne in such a short period of time, (e.g., in the case of a particularly compliant accused, one without an operating mind, and/or one subjected to some potent combination of threats, promises, oppression and/or police trickery), it seems to me that the court must be wary of arriving at such a conclusion, and effectively finding that an interview should have been terminated, after such a relatively short period of attempted questioning by the police, simply because the accused expresses a preference not to say anything.

[65] In particular, it seems to me that doing otherwise would come perilously close to providing interviewees with something akin to a right to terminate questioning, a relatively short time into attempted police interviews, upon making that request. That in turn would substantially undermine the acknowledged right of the police to speak to an accused and pose questions, effectively frustrate and prevent a legitimate and effective aid to criminal investigation, and thereby impose undue limits on society’s need to investigate and solve crimes; i.e., one of the “twin goals” of the voluntariness inquiry.

[66] For present purposes, I do not think the circumstances of this particular case “crossed the line”, in terms of persistent questioning and ignoring an accused’s assertions of the right to silence and/or desire to terminate the interview; i.e., in a manner sufficient to override Mr M.’s exercise of free will.

[67] Finally, on this point, I note, for the sake of completeness, the suggestion made by Mr M., during the course of his testimony, that he felt pressured by the circumstances to speak, (although he did not wish to do so), and “say anything to get out sooner”, as he was extremely worried that his partner Mr J. was gravely ill, that Mr J. would not know where Mr M. was, that he could not stop thinking about Mr J., and that it “would have killed” Mr M. if Mr J. had died that night before Mr M. could reach him at the hospital.

[68] I simply do not believe the testimony of Mr M. in that regard, for reasons that include the following:

• Absolutely nothing in the comments, questions or demeanor of Mr M., at any point during the extended interview video recording, suggests any pressing concern whatsoever about Mr J. on the part of Mr M.
• Throughout the extended interview, Mr M. appears relaxed and at ease.
• When expressly asked if he had any issues with the people Mr M. had been dealing with, the answer of Mr M. was “no”.[^29] No complaints were made about any failure by the police to obtain further information about the health status of Mr J., or to address any concerns expressed by Mr M. about any inability to see Mr J. because of Mr J.’s perilous state of health.
• Throughout the interview, Mr M. expresses no comment or concern whatsoever about the current welfare of Mr J., even when Mr J. is being expressly discussed.
• Even when Mr M. makes reference to an earlier occasion where he received a telephone call indicating “J. is in the hospital”, and mistakenly thought it was a reference to Mr J. rather than the complainant, Mr M. makes no reference to the current hospitalization of Mr J. or Mr J.’s welfare.[^30]
• At another point during the interview, Mr M. takes time to complain about the interview room’s dryness and his own cold, but once again fails to express any comment or concern about Mr J.’s current health situation.[^31]
• At another point during the interview, Mr M. also emphasizes, (supposedly while racked with overpowering concern for Mr J.), that he had loved the complainant, and thought seriously about leaving Mr J. for the complainant.[^32]
• At the end of the interview, after Officer Matthews has indicated that Mr M. will be released in less than an hour, after the completion of certain paperwork, Mr M. expresses no concern about the further delay, and simply says “Okay”.[^33] Mr M. also expresses no desire to go immediately to the hospital and Mr J. He instead indicates that he wants to go home.[^34]

[69] In short, I do not believe or accept that any health concerns of Mr J., prevailing at the time, somehow constituted an oppressive circumstance sufficient to overbear the free will of Mr M. in deciding whether or not to speak with Officer Matthews.

[70] Again, for the reasons outlined herein, I find that Mr M. simply chose, voluntarily, to keep speaking with Officer Matthews. In my view, there were no oppressive circumstances that vitiated his free will in that regard.

OPERATING MIND

[71] I turn next to consideration of whether Mr M., during his relevant police interview with Officer Matthews, had an “operating mind” in the sense required to permit a finding of voluntariness.

[72] In that regard, I find and confirm that, at all material times, Mr M. did indeed have an “operating mind” in the sense required for voluntariness of statements to the police.

[73] In that regard, and as noted above, the Supreme Court of Canada has explained that the relevant “operating mind” requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”.[^35]

[74] In this case, I think there is no evidence to indicate or suggest that Mr M. lacked the cognitive ability to understand what he was saying to Officer Matthews.

[75] In that regard, I note that, from the time of Mr M. arrest to the time of his interview with Officer Matthews:

• the testimony of Constable Aristone confirmed, and I accept, that there were no problems whatsoever encountered in communicating with Mr M.; that Mr M. seemed to understand what was being said to him; that there were no concerns whatsoever about Mr M.’s sobriety; that there were no indications Mr M. was intoxicated in any way; and that there similarly were no concerns about Mr M.’s mental health; and
• the testimony of Sergeant Harding confirmed that, when he was processing and booking Mr M. into the cell area of London City Police headquarters, he encountered no problems communicating with Mr M., that Mr M. had no difficulty understanding him, and that there were no concerns whatsoever about Mr M.’s mental health or sobriety.[^36]

[76] Similarly, Officer Matthews testified that, throughout his interactions with Mr M., he had no concerns about the sobriety of Mr M. or any other form of intoxication. Nor did Officer Matthews encounter any communication difficulties whatsoever while conversing with Mr M.

[77] In my view, the behaviour and responses of Mr M. throughout the relevant police interview also make it abundantly clear that he was quite intelligent and appropriately responsive to Officer Matthews’ questions and comments, without any indications whatsoever that his cognitive ability was impaired by matters such as lack of sleep, drugs or alcohol.

[78] As for the second component of the “operating mind” requirement described above, (i.e., requiring the respondent to have awareness or knowledge that what he was saying to Officer Matthews could be used “to his detriment”, in “proceedings against the accused”), I think the evidence before me makes satisfaction of that requirement clear as well, as far as Mr M. is concerned. In that regard:

• As noted above, it was not disputed that Mr M. was properly cautioned in that regard after his arrest. Again, that included a primary caution in the standard form; i.e., an express statement by Constable Aristone, specifically indicating to Mr M. that, although he was charged with a criminal offence, he had the right to remain silent unless he wished to do otherwise, and that anything he did say to the police could be used against him in evidence.[^37]
• It similarly was not disputed that, prior to his police interview with Officer Matthews, Mr M. repeatedly was advised of his right to counsel, (i.e., by Constable Aristone and Sergeant Harding), and that the police, at the request of Mr M., successfully facilitated telephone contact between Mr M. and duty counsel. All of that was confirmed during the initial stages of the formal police interview, wherein Mr M. confirmed that he had been advised of his rights to counsel, and had spoken with a lawyer.[^38] The Supreme Court of Canada repeatedly has indicated that, if a detainee has exercised his right to counsel, he presumably will have been informed of his right to remain silent, and therefore his right to choose whether or not to volunteer information to the police.[^39]
• Officer Matthews expressly advised Mr M. during the interview that everything being said in the interview room was audio and video recorded, and expressly repeated the standard form primary caution - including its express indication that anything Mr M. was not obliged to say anything, and that anything he wished to say might be given in evidence against him. Mr M. confirmed, (in response to questions from Officer Matthews in that regard), that he understood that.[^40]
• In this case, Mr M. accordingly received the standard “primary caution” at least twice before making of the statements that are the subject of this voluntariness application, including once immediately prior to Mr M. making of the relevant statements. In that regard, I am mindful of our Court of Appeal’s emphasis that the provision of such a caution is neither a requirement nor a guarantee of voluntariness.[^41] At the same time, however, I also bear in mind appellate authority indicating that provision of an express caution in the standard form may go a long way towards establishing, beyond a reasonable doubt, that an accused had the requisite awareness of consequences contemplated by the “operating mind” requirement.[^42]
• In this case, as noted above, Officer Matthews nevertheless went further, and also provided, in its standard form, what generally is known as a “secondary caution”; i.e., a caution essentially emphasizing to an accused person that the right to silence, (already conveyed by the primary caution), still applied at the time of the police interview, regardless of anything further that other police officers may have said to the accused which directly or indirectly might have suggested the accused had any obligation to speak to the police. The standard form of that “secondary caution” was read out to Mr M. during an exchange which also included Officer Matthews making it clear, in additional lay terms, what the secondary caution was meant to convey. In response, Mr M. made it clear that he understood, and that no other officer or anyone in a position of authority had said anything to suggest he should be speaking with the police.[^43]
• During the interview itself, Mr M. himself repeatedly confirmed that he was aware of his right to remain silent.[^44] In cross-examination, he similarly confirmed that he understood the cautions that he was given, and that he had the right to remain silent, which is why he repeatedly responded “yes” to questions asking if he had that understanding.
• During the interview, Mr M. himself also expressly indicated his awareness that what he was choosing to say to police could be used in evidence against him, and that making statements to Officer Matthews carried the potential for adverse consequences; i.e., that it might “sting” him.[^45]
• More generally, the overall impression left by Mr M.’s remarks, during the interview, was that of a person very much aware of the reality that the statements he was making to Officer Matthews could have significant implications for how the matter would be approached going forward, and who made what effectively was a strategic tactical decision to speak in that regard to further his self-interest. In particular, the interview is replete with comments by Mr M. repeatedly and proactively disparaging the complainant and the complainant’s credibility, emphasizing his own noble motives while minimizing his own potential misconduct, and asserting that he actually was victimized economically and sexually by the complainant rather than the other way round.[^46] This is not to suggest, in any way, that what Mr M. was saying to the officer may or may not have been true. For present purposes, however, in my view, the reasonable inference is that Mr M. was very cognizant that his statements to Officer Matthews might be used as evidence in the case, both against him and for him – with the former obviously being the point emphasized by the primary caution, and a key component of satisfying the basic “operating mind” requirement.

[79] I have noted and emphasized such considerations because, in my view, they underscore a basic reality that Mr M., in this particular case, was aware of his right to remain silent, and conscious of the reality that anything he chose to say to the police and Officer Matthews in particular could be used against him in criminal proceedings.

