Court File and Parties

COURT FILE NO.: CR-17-737 DATE: 2019 01 08 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – J.D. and D.B.

Counsel: Jelena Vlacic, for the Crown Harry Doan, for J.D. and Thomas Wiley for D.B.

HEARD: October 23, 24 and 25, 2018, in Brampton

REASONS ON VOLUNTARINESS OF STATEMENTS

Shaw J.

OVERVIEW

[1] J.D. and D.B. are charged with a number of offences including procure, recruits, holds, conceals or harbours for the purpose of facilitating an offence under s 286.1(1) of the Criminal Code or exercise control, direction or influence over the movements of two complainants contrary to s. 286.3(1); receive a financial or other material benefit contrary to s. 286.2(1); and knowingly advertising an offer to provide sexual services for consideration contrary to s. 286.4. These offences relate to two complaints, A.O. and D. H. The indictment period spans June 28, 2016, to September 26, 2016.

[2] In connection with these charges, Mr. J.D. gave two statements to the Peel Regional Police (“PRP”). The first is dated October 3, 2016, and the second is dated February 8, 2017. Mr. J.D. concedes the voluntariness of the February 8, 2017, statement.

[3] Ms. D.B. gave statements to PRP on October 3, 2016, and March 21, 2017. She does not contest the voluntariness of the March 21, 2017 statement.

[4] The Crown has applied to admit as voluntary the statements given by both respondents on October 3, 2016. The statements are exculpatory and will only be used at trial for the purpose of cross-examination should either respondent give evidence. A voir dire was held where the Crown’s onus was to establish, beyond a reasonable doubt, the voluntariness of the statements given to police investigators.

[5] Both respondents were arrested on October 3, 2016, but at different locations. For the purposes of determining the voluntaries of these statements, I will review the evidence surrounding their arrests, conducted by officers from the Toronto Police Services (”TPS”), and their subsequent transport to 12 Division of PRP where the statements were taken. In total, 12 officers were called to give evidence on this voir dire. Mr. J.D. gave evidence. Ms. D.B. did not give any evidence. The videotaped statements were also played in court.

[6] Ms. D.B. asserts that her statement was not given voluntarily as she was not provided with either a primary or secondary caution by any police officer before giving her statement. The Crown concedes she was not given a primary caution but