[80] In other words, I think such considerations provide strong support for the view that, insofar as the interview of Mr M. is concerned, this case involves an accused with an operating mind that was very much engaged during the relevant police interview with Officer Matthews.

[81] In the course of testimony from Mr M., and submission by counsel, emphasis was placed on the fact that Mr M. was unfamiliar with criminal law procedure, confused by certain questions posed by Officer Matthews, and was not provided with detailed information about the underlying complaints that had been made, or a more thorough explanation as to what was meant by “sexual assault” and “sexual exploitation” until the interview was nearing its end. For example:

• Mr M. emphasized that he had no prior involvement with the criminal law, that nothing on “fake” television had prepared him for it, (despite his acknowledged viewing of references therein to the right to remain silent), that the advice he had received from legal aid duty counsel was simply “legal mumbo-jumbo” which he had not understood,[^47] that he did not know at the time that he should be personally retaining and consulting a lawyer specializing in criminal law, and that he “didn’t really understand half the things” being said to him by Officer Matthews.
• Mr M. said he was confused by indications from Officer Matthews that the officer was not focused on consensual sex, or on any suggestion of illegality based on the complainant being under the legal age of consent at the time of the events in question. Mr M. said that, when he heard such statements, he became focused in his mind on sexual things the complainant may have done to Mr M. without the consent of Mr M., on the age discrepancy between himself and the complainant, and on whether Officer Matthews somehow was trying to “trick him” into saying things that might be incriminating.
• More generally, Mr M. emphasized that he also was unable to determine, at the time, why Officer Matthews was asking certain questions, and “where he was going” with certain lines of questioning.
• Mr M. said that he was confused by Officer Matthews’ explanation as to the meaning of sexual exploitation, insofar as it made references to ages of 16 and 17; i.e., ages beyond the age of 14 years, which Officer Matthews had said was the applicable age of consent.
• It was said that Mr M. was not made aware of the true nature of the complainant’s allegations until Mr M. had provided “the bulk of his statement”.
• More generally, it was said that Mr M. subjectively may not have fully appreciated the legal jeopardy he was in when making his statements to Officer Matthews – although he admittedly knew at the time that he had been arrested in connection with sexual offences relating to the complainant, had been informed of the charges three times, (by the arresting officer, the booking sergeant and the interviewing officer), and that he realized the charges were serious.

[82] With respect, even if I accepted the assertions of Mr M. in that regard, (which I am not inclined to do, for the other reasons noted herein undermining his credibility), in my view such arguments essentially attempt to elevate the “operating mind” requirement above its basic essential requirements.

[83] In that regard, the limited nature of those requirements bears repeating.

[84] Again, as noted above, the Supreme Court of Canada has explained that the relevant “operating mind” requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”.[^48]

[85] The limited nature of the threshold that has to be met in that regard also has been described and emphasized by the Supreme Court of Canada in the following terms:

The operating mind test … requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying, and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further, and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest.[^49] [Emphasis added.]

[86] It seems to me that the arguments being advanced by Mr M. and his counsel essentially do try to go further; i.e., by arguing that Mr M. was not capable, in the circumstances, of making good, wise or fully informed choices.

[87] For the reasons outlined above, I have no doubt that Mr M., at the time of the relevant police interview, possessed an “operating mind” in the sense required by the authorities.

POLICE TRICKERY

[88] In my view, the case at bar involved no police trickery of the sort addressed by the Supreme Court of Canada in R. v. Oickle, supra, and such trickery accordingly is not a relevant factor for present purposes.

[89] At most, it was said that a number of Officer Matthews’ comments about what he was and was not interested in investigating were misleading.

[90] In particular, it was said that Officer Matthews unfairly confused and misled Mr M. by making references to the officer not being interested in “consensual” sex, and to the stated ability of a 14-year-old to grant such consent, such that there would be “nothing illegal” about a 14-year-old giving valid consent to sexual activity.

[91] In my view, Officer Matthews was making no attempt to deliberately deceive or confuse Mr M.[^50]

[92] No suggestion to that effect was put to Officer Matthews during the course of cross-examination, and it seems to me that, at worst, Officer Matthews made a poorly executed attempt to distinguish, in lay terms, consensual sex and sexual interference on the one hand, (i.e., offences which were not the focus of his investigation), from sexual assault and sexual exploitation on the other, (i.e., the offences which were the focus of his investigation).[^51]

[93] Even if the effect of that attempt inadvertently may have been confusing from the perspective of Mr M., in my view it cannot be regarded as deliberate “trickery”.

[94] Moreover, to the extent such misleading comments by Officer Matthews might be characterized as “police trickery”, I do not think they rise to the level of police trickery contemplated by the Supreme Court of Canada in R. v. Oickle supra, and other decisions, that is required to vitiate the voluntariness and admissibility of an accused’s statements to the police.

[95] In that regard, I am mindful of the Supreme Court of Canada’s emphasis that, in contrast to consideration of threats and promises, oppression and the need for an “operating mind”, use of police trickery is not only related to voluntariness, (insofar as it may have induced an accused to make a statement that is unreliable and untrue), but involves a distinct inquiry insofar as it also has the more specific objective of maintaining the integrity of the criminal justice system.[^52]

[96] However, I also am mindful of the Supreme Court of Canada’s emphasis on bearing in mind the twin goals of protecting the rights of an accused without unduly limiting society’s need to investigate and solve crimes, and its acknowledgement that a level of police trickery is tolerated so as not to frustrate the latter goal. In particular, I think it helpful to bear in mind the Supreme Court’s indications, in relation to alleged police trickery and voluntariness, that:

• Courts should be wary not to unduly limit police discretion.[^53]
• The investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The police, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not, through the confession or voluntariness rule, be hampered in their work. What should be repressed vigorously is conduct on the part of the police that shocks the community.[^54]
• There may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community.[^55] However, the situations and occasions deserving such “immediate and vigorous rebuke” will be “very rare” and “very few”.[^56] In particular, to meet that standard the trick resorted to by the police must be “a dirty trick” that “shocks the community”, and that is a “very high threshold”; a threshold “higher … than that to be attained to bring the administration of justice into disrepute in the context of a violation of the Charter”.[^57]
• Examples of police trickery that might “shock the community”, in the sense required, include the following: a police officer pretending to be a lock up chaplain and hearing a suspect’s confession; a police officer pretending to be a duty legal-aid lawyer to elicit incriminating statements from an accused; and police injecting truth serum into a diabetic suspect, pretending it is the suspect’s daily shot of insulin, in order to use resulting statements in evidence.[^58]

[97] In my view, the possible “police trickery” of Officer Matthews in this case obviously pales in significance to the examples provided by the Supreme Court of Canada, and does not rise to the very high threshold required to satisfy the “community shock test”.

[98] Nor do I see anything in the evidence to suggest that any conduct of Officer Matthews, in that regard, somehow undermined the reliability of what Mr M. may have told him.

[99] In short, to the extent the comments of Officer Matthews may have been misleading and constitute “police trickery”, (which I am not inclined to believe or accept, given the absence of any intent on the part of Officer Matthews to mislead or deceive Mr M.), in my view there was no police trickery rising to the “very high threshold”, described by the Supreme Court of Canada, of a “dirty trick” that would “shock the community”.[^59]

[100] There accordingly was no police trickery in this case that would undermine voluntariness or the reliability of statements made by Mr M. to Officer Matthews.

PARTICULARITIES OF THE ACCUSED

[101] Consistent with its emphasis on assessments of voluntariness being a context specific exercise, as noted above, the Supreme Court of Canada has emphasized the need, when making such assessments, to be sensitive to the particularities of the individual suspect.[^60]

[102] In this case:

• Mr M. was 52 at the time of the interview, and therefore neither young nor youthful.
• In my view, the impression left by Mr M. during the course of his recorded police interview, (and his testimony before me), was that of a mature, experienced and very intelligent person of considerable intellect, poise and self-composure.
• Mr M. frequently indicated, in response to questions and comments, that he understood what was going on. On isolated occasions during the interview when that was not the case, (e.g., after initial delivery of the secondary caution), Mr M. demonstrated his willingness to speak up and make his lack of understanding clear, before subsequently confirming that he had come to understand what was being communicated.
• Mr M. spoke firmly, with confidence and expansively, proactively offering information and frequently providing answers and narrative that extended well beyond specific questions or comments from Officer Matthews.
• At no point during the course of his police interview did Mr M. exhibit any loss of composure or self-control.

[103] In my view, these are not the hallmarks of a naïve, callow or inexperienced individual, more likely to have a compliant personality, or more prone to accepting police suggestions made during the course of a police interview.

[104] To the contrary, such considerations reinforce my impression that Mr M. was an experienced and worldly individual, more capable of withstanding the influence of threats, promises and/or oppressive conditions, to the extent any such factors may have been present.

Analysis – Voluntariness of statements made by Mr J. to Officer Howe

[105] I turn next to the statements made by Mr J. to Officer Howe during the course of his video recorded police interview on December 27, 2016.

[106] To a significant extent, in my view many of the comments I have made in relation to Mr M. and his situation apply to Mr J. and his situation as well.

[107] I accordingly will endeavour to avoid, during the following analysis relating to the statements of Mr J., undue repetition of additional principles and authorities I have cited during the course of my analysis relating to Mr M.

THREATS AND PROMISES

[108] In my view, the Crown has established that there were no express, implicit or veiled coercive threats or promises of any kind, on the part of the officers who dealt with Mr J., to induce a statement from him.

[109] Without limiting the generality of the foregoing:

• During the course of their testimony, Constable Marve, Sergeant Harding and Officer Howe all denied the making of any such threats, promises or inducements whatsoever to Mr J., and Constable Marve testified that Constable Hartery similarly made no such threats, promises or inducements in that regard. Mr J. did not challenge or contradict any of that testimony. I accordingly accept the testimony of the officers in relation to such matters.

• The evidence before me indicates that the officers treated Mr M., like Mr J., with courtesy and respect. Without limiting the generality of the foregoing:

  • Constable Marve testified, and I accept, that although Mr J. presented himself for arrest in the public lobby of London City Police headquarters, he was immediately presented with the option of having the formal arrest conducted in a more private place within the building; an option which he accepted.

  • At the outset of the videotaped statement, Officer Howe took further steps to confirm that Mr J. had been made aware of his rights to counsel and given an opportunity to call a lawyer but had declined, before asking Mr J. again if he wished to call a lawyer right then before the interview continued. When Mr J. responded by saying he was “not sure” if he wished to call a lawyer at that point, it was Officer Howe who proactively indicated the following: “If you’re not sure, maybe you should call”, and “You don’t have to, but I just want to make sure that you understand that you can at any time … contact a lawyer”. When Mr J. had expressly acknowledged those statements, Officer Howe asked Mr J. once again if he now wanted to call a lawyer, and Mr J. responded by saying: “I’d like to proceed a little bit and then decide.”[^61]

  • Before proceeding with the police interview, Officer Howe expressly repeated the standard primary caution, and provided Mr J. with the standard secondary caution, and received indications from Mr J. that he understood both. Officer Howe nevertheless proactively offered a further explanation of the secondary caution, noting it was intended to ask whether any other officer or person in authority had told Mr J. that he had to talk with Officer Howe, and Mr J. indicated the answer to that question was “No”.[^62]

  • During the videotaped statement or interview of Mr J., Officer Howe also spoke with Mr J. in an entirely civil manner, rarely raising his voice beyond a normal conversational tone. During such interaction, Mr J. was never touched or mistreated. In my view, there were absolutely no express or implicit threats of ill treatment or more punitive consequences for Mr J. if he failed to speak with Officer Howe. Nor, in my view, did Officer Howe make any comments in the nature of what our courts would regard as promises or inducements.

[110] In my view, nothing in the evidence before me suggested, in relation to Mr J., the making of any threats or promises of any “quid pro quo” offer of the type sufficient to raise or contribute to any reasonable doubt as to the voluntariness of Mr J.’s statements.

[111] In particular, there was nothing to suggest, in relation to Mr J., that the police offered some kind of inducement to obtain a confession that, standing alone or in combination with other factors, was strong enough to raise a reasonable doubt about whether the will of Mr J. had been overborne.[^63]

[112] Nor was there any “promised benefit…of such a nature that, when considered in light of the relationship between [Officer Howe] and [Mr J.], and all the surrounding circumstances of the confession, would tend to induce [Mr J.] to make an untrue statement”.[^64]

[113] In the course of his testimony, Mr J. candidly acknowledged that he understood that he had the right to remain silent, and that, to the extent he felt pressured to speak, that stemmed from:

• a personal upbringing that taught him to have “ultimate respect” for the police, producing a feeling that he felt he “had to” be open and honest and co-operate with the police; and
• a decision that, even though he had the right to remain silent, that would not be in his best interests because a decision not to speak might delay his release from custody.

[114] In my view, such concerns fall within the category of “self-generated” pressures and hopes which, as noted above, are not sufficient to vitiate a finding of voluntariness.

OPPRESSION

[115] Mr J. obviously is not a lawyer, and his submissions to me in relation to the Crown’s voluntariness application accordingly were not framed by express reference to the terminology employed in R. v. Oickle, supra, or similar authorities in this area.

[116] In his testimony and submissions, I nevertheless think it fair to say that Mr J. was suggesting, as his primary ground for resisting the Crown’s application, the existence of “oppressive circumstances” as a factor in possibly “breaking-down and vitiating” the voluntariness of his interview statements to Officer Howe.

[117] In particular, Mr J. emphasized that, at the time of the relevant police interview, he had recently been to hospital and was still feeling very tired and weak. In that regard, Mr J.’s testimony included the following assertions:

• that he had been released from hospital for less than a day before he turned himself into the police;
• that he had lost 30 pounds during his hospital stay;
• that he was physically and mentally weak, and feeling disoriented;
• that his primary desire at the time was a desire for more sleep, as he was feeling exhausted and tired; and
• that he went into a deep sleep when he was placed in a holding cell between the time of his arrest and the relevant interview, and that the officer coming to retrieve him had a hard time rousing him.

[118] All of that, in turn, essentially was said to have created circumstances that should be regarded as oppressive, to the point where his statements should not be considered voluntary.

[119] In that regard, Mr J. acknowledged that, at the time of the relevant interview, he admittedly understood that he was under arrest, the nature of the charges he was facing, (as he had seen such charges discussed in newspapers and on television), and that the charges were serious.

[120] Mr J. also did not dispute that he understood the words that were being spoken at the time as well as questions being asked during the interview, that his answers were not random but flowed from the questions that were being asked, and that he was very well spoken during the interview.

[121] However, Mr J. felt that his statements should not be considered voluntary because he did not have a full appreciation of the full context and details underlying the charges, and their possible implications.

[122] As for Mr J.’s failure to indicate any lack of understanding during the interview, (despite Officer Howe’s acknowledged request that Mr J. let him know if he had any difficulties in that regard), Mr J. said that he “understood the words” but “not necessarily their meanings”. When asked for an explanation in that regard, during cross-examination, Mr J. emphasized his view that “every word has multiple meanings” which “can be interpreted many ways”, and that he admittedly understood the words Officer Howe was saying “but not where his mind [i.e., Officer Howe’s mind] was going”.

[123] As for being “very well spoken” during the interview, Mr J. said that he was simply “always” very well spoken.

[124] I do not doubt that Mr J. was feeling abnormally tired and weakened at the time of his interview with Officer Howe.

[125] For present purposes, however, I do not think the circumstances of this particular case involved oppression in the sense required to vitiate the voluntariness of the statements made during Mr J.’s police interview.

[126] As noted above, the Supreme Court of Canada, at paragraphs 58-62 of R. v. Oickle, supra, provided descriptions and examples of when and how, “if the police create conditions distasteful enough”, (emphasis added), such oppressive circumstances may be sufficient to overbear a suspect’s will to the point of making him or her doubt his or her own memory, and/or offer a “stress compliant confession” to escape such conditions.

[127] Again, the Supreme Court offered an expressly non-exhaustive list of relevant factors in that regard, which included the following: “depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and aggressive, intimidating questioning for a prolonged period of time”.[^65] (Emphasis added.) Another possible source of oppressive conditions was said to be “police use of non-existent evidence”.[^66] (Emphasis added.)

[128] I have emphasized particular wording in the above passages from R. v. Oickle, supra, to highlight the Supreme Court of Canada’s apparent focus on the reprehensible creation and/or maintenance of oppressive conditions by the police; i.e., rather than the existence of some condition arising independently of any conduct by the police and/or police failure to address any condition of suffering of which they may not reasonably be aware.

[129] In any event, feeling tired and weak is obviously a matter of degree, and I find that, in the particular circumstances of this case, there was nothing in the circumstances underlying or surrounding the relevant police interview of Mr J. that were sufficiently “distasteful” or “inhumane” to overbear his will, make him doubt his memory in material respects, and/or offer any “stress compliant” confession to escape such circumstances.

[130] In that regard, I emphasize that I am mindful of the evidence I received that Mr J. had been unwell in the days leading up to his arrest and police interview. In that regard:

• As noted above, Mr M. indicated to Constable Aristone, at the time of Mr M.’ arrest on December 22, 2016, that Mr J. had gone to hospital that day with flu-like symptoms; and
• Shortly before the end of his interview with Officer Howe, Mr J. informed the officer that he was mixing up his dates as he was “not quite up to snuff”, had been in the hospital for five days, and was taking antibiotics in addition to his long term HIV medication.[^67]

[131] In my view, however, a number of other considerations offset and effectively counter any suggestion that Mr J.’s condition was sufficiently severe or debilitating to render the circumstances of the interview sufficiently “distasteful” or “inhumane” in the sense noted above. In particular:

• I think it must be remembered that the arrest of Mr J., and therefore the questioning that took place shortly thereafter, effectively took place at a time of Mr J.’s own choosing; i.e., when Mr J. voluntarily chose to turn himself into the police, presenting himself unaccompanied, and in no apparent physical distress, in the public lobby of London City Police headquarters, shortly before mid-day on December 27, 2016. Implicit in Mr J.’s actions, I think, is an indication that, regardless of whether Mr J. may have felt very unwell at times before the interview, he himself felt sufficiently rested, recovered and well enough to present himself for arrest in the manner he did on December of 26, 2016, at a time of his own choosing.
• Constable Marve testified, and I accept, that during the time he and Constable Hartery interacted with Mr J., there were no communication difficulties, and no concerns whatsoever about Mr J.’s sobriety or mental health. All of their interactions were described as uneventful and “neutral”.
• In his testimony, Officer Howe similarly confirmed that he encountered no difficulties whatsoever communicating with Mr J., who at all times appeared to understand what the officer was saying, and gave appropriate and logical responses to comments and questions.
• I also think it significant that, throughout the interview, apart from indicating difficulty remembering dates, Mr J. apparently felt no need to say anything about his medical condition until after the primary interview had been completed, at which point Officer Howe had left the interview room and returned a short time later indicating he felt the interview was over unless there was something else Mr J. wanted to mention or ask.[^68] Even then, Mr J. apparently thought it unnecessary to make any comments about his health until the very end of the interview. Moreover, although he mentioned that he was “not quite up to snuff” and had been in the hospital for five days, (as noted above), he also indicated to Officer Howe that his direct medical care was done and he was “just on a lot of antibiotics”, as well as his other HIV medications.
• At no time during the interview did Mr J. indicate that he required medical attention, or ask if the interview could be postponed or paused for rest or any other health-related reasons.
• In any event, this was not a case of the police interrupting or withholding medical treatment to insist on the arrest and/or questioning of an accused at a time when he was known to be significantly unwell.
• As in the case of Mr M., the relevant police interview of Mr J. took place in an interview room, (perhaps the same interview room), that appeared to be clean and bright, with a table and chair for use by Mr J.. At no time during the interview does Mr J. express any discomfort relating to the room or its furnishings.
• The time at which he presented himself to police for arrest and questioning was one at which he reasonably could be expected, by the police, to have had sufficient sleep and nourishment. In any event, there was no evidence to suggest or indicate that Mr J. gave any overt indication that he was tired, hungry or thirsty. Certainly, Mr J. made no comments or requests in that regard.
• During the entirety of his interview session with Officer Howe, Mr J. similarly made no comments whatsoever indicating that he was in need of a toilet to relieve himself.
• Mr J. displayed no signs of personal discomfort, and instead continued to sit calmly and quite upright in his seat, leaning forward, with his elbows on the table, to engage directly and consistently with Officer Howe throughout the interview.
• Throughout his time in the interview room, Mr J. remained fully clothed, (i.e., with a long-sleeved sweater, trousers and shoes), and apparently was permitted to continue wearing his own clothing following his arrest and throughout his ensuing interview with Officer Howe.
• As noted above, there is no dispute that Mr J. was properly advised of his right to counsel upon arrest, and that the police repeatedly offered to facilitate Mr J.’s exercise of that right prior to commencement of his interview - with Mr J. himself making the decision, (confirmed at the outset of his interview), that he wanted to hold off on speaking with any lawyer..
• In my view, Officer Howe did not conduct his questioning in an aggressive or intimidating fashion. To the contrary, and as noted above, I think the officer treated Mr J. with courtesy, respect and care, assuming a seated position like that of Mr J., (unless the officer was entering or leaving the room), without making any physical contact with Mr J., and never raising his voice.
• The entire interview was quite brief. In particular, it started at 1:34pm and concluded at 2:04pm, (with Officer Howe having left the room for approximately one minute starting at 1:57pm), such that Mr J. was in the interview room for no more than 30 minutes.
• Like Officer Matthews, Officer Howe made no use of fabricated evidence.
• Mr J. seemed somewhat reserved and soft spoken at times, and measured in his responses. However, he did not appear to be visibly upset or agitated. To the contrary, it seemed to me that he remained extraordinarily calm, composed, articulate, logical and well-spoken throughout the interview, without any slurring of words or other verbal indications of fatigue. Apart from his stated inability to give accurate dates, he seemed to have no difficulty whatsoever giving entirely coherent and appropriate answers to questions, and provide a logical narrative when required.
• At no point, during the interview, does Mr J. express any inclination or desire to keep silent, or indicate any unwillingness to answer any of Officer Howe’s questions owing to a desire for sleep, or for any other reason. Nor does Mr J. ever give any indication that he would like the questioning or interview to end.

[132] In short, although Mr J. may have been feeling abnormally weak and tired, I think there is no evidence to suggest the existence of any oppressive circumstances sufficient to “break down” Mr J.’s independent will and/or ability to make a voluntary decision as to whether he would continue speaking to Officer Howe.

[133] I find that, like Mr M., Mr J. simply chose, voluntarily, to keep speaking during his interview.

[134] In my view, there were no oppressive circumstances that vitiated the free will of Mr J. in that regard.

OPERATING MIND

[135] I similarly find that, during the relevant police interview, Mr J. had an “operating mind” in the sense required to permit a finding of voluntariness.

[136] In that regard, I once again have taken into account that Mr J. is a lay person without legal training, and that his testimony and submissions accordingly may not have been framed by the terminology employed by the Supreme Court of Canada in R. v. Oickle, supra.

[137] In doing so, I have approached the matter on the basis that Mr J. also seemed to be suggesting that, during his police interview with Officer Howe, he lacked an “operating mind” in the sense required for voluntariness, owing to his tired and weakened condition.

[138] However, as noted above, the Supreme Court of Canada has explained and emphasized repeatedly that the relevant “operating mind” requirement has a specific meaning and limited requirements in this context, and “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”.[^69]

[139] In this case, Mr J. may have been feeling tired and weakened during his interview. He indicated at the time that he was having trouble with dates, and that he was confused as to why the criminal proceeding was happening; i.e., as he knew the relationship he and Mr M. had with the complainant did not end well, but also felt the two men had always tried their best in relation to the complainant.

[140] In his testimony, Mr J. also emphasized that, because of his tired and weakened condition, he felt he lacked the ability to appreciate the full implications and detailed background of the charges, and all the possible implications of where Officer Howe’s mind was “going” with his questioning.

[141] However:

• As noted above, Constable Marve testified, and I have accepted, that during the time he and Constable Hartery interacted with Mr J., there were no communication difficulties, and no concerns whatsoever about Mr J.’s sobriety or mental health. All of their interactions were described as uneventful and “neutral”.
• The testimony of Sergeant Harding confirmed that, when he was processing and booking Mr J. into the cell area of London City Police headquarters, he similarly encountered no problems communicating with Mr J., that Mr J. had no difficulty understanding him, and that there were no concerns whatsoever about Mr J.’s mental health or sobriety.
• Throughout the course of the relevant police interview, the statements of Mr J. were coherent, articulate, intelligent, and appropriately responsive to the questions and comments of Officer Howe.

[142] In the result, I think there is no evidence to indicate or suggest that Mr J. lacked the cognitive ability to understand what he was saying to Officer Howe. Indeed, Mr J. admitted and acknowledged that he had that basic understanding – even if he lacked his usual ability to consider, in detail, all the possible ramifications of what was being said.

[143] As for the second component of the “operating mind” requirement described above, (i.e., requiring Mr J. to have awareness or knowledge that what he was saying to Officer Howe could be used “to his detriment”, in “proceedings against” him), I think the evidence before me satisfies that requirement as well. In that regard:

• As noted above, it was not disputed that Mr J. was properly cautioned in that regard after his arrest. Again, that included a primary caution in the standard form, duly administered by Constable Marve.
• It similarly was not disputed that, prior to his police interview with Officer Howe, Mr J. repeatedly was advised of his right to counsel, (i.e., by Constable Marve and Sergeant Harding), that the police offered to facilitate telephone contact between Mr J. and duty counsel, and that Mr J. declined that opportunity.
• Officer Howe expressly advised Mr J., at the very start of the interview, that everything being said in the interview room was being audio and video recorded. Mr J. expressly confirmed his understanding that was so.[^70]
• Officer also expressly indicated to Mr J. at the outset of the interview, “before [going] any further”, that if Mr J. did not understand anything, Officer Howe wanted Mr J. to tell him that.[^71] However, throughout the entirety of the interview, Mr J. thereafter never indicated that he did not understand what the officer was saying.[^72]
• At the outset of the interview, Officer Howe also took care to expressly repeat the standard form “rights to counsel”, (accompanied by a suggestion that Mr J. exercise those rights if he was really not sure of whether he should), as well as the standard form “primary caution” and standard form “secondary caution”, (proactively including an additional lay explanation with the latter), and Mr J. expressly indicated his understanding in respect of each.[^73]
• As noted above, administration and acknowledged understanding of the primary caution, (even repeated, as in the case of Mr J.), is not a guarantee of voluntariness. However, as also noted above, it can go a long way, (as I think it does in this case), towards establishing, beyond a reasonable doubt, that an accused such as Mr J. had the requisite awareness of consequences contemplated by the “operating mind” requirement.[^74]
• In this case, Mr J. expressly confirmed that no other officer or person in authority had told him that he had to speak with Officer Howe.[^75]
• In cross-examination, Mr J. also confirmed that he understood he was under arrest, the nature of the charges against him, that the charges against him were serious, that he obviously was speaking with a police officer, the cautions that had been administered, and his right to silence. In his testimony, he confirmed that he nevertheless made a decision to speak all the same.

[144] For all such reasons, I find that Mr J., at the time of his police interview with Officer Howe, had an “operating mind” in the sense required.

POLICE TRICKERY

[145] In this case, there was no evidence or suggestion, I think, that there was any form of police trickery, as far as Mr J. was concerned.

[146] To the extent necessary, however, I independently find and confirm that the evidence before me contains nothing to suggest any form of deceit or other police trickery that would undermine voluntariness or the reliability of statements made by Mr J. to Officer Howe.

[147] Without limiting the generality of the foregoing, at no point did Officer Howe mislead Mr J. with inaccurate statements, or refer to any fabricated evidence.

[148] Certainly, there was no police trickery rising to the “very high threshold”, described by the Supreme Court of Canada, of a “dirty trick” that would “shock the community”.[^76]

PARTICULARITIES OF THE ACCUSED

[149] As noted above, the Supreme Court of Canada has emphasized that voluntariness determinations are case-specific, and that the court, when making such assessments, accordingly must be sensitive to the particularities of the individual suspect.[^77]

[150] In this case:

• Mr J. also was 52 at the time of his police interview and, like Mr M., accordingly was neither young nor youthful at the time.
• Although somewhat reserved and soft-spoken at times, in my view the overall impression left by Mr J. during the course of his recorded police interview, (and his testimony before me), was that of a mature, calm, experienced and extremely articulate and precise person of obvious intelligence, who exhibits considerable self-control.
• During his interview, Mr J. frequently indicated, in response to questions and comments, that he understood what was being discussed. Perhaps just as important, (and as noted above), Mr J. never indicated that he did not understand anything Officer Howe was saying, even though the officer had asked him to do that at the start of the interview.
• Although Mr J. often spoke softly and slowly, the content of his answers and comments was always responsive, logical and organized. Like Mr M., Mr J. also frequently provided answers and narrative that extended well beyond specific questions or comments from the officer conducting the interview.
• At no point during the course of his police interview did Mr J. exhibit any loss of composure or self-control. Nor did he hesitate, except in relation to specific date information.

[151] In my view, Mr J. was not someone who came across as inexperienced, naïve, or prone to accepting police suggestions made during the course of an interview. When suggestions were made with which he disagreed, he did not hesitate to say so.

Conclusions regarding voluntariness and Crown application

[152] Again, a trial judge must consider all relevant factors when reviewing the voluntariness of an accused’s statements, always keeping in mind the twin goals or objectives of protecting the rights of an accused without unduly limiting society’s need to investigate and solve crimes.

[153] I therefore am mindful of the possibility that, despite the strength or weakness of various voluntariness factors considered individually, the combined effect of such factors might, in some cases, raise a reasonable doubt as to whether the particular statements of an accused were voluntary in the sense required.

[154] In this case, however, I do not think they do, in relation to either of the police interviews I was asked to consider.

[155] Without limiting the generality of the foregoing, for the reasons outlined above:

• In my view the context of the statements made by Mr M. to Officer Matthews and by Mr J. to Officer Howe, during each accused’s respective formal police interview, involved no improper threats, promises or circumstances of oppression, in the sense required to vitiate voluntariness.
• Moreover, at all material times, each accused clearly had an “operating mind” in the sense required for voluntariness of statements, and was aware of his right to silence, the fact he was speaking to a police officer, and the reality that anything he said could be used against him in criminal proceedings.
• Furthermore, in my view, neither accused was subjected to any form of police trickery, in the sense required to raise any reasonable doubt about the voluntariness of the statements each accused provided during his police interview.

[156] Throughout the police interview of each accused, each accused voluntarily chose to keep talking.

[157] In my view, none of the factors identified by the Supreme Court of Canada in R. v. Oickle, supra, either separately or together, give rise to any reasonable doubt concerning the voluntariness of either accused’s statements to the questioning officer during either police interview.

[158] In other words, I think the Crown has proven, beyond a reasonable doubt, the voluntariness of the post-arrest statements made by Mr M. to Officer Matthews, and the voluntariness of the post-arrest statements made by Mr J. to Officer Howe, according to the mandated analysis. Such statements accordingly should be admissible at trial, at least in terms of their being voluntary.

[159] Perhaps it goes without saying, but I will add, for the sake of completeness, (since the applicable standard to be met by the Crown in relation to its application is proof beyond a reasonable doubt, and each accused decided to provide testimony in relation to the application), that I have been mindful throughout this exercise of the Supreme Court of Canada’s admonition and reminder, in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, that reasonable doubt is something that can arise in numerous ways, and certainly is not determined simply by whether I find the testimony of an accused more or less credible than the testimony of other witnesses.

[160] In this case, however, suffice it to say that, in relation to each accused, neither his testimony, nor any of the remaining evidence that was presented and which I accepted, gave rise to any reasonable doubt in my mind about the voluntariness of the statements provided during his interview.

[161] The Crown’s application herein accordingly is granted.

[162] In particular, an order shall go whereby:

a. The statements made by J.K.M. during the course of his police interview with Officer John Matthews, on December 22, 2016, are declared to be voluntary.

b. The statements made by J.J. during the course of his police interview with Officer Dale Howe, on December 27, 2016, are declared to be voluntary.

c. The Crown shall be permitted to introduce the aforesaid statements as evidence in the trial against both of the accused currently scheduled to take place before a judge and jury starting March 18, 2019.

“Justice I.F. Leach”

Justice I.F. Leach

Date: March 15, 2019

Schedule “A”

Required revisions to transcript of police interview of J.K.M. conducted on December 22, 2016

• At page 1, line 29, the answer should read: “…what he originally… Yeah.”
• At page 2, line 23, the initial words of that line should read: “and you have been probably read what’s called”.
• At page 3, line 7, the question should read: “No – no head shakes and…”
• At page 7, line 24, the latter portion of the answer should read: “you know, his name – is his name W. or C.”
• At page 9, line 13, the last words on the first line of the question should read: “don’t want to be associated with them, but”
• At page 9, line 7, the answer should read: “I don’t know who he was.”
• At page 10, line 26, that portion of the answer should read: “is to help this kid have a better life and, as I say, I had thought”
• At page 12, line 27, that portion of the answer should read: “us this, and this is his rights [sic] and – and they – you’re paying”
• At page 14, line 14, that portion of the answer should read: “and they got taken away from him. I was like, ‘Well where did’ ”
• At page 14, line 19, that portion of the answer should read: “”grandma and now, and would then turn around and kiss her ass, so”
• At page 14, the portion of the answer bridging lines 31 and 32 should read: “and you know, and I must say, yeah, at the end”
• At page 15, line 8, the answer commencing there begins with the following words: “I met him a couple years after that too”
• At page 18, line 17, that portion of the answer should read: “that I – I’d bump into ex-girlfriends, you know, that he had, and”
• At page 19, line 4, the answer that begins there starts with the following words: “…say that he’d call me, you know, like you”
• At page 19, lines 7 and 8, that portion of the answer should read: “he had on – I thought – I said, ‘You’re supposed to be in the home, J.’ And, ‘Oh well, I didn’t feel like going today.’”
• At page 21, line 27, that portion of the answer should read: “believe the young’. Like, why would he do that?”
• At page 21, line 32, the opening words of that answer should read: “Because I was coming to be like the little father”
• At page 22, line21, the line should read “says it was only pot but we – like I’m telling you it’s something”
• At page 23, line 1, the line should read: “went up and gave him a ‘whap’ [sic], you know, not a hard thing”
• At page 24, line 23, the answer should read: “Well, and then left her…”
• At page 25, line 2, the line should read: “or you know whatever shopping mart, so I would go to see her”
• At page 26, line 28, the line should read: “had a sexual relationship. You – it sounds like you were…”
• At page 26, line 29, the line should read: “I’d try, I – and every time he came back I told”
• At page 27, line 24, the line should read: “Sometimes the Men’s Mission, if he got”
• At page 28, line 28, the line should read: “ ’J. is like with two people that I know are into internet porn. “
• At page 29, line 11, the line should read: “And there was a lot of idiots in Toronto that…”
• At page 29, line13, the line should read: “…did that, right?”
• At page 34, lines 13-14, the answer should read: “So, you know, no religion there. The grandmother is.”
• At page 36, line 1, the line should read: “And he usually ran out – he’d buy cigarettes”
• At page 37, line 20, the line should read: “He would wait until we’d go out and then – “
• At page 38, line 16, the line should read: “ Like, and by this point, like he was going”
• At page 38, line 26, the line should read: “Around the holidays. Yeah.”
• At page 38, line 28, the line should read: “you know, live here’, I said, you know, ‘right now’. I said,”
• At page 39, line 17, the line should read: “He beat himself up…and he only had, like, a couple of”
• At page 42, line 28, the line should read: “ – I had a hard time to – even trying to be the top or whatever.”
• At page 43, line 8, the answer should read: “Well, that’s what he said he wanted.”
• At page 43, line 10, the answer should read: “And that was the whole point.”
• At page 45, line 6, the answer should read: “I don’t even have a vibrating dildo.”
• At page 45, line23, the line should read: “remember J. … the way he reacted when you had said that, and she”
• At page 46, line 19 should read: “Like, if he says that – yeah, yeah, I might have met him”
• At page 46, line 30 should read: “was very much like – so then he went away and I never saw him again”
• At page 48, line 16 should read: “Um, so another – when asked to describe you a bit,”
• At page 49, line 23, the quotation mark before the word “Were” should be removed.
• At page 50, line 10 should read: “wants it, like, rough sometimes and he wants to do things, and he – “
• At page 52, line 1 should read: “As so… I didn’t actually strike him, strike”
• At page 52, line 11, the answer should read: “It’s that ear boxing thing, right?”
• At page 52, line 22 should read: “it was something way worse – ‘Where was he?’ He’s like, ‘Where”
• At page 52, line 26 should read: “He just goes down to the Sally Ann. You can get”
• At page 55, line 13 should read: “And, uh, thinking that would make it all”
• At page 55, line 25 should read: “And I was kind of like getting right out”
• At page 58, the answer should read: “I’ve got this cold.”
• At page 59, line 20 should read: ‘Get. Stop it. Get out of there.’ He would just force it”
• At page 59, line 25, the line should read: “because, you know, he would want me to be like that.”
• At page 59, line 28, the line should read: “uncomfortable with that – and if that’s what he told me about”
• At page 60, line 3, the line should read: “…that I had to witness when I went over”
• At page 60, line 6, the transcript incorrectly combines a one word question/comment by Officer Matthews with the continuation of an answer by Mr M., wrongly attributing both comments to the officer. The line should read “Q. Okay.”, followed by “A. …living with her father somewhere on”
• At page 61, lines 6 and 7, the transcript incorrectly combines portions of questions and answers and wrongly attributes certain comments of the officer to Mr M. while making additional errors. The question at line 6 should read: “What – what I mean is…” The answer beginning at line 7 should begin as follows: “I wouldn’t have been rough”
• At page 62, line 11, the answer should read: “But not along those lines, though. Like, no way.”
• At page 62, line 30, the answer should read: “He was very forceful…and ‘Come on’ “
• At page 63, line 2, the answer should read: “His father paid me sometimes.”
• At page 63, line 8, the line should read: “didn’t also…kind of get that he kind of should be contributing”
• At page 64, line 6, the line should read: “Keep your – your room clean. That’s pretty much”
• At page 65, line 22, the line should read: “Now, I – I asked him, ‘ caused had asked him the”
• At page 67, line 20, the answer should read: “We already talked about it the night before.”
• At page 68, line 31, the line should read: “to – We’ll get out of here, and I have a very small amount of”

Schedule “B”

Required revisions to transcript of police interview of J.J. conducted on December 27, 2016

• At page 2, line 18, the answer should read: “[Specified London Address]”.
• At page 6, line 1, the answer should read: “He normally went by J.”
• At page 6, line 7, the line should read: “…and one of his favourite places to go and do”
• At page 6, lines 21-22 should read: “that he is, and kind of – we all took pity on him and welcomed him into our home, and he had his own bedroom and,”
• At page 7, line 18 should read: “school, and so that’s what we tried to help him with school and”
• At page 8, line 3, the answer should read: “I believe he was 14, 15.”
• At page 11, line 13, the line should read: “hair’, and you know, and ‘Hit me”, and was just, like, ‘No, no “
• At page 11, line 29, the line should read: Um – oh, I understand that often alcohol or maybe”
• At page 12, line 11, the question should read: “Was it an issue, drinking at all with anyone?”
• At page 14, line 15, the line should read: “Did he contact them at all while he lived”
• At page 15, line 12, the question should read: “And then came back?”
• At page 16, line 5, the line should read: “about? Or anything you just feel is important to say?”
• At page 16, line 27, the first words of the answer should read: “Well, I’m slowly - I mean, that’s – that’s”
• At page 21, line13, the line should read: “as long as you agree to those, they you – You are, though, you”

[^1]: During the voir dire hearing before me, I was informed that Mr J. was not representing himself in these proceeding by choice. However, he felt he lacked the financial resources to retain counsel himself, and his application for Legal Aid funding, and associated appeals, had been denied. [^2]: At the time of the underlying investigation herein, Officer Matthews held the rank of Detective Constable. With his later reassignment to the Use of Force Training Section in 2017, he returned to the rank of Constable. Intending no disrespect to the officer, but to avoid any possible confusion herein from the officer’s changing rank, I have referred to him throughout these reasons as “Officer Matthews”. [^3]: As noted above, the actual charges actually laid against the respondents, from the outset, have been sexual assault and sexual exploitation; i.e., rather than sexual assault and sexual interference. However, in his written “will say” statement and oral testimony before me, Constable Aristone repeatedly indicated that, when placing Mr M. under arrest, he made reference to “sexual assault and sexual interference”. To the extent Constable Aristone made reference to “sexual interference” rather than “sexual exploitation” at the time of the arrest, he therefore obviously misspoke – and I note that Officer Matthews did the same at one point during his police interview of Mr M.; i.e., at p.3, line 31 of the transcript. However, no one suggested during the hearing before me that anything turned on those errors, as far as this application is concerned, and that is my view in any event. In that regard, I note that Officer Matthews, at the outset of his interview of Mr M., correctly noted that the actual charges against Mr M. were sexual assault and sexual exploitation. See the transcript of the relevant police interview, at p.1, line 25. Moreover, in his testimony before me during the voir dire, Mr M. confirmed that he understood, at the time of the interview starting, that the charges he was facing were sexual assault and sexual exploitation in relation to J.W. [^4]: The standard form of those “rights to counsel” was presented during the course of the application evidence before me. It no doubt may be familiar to many dealing with such matters, but for the sake of completeness, the first part of that standard form of “rights to counsel” reads as follows: “I am arresting you for [charge or charges]. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now. Do you understand?” The second part of that standard form of “rights to counsel, (to be put to an accused immediately after receiving a response to the aforesaid question of whether the accused understood what was said), reads as follows: “Do you wish to call a lawyer right now?” [^5]: The standard form of that “primary caution” also was presented during the course of the application evidence before me. It too no doubt is familiar to many dealing with such matters, but for the sake of completeness, the first part of that standard “primary caution” reads as follows: “You are charged with the offence of [charge or charges]. You are not obliged to say anything unless you wish to do so. But whatever you do say may be given in evidence. Do you understand?” The second part of that standard form “primary caution”, (to be put to an accused immediately after receiving a response to the aforesaid question of whether the accused understood what was said), reads as follows: “Do you wish to say anything in response to these charges?” [^6]: Constable Aristone testified, and I accept, that there was no conversation with Mr M. in relation to the charges at any point from the time of the arrest, rights to counsel and primary caution until the time of Mr M.’ arrival in the unit’s cell area and presentation to Sergeant Harding – apart from Constable Aristone apparently mentioning at least part of the name of the complainant to Mr M. at or around the time of his arrest. (Mr M. indicated, during his interview with Officer Matthews, that Constable Aristone had clarified that the matter concerned a “J.” other than Mr M. or Mr J.) Any further conversation between the two men was limited to Mr M. providing Constable Aristone with a requested telephone number which might be used to contact Mr J. Without limiting the generality of the foregoing, apart from an indication of charges at the time of Mr M.’ arrest, there was no further discussion about the nature of the charges, the reasons for the charges, or who the complainant may have been. Indeed, Constable Aristone did not have any information about the reasons for the charges. He had simply received information, via the computer in his police cruiser, indicating that he was being detailed to follow up on arresting the respondents in relation to the said charges. [^7]: Sergeant Harding confirms that detainees presented to him have been advised of their rights to counsel, and understand those rights, before then asking again whether detainees wish to exercise those rights to counsel; i.e., by being put in telephone contact with a lawyer of their choice or legal aid duty counsel. Sergeant Harding does not make inquiries concerning whether detainees have received cautions. Sergeant Harding also confirmed that he had no substantive discussion with Mr M. about the charges he was facing, apart from simply identifying them. [^8]: At the time of the underlying investigation herein, Officer Howe held the rank of Detective Constable, and was assigned to the Sexual Assault Unit of the London City Police. He has since retired, and accordingly is now simply addressed as “Mr Howe”. Intending no disrespect to Mr Howe, but to avoid any possible confusion herein from his changing capacity, I have referred to him throughout these reasons as “Officer Howe”. [^9]: Officer Howe testified, and I accept, that he had no substantive discussion whatsoever with Mr J. about the matter or the charges Mr J. was facing until the two men entered the interview room. [^10]: The video recording of Mr M.’s interview was played during the course of Officer Matthews’ testimony before me, and also was marked as a formal numbered exhibit. While I also was provided with a suggested transcript of the interview, the parties agreed that was tendered not as a formal exhibit, but to assist the court in following along with the video recording, and as an aide memoire. The transcript accordingly was marked only as a lettered exhibit for identification. I nevertheless found that the document provided a generally accurate transcription of the audible comments recorded in the video of the interview, with the exceptions and corrections indicated in Schedule “A” to this endorsement. Certain remaining portions of the recording, marked as “indiscernible” by the transcriptionist, remained indiscernible to me as well. For ease of reference and greater clarity, when referring below to particular comments made by Officer Matthews or Mr M. during the course of the interview, I therefore intend to identify such references with more particularity by use of the relevant transcript page and line numbers. [^11]: The video recording of Mr J.’s interview was played during the course of Officer Howe’s testimony before me, and also was marked as a formal numbered exhibit. While I also was provided with a suggested transcript of the interview, the parties agreed that was tendered not as a formal exhibit, but to assist the court in following along with the video recording, and as an aide memoire. The transcript accordingly was marked only as a lettered exhibit for identification. I nevertheless found that the document provided a generally accurate transcription of the audible comments recorded in the video of the interview, with the exceptions and corrections indicated in Schedule “B” to this endorsement. Certain remaining portions of the recording, marked as “indiscernible” by the transcriptionist, remained indiscernible to me as well. For ease of reference and greater clarity, when referring below to particular comments made by Officer Howe or Mr J. during the course of the interview, I therefore intend to identify such references with more particularity by use of the relevant transcript page and line numbers. [^12]: See the transcript of the police interview of Mr M., at pp.3-4. [^13]: See the transcript of Mr M.’s police interview at p.4, lines 11-16. [^14]: See, for example, R. v. Oickle, supra, at paragraph 49. [^15]: See R. v. Oickle, supra, at page 57, which quoted, with approval, the following remarks from R. v. Rennie (1981), 74 Cr.App.R. 207 (C.A.), at p.212: “Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority.” [Emphasis added.] In this case, Mr M. admitted, in cross-examination, that he decided to speak because he felt he then would have a chance of being released.

I would only add that, to the extent Mr M. felt that he was threatened by the possibility of “someone being violent” with him, being presumed guilty, and/or being immediately transferred to prison or the local detention facility if he failed to speak with Officer Matthews, such fears also were entirely “self-generated”. Absolutely nothing in the evidence before me suggests that the police did anything whatsoever to suggest the existence of any such threats. To the contrary, the conduct of the police, repeated express statements of Mr M.’ rights, and the demonstrated civility of the police all suggested exactly the opposite. In my view, threatened consequences of failure to speak with the police existed, if at all, only in the imagination of Mr M. In cross-examination, Mr M. actually agreed that the feeling of threats and pressure to speak came from “inside his own head”, as he was a “polite person and wanted to respect people”. [^16]: For example, see R. v. Oickle, supra, at paragraph 57. [^17]: This is the articulation offered by McIntyre J.A. (as he then was) in R. v. Jackson (1977), 1977 CanLII 287 (BC CA), 34 C.C.C. (2d) 35 (B.C.C.A.), adopted by the Supreme Court of Canada in R. v. Oickle, supra, at paragraph 51, of the type of promised benefit needed to vitiate the voluntariness of a confession. [^18]: R. v. Oickle, supra, at paragraph 60. [^19]: R. v. Oickle, supra, at paragraph 61. [^20]: See the transcript of Mr M.’s police interview, at p.4, lines 17-19. I note this echoes the testimony of Sergeant Harding, who testified that Mr M. expressed no concerns about any unfair treatment. [^21]: See the transcript of Mr M.’s police interview at p.5, lines 30-32; p.9, lines 28-32; and p.10, lines 1-3. [^22]: See R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 18 O.R. (2d) 714 (C.A.) at page 721, quoted with approval in R. v. Oickle, supra, at paragraph 33. [^23]: See R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paragraph 8. [^24]: See R. v. Singh, supra, at paragraph 47. [^25]: Compare the candidly admitted stratagem of the interviewer in R. v. Singh, supra; a stratagem which, in the opinion of the court, risked undermining the accused person’s right to choose between silence and speaking with the authorities. [^26]: See the transcript of Mr M.’s interview, at p.9, lines 28-32, and p.10, lines 1-8. [^27]: See R. v. Singh, supra, at paragraph 53. [^28]: Compare and contrast, for example, the case of R. v. Hankey, [2008] O.J. No. 5266 (S.C.J.). In that case, the police interviewer persisted with questioning over the course of three hours, and expressly indicated that the interview was going to continue, despite more than 60 statements by the accused variously indicating that he did not want to talk, that he wanted to speak with his lawyer, and that he wished to return to his cell. The trial judge in that case nevertheless felt that such an interview process alone did not render the statements by the accused less than voluntary. It was the combination of that process, combined with statements undermining the accused’s faith in the legal advice he received, (not present in the case before me), that adversely affected the voluntary nature of the statements provided by the accused. [^29]: See the transcript of Mr M.’s interview, at p.4, lines17-19. [^30]: See the transcript of Mr M.’s interview, at p.22, lines 10-22. [^31]: See the transcript of Mr M.’s interview, at p.58, lines 19-21. [^32]: See the transcript of Mr M.’s interview, at p.55, lines 26-28. [^33]: See the transcript of Mr M.’s interview, at p.70, lines11-21. [^34]: See the transcript of Mr M.’s interview, at p.70, line 22. [^35]: See R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at p.936, and R. v. Oickle, supra, at paragraph 63. [^36]: Sergeant Harding testified that Mr M. noted that he had certain health conditions, in respect of which Mr M. had brought medications with him, but there also apparently were no health concerns expressed or raised in that regard. [^37]: This essentially is the standard form primary caution described by our Court of Appeal in R. v. E.B., 2011 ONCA 194, [2011] O.J. No. 1042 (C.A.), at paragraph 91. [^38]: See the transcript of Mr M.’s police interview, at pp.1-2. [^39]: See, for example, R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p.184; and R. v. Singh, supra, at paragraph 33. [^40]: See the transcript of Mr M.’s police interview, at pp.2-3. Although initial responses of Mr M. in that regard took the form of “Hm-hmm”, which he later confirmed with a verbalized “Yes”, it was clear to me from watching the recording of the interview that Mr M. was indicating that he understood the primary caution. [^41]: See R. v. E.B., supra, at paragraph 88: “Even where a person is a suspect, the absence of the standard caution is only one factor to be considered in the voluntary analysis – just as the presence of such a caution does not automatically lead to the conclusion that a statement was voluntary.” [^42]: Indeed, as noted by Justice McIntyre in R. v. Clarkson, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, at p.399, the familiar and customary warning, derived from the English Judges’ Rules, “was designed to ensure knowledge of the consequences of the statement, that is, its possible use in proceedings against the accused”. [^43]: I already have made reference to portions of the relevant comments made in that regard, in dealing with consideration of threats and promises. However, the relevant exchange can be found in its entirety at pp.3-4 of the transcript of Mr M.’s interview. It is worth replicating here in its entirety for emphasis and ease of reference, starting at p.9, line 12, and continuing to p.10, line 16:

Q. … You have been down here at the police station and you – you probably had a little bit of conversation with other police officers and cadets and that type of thing. You might have had some small bit of conversation, although do you – another caution, okay? “If you have spoken to any other police officer, or if anyone else in a position of authority has spoken to you in connection with this matter, I want it clearly understood that I do not want it to influence you in making a statement” It’s kind of a long run-on sentence.

A. Hm-hmm.

Q. Do you get – do you get what it means?

A. Sort of, no, not really.

Q. Sort of no, not really? Okay, so, if you – so basically…

A. It’s like a double-negative…

Q. No, well it isn’t, but… It’s not a double-negative. But if you’ve spoken to any other police officer or anyone else in a position of authority has spoken to you about this, sexual interference, sexual assault allegation…

A. Okay.

Q. …I don’t want your conversation with those other people to influence you to say anything now.

A. Not that…

Q. So if anyone has said anything to you…

A. All right, yeah, I get it – Yeah, I get it now.

Q. … Like, “Hey, you better – when that guy in the suit comes down and, you got to talk to him or – or else”…

A. Mm-hmm.

Q. …or “If you talk to him, we’re going to make things better for you”. Have there been any promises made to you, any inducements made to you about anything, or threats made to you?

A. Mm-hmm – No.

Q. Anything like that?

A. No. [^44]: Again, in addition to the answers given by Mr M. to Constable Aristone after initial delivery of the primary caution, see the transcript of Mr M.’s police interview, at p.2, lines 27-32; and page 4, lines 1-6. [^45]: See, again, the transcript of Mr M.’s police interview, at p.9, lines31-32, and p.10, lines 1-3. [^46]: Again, in my view, there are many such instances in that regard during the course of the interview. To cite some non-exhaustive examples:

• As for Mr M. repeatedly disparaging the complainant, and indicating in numerous ways that the complainant tells lies and should not be trusted:

  • At p.7, line 24: “He just lied too many times…”
  • At p.8, lines 23-24: “I don’t know what to believe, right?”
  • At p. 9, line 7: “I don’t know who he was.”
  • At p.10, lines 14-18: “He would just say one thing one minute and another, another minute.. Like say one thing to his grandma and turn around and tell me something totally different”
  • At p.11, lines 10-23: “He did not go to school all the time”, “he dropped out of school”, “I caught him drinking and meth and whatever”, “he would get kicked out every time”, “two weeks in … and he’s back to the same way that he was”.
  • At p.11, lines 23-24: “I just want rid of him … cause I don’t know how he was”
  • At p.13, lines 25-29: “I thought he was a nice kid. … It was just a façade.”
  • At p.14, lines 4-5: “He doesn’t get things. He doesn’t know how to not hurt people.”
  • At p.14, lines 18-19: “He said all this crap about his grandma … and would then turn around and kiss her ass”
  • At p.15, lines 19-23: “I was like, ‘Oh God, the same game that you’re playing’, so I couldn’t – I just could not – could not take him anymore.”
  • At p.17, lines 8-9: “He’s going back in jail. And he keeps going in and out, again more charges and more charges”.
  • At p.18, lines 19-20: “He just like replaces people with other people”.
  • At p.18, line 31 to p.19, line 2: “He went there, then made up stories that he got beat up, so he would punch himself or do whatever he had to do in order to fake injuries…”
  • At p.21, lines 9-12: “The moment that you didn’t give him that attention, however, then he went and got it somewhere else and caused trouble”.
  • At p.24, lines 7-24: “His girlfriend that he was with the last time, like I mean, she was devastated and she got her children taken away because of J.… She got her children removed because of, you know, doing meth parties and stuff with children in the house… and then left her like, you know, a year later or whatever”
  • At p.24, lines 29-31: “He was really into these threesomes during that and so they were all sleeping around…”
  • At p.27, line 29 to p.28, line 22: “He stayed at his grandma’s for maybe a month until he flipped out on her and she kicked him out… He lived with his father, same thing I guess… His stepmother … said that she came home when … she had a younger boy too and came home to J. having sex with like someone on the couch, with a kid upstairs, so she kicked him out. … He’s – he’s just not right to be around the young children.”
  • At p.29, lines 26-31: “He would play both of us… My J. … He saw through him.”
  • At p.31, lines 22-23: “He was really immature, like he just wasn’t responsible enough of a person”
  • At p.32, lines 10-16: “He would, you know, go broke within like two weeks. … Drugs and cigarettes”
  • At p.33, line 27 to p.34, line 1: “I heard that they were related to the Donnellys… The famous Black Donnellys you know.”
  • At p.36, line 31: “He might have stolen booze”
  • At p.37, lines 15-21: “He would smoke marijuana. … He just stole it. … He would wait until we’d go out and then – then steal it.”
  • At p.39, line 15 to p.40, line 2: “He made up this, you know, beating up story. … He tried to hit his face… cause I know it wasn’t somebody had hit him. .. I knew it was bullshit.”
  • At p.53, lines 3-4: “He would take just pretty much anything anybody ever gave him.”
  • At p.53, lines 18-23: “So usually that’s what he would do, all the way crying and telling me all these, you know, fake stories about how his father raped him”.

• As for Mr M. emphasizing his own noble motives and minimizing his own potential misconduct:

  • At p.10, lines 25-26: “The only thing I was there to do is – is to help this kid have a better life”.
  • At p.11, line 27 to p.12, line 1: “He had his own room and he could …come and go”, “he could put a lock on his room”, “he could do anything”, “He got allowance if he did dishes”, and “I treated him just like a foster parent would”.
  • At p.13, lines 13-17: ”It was non-stop gangs. I had to deal with gang members, his cousins…with knives at night, you know. Tried to get him out of that.”
  • At p.14, lines 30-31, (speaking of the complainant and his brother): “So they were both just like really bad kids and I tried and tried and tried”.
  • At p.17, lines 14-23: “I am totally the most non-sexual person. I’m more the intellect artist. I’m the talker. I like philosophy and talking and music. … I’m not the sexual one. He is very sexual and sexually weird.”
  • At p.17, lines 31-32: “I just wanted to keep him from hurting himself and quit sleeping around with everybody.”
  • At p.18, lines 713: “I didn’t get across to him obviously … that, you know, what you’re doing isn’t good for you, nor the thousands of people that you’re screwing over in the meantime”.
  • At p.19, lines 27-28: “It was like, you know, I – I wanted to help him…”
  • At p.20, lines 14-15: “I just wanted him to have a partner his own age.”
  • At p.21, lines 23-24: “I defended J..”
  • At p.22, line 32 to p.23, line 20: “I just went up and gave him a ‘whap’, you know, not a hard thing… They thought it was abuse and I was like I didn’t know, but I didn’t even hurt him. … It was just a… how can you do that and, you know, and why do you continuously keep doing this and hurtling people and going out and doing this?”
  • At p.23, lines 22-23: “I just finally just gave up. I – I gave up quite a few times.”
  • At p.28, lines 22-25: “He lived with two internet porn people for a while and I figured that one out and tried to get him away from that.”
  • At p.35, lines 2-13: “I was totally not aggressive to him. ... I could not be with anybody – it’s just not my – not my thing. I never hit him or anything, right? That one time… Well, other than that little smack – I mean he pushed me down and hit me many a times, but I – I just never would go back. I – I’m not that type of person.”
  • At p.37, lines 1-2: “I didn’t really drink, you know, alcohol – alcohol, just beer anyway”
  • At p.40, lines 8-19: “And then I just went, ‘Oh, he’s going to try to stay here’, and I kept, ‘You have to go back, cause now they’re going to put in a warrant. …. So I dropped him back off, I took him back to the place”.
  • At p.39, lines 3-14: “And so I said … Just stick with something for three months and prove to me that, you know, you – you are – are willing to do something in order to help yourself – take some responsibility”.
  • At p.43, lines 19-32: “He was like that a lot, like I mean rough sex, and I just – I – I kind of wasn’t into that. … I tried. I tried, you know, and it’s not – not my thing. ... I just wasn’t into it. .. I just loved him for who he was. Didn’t care about the sex part.”
  • At p.50, lines 4 to p.51, line 7: “It doesn’t even make sense what he’s saying. … He wants it, like, rough sometimes, and he wants to do things… He plays at those games. He wants it rough. … I don’t know how to make it rough, really. … I can’t be aggressive like that, and I can’t force myself onto somebody. It just doesn’t make any sense. I wouldn’t do that. It’s just not… it doesn’t seem proper. I treated him with the utmost, you know, like pretty much like kid gloves all the time. … I didn’t really all the time want to have sex with him. It was like… ‘The sex part isn’t what I want. I’d rather have you as a friend and just treat people better, you know? Learn how to be a proper human being.’ ”
  • At p. 51, lines16 to p.52, line 12, when asked again about the complainant describing Mr M. “hitting him in the head”, Mr M. responded: “It’s a cuff. … I didn’t actually strike him, strike him. It was just ‘pscht’ a ‘patcha’ or whatever you – I don’t know what the word is. … Like my mom used to do, you know? … It’s that ear boxing thing, right?”
  • At p.64, lines 7-10: “Go to school. That was the stipulation for him to be in my house at all times. … He must go to school. Be smart. Learn.”
  • At p.64, line 30, when told the complainant regarded the home of Mr M. as a safe place: “Well, that’s what I was there for.”
  • At p.67, lines 13-17: “I thought it was like a – a mutual thing. I never pushed myself on him. That was – unless that, that’s what he indicated that he wanted. … I would never do that.”

• As for Mr M. asserting that he actually was the one victimized by the complainant:

  • At p.11, line 26: “I don’t know who he’s bringing to my house”.
  • At p.12, line 26 to p.13, lin3 2: “He started bossing us around… not really helping out… stealing”; “he kept stealing from us all the time”.
  • At p.16, lines 18-28: “He was always forcing his way back into the situation, playing J. and I against each other all the time… Try to get us to fight… Try to conquer and divide us.”
  • At p.18, lines 26-27: “I felt set up right from the beginning. I felt lured in. Like right from the beginning.”
  • At p.25, lines 16 to p.26, line 16: “He was stalking me at work … and stalking me all the time downtown. I work downtown. … I was working downtown and he was stalking me and I worked in [a specified location]. .. He was always sitting [in a specified location] staring at me.”
  • At p.27, lines 2-14: “I said ‘You’re an adult now, and I expect that you are not – you are not going to come onto me. … And then eventually it ended up happening again right when I was vulnerable, you know… about a year afterwards. It was like, ah, get me drunk and two beers and then it was like, oh, all right. And I’m an innocent person. I don’t do weird stuff.”
  • At p.32, line 23 to p.33, line 9: “He stole like all of our… Percocets. … J. took them, started stealing them… You know, got a hold of them, so you know, all his friends were getting high on my dime.”
  • At p.35, lines 9-10: “He pushed me down and hit me many a time”
  • At p.42, lines 5-12, when Mr M. was asked whether he would characterize his sexual relationship with the complainant as being purely consensual: “Sometimes not on my part, for him to me. … There was many a times it’s like, you know, ‘Just can you back off’, and – you know, he was very – I thought he was really aggressive.”
  • At p.54, line 23 to p.55, line 15: “He was always like coming on to me or something, you know what I mean? … And I – I never knew what to do. Half the time it was just ‘Let’s go’, you know, ‘No, we’re talking right now, we don’t need…’ – because every time we’d start talking about something, that’s when he wants the sex … And then pretty much goes for it. … You don’t have a choice. … No matter where we were, it didn’t matter. … And I – I’m not – I don’t want – it’s not that, I don’t want that, I want to talk.”
  • At p.57, lines 9-12: “Like he’s – he’s just screwing around with you … Everybody kept telling me that.”
  • At p.59, lines 8-24: “It wasn’t me. It’s just not, you know? But everything that he would want me to do to him is the stuff that I was uncomfortable with. … You know, it’s like he wanted to just screw me all the time, but I couldn’t – I couldn’t do that. I couldn’t – I have a small anus. You can – I think he tried once and, you know, but he just kept trying, always trying … So he was the one that was rough playing, I wasn’t.
  • At p.60, line 21 to p.61, line 30: “I know that he was heavily into, you know, S&M type stuff, right? … That was one of his fantasies… Getting raped and stuff. … and hitting and punching and holding hair and, you know… I don’t feel comfortable hitting somebody… Like most of the time, it was him crawling into my bed. … So I ended up kicking him out, out of the bed. .. I just think it’s funny how he has made it sound like I am, when it’s mostly him that was like that with me. And he was like that with J. too sometimes. .. He’s very forceful.”
  • At p.67, lines 5-7: “He grabbed me and I didn’t want it on most of the occasions, that, you know, he was forceful.” [^47]: I note that the assertions of Mr M. in that regard frankly seemed entirely at odds with his indication during the interview that he was satisfied with the advice he had received, (see the transcript of Mr M.’ interview at p.2, line 9), and with his other assertions during voir dire testimony that Officer Matthews’ continued questioning made Mr M. feel that he “wasn’t able to take the advice duty counsel gave me”. Mr M. either understood the advice he received from duty counsel or he did not. I believe that he did. However, his attempt to “have it both ways” during the course of his testimony provided further reason for me to doubt his credibility. [^48]: See R. v. Whittle, supra, at p.936, and R. v. Oickle, supra, at paragraph 63. [^49]: Again, see R. v. Whittle, supra, at p. 939. [^50]: In my view, that in itself distinguishes this case from situations, like the one found to exist in R. v. G.F., 2016 ONSC 2510, at paragraph 8, wherein a police officer was found to have lied deliberately to the accused; e.g., about the complainant’s allegations. [^51]: As noted by Crown counsel during the course of his submissions, Officer Matthews’ indications that 14 generally was the legal age of consent, at the time when the complainant was 14, also was not inaccurate. The officer’s indications to that effect accordingly were neither a lie nor a misrepresentation. It nevertheless arguably may not have gone far enough, initially, insofar as Officer Matthews did not specifically address, until the later stages of the interview, the power imbalance component which might give rise to a situation of sexual exploitation. Even then, however, any such inadequacy related to an attempted statement of law, rather than any misrepresentation of facts or evidence. [^52]: See R. v. Oickle, supra, at paragraph 65. [^53]: Ibid., at paragraph 66. [^54]: See Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p.697; and R. v. Oickle, supra, at paragraph 66. [^55]: See R. v. Oickle, supra, at paragraph 67. [^56]: See Rothman v. The Queen, supra, at p.697. [^57]: See R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp.286-287. [^58]: See R. v. Rothman, supra, at p.697; and R. v. Oickle, supra, at paragraph 66. [^59]: See Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p.697; and R. v. Oickle, supra, at paragraph 66. See also R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp. 286-287. [^60]: See R. v. Oickle, supra, at paragraph 42. [^61]: See the transcript of Mr J.’s police interview, at pp.1-2. [^62]: See the transcript of Mr J.’s police interview, at p.2, lines 9-21. [^63]: Again, see R. v. Oickle, supra, at paragraph 57. [^64]: Again, see R. v. Jackson, supra, adopted by the Supreme Court of Canada in R. v. Oickle, supra, at paragraph 51. [^65]: R. v. Oickle, supra, at paragraph 60. [^66]: R. v. Oickle, supra, at paragraph 61. [^67]: See the transcript of Mr J.’s police interview at p.20, lines 7-11. [^68]: See the transcript of Mr J.’s police interview, at p.17, lines 30-32. [^69]: Again, see R. v. Whittle, supra, at p.936, and R. v. Oickle, supra, at paragraph 63. [^70]: See the transcript of Mr J.’s police interview, at p. 1, lines 9-14. [^71]: See the transcript of Mr J.’s police interview, at p. 1, lines 21-22. [^72]: At one point, Mr J. does indicate, (at p.18, lines 1-2 of the transcript), that he is “just very confused that all of this is happening”. In my view, however, that is not the same thing as an indication that he does not understand any aspects of his conversation with Officer Howe. [^73]: See the transcript of Mr J.’s police interview, at pp.1-2. [^74]: See the authorities noted above, in that regard, in relation to Mr M. on this point. [^75]: See the transcript of Mr J.’s police interview, at p.2, lines 21-24. [^76]: Again, see Rothman v. The Queen, supra, at p.697; and R. v. Oickle, supra, at paragraph 66. See also R. v. Collins, supra, at pp. 286-287. [^77]: Again, see R. v. Oickle, supra, at paragraph 42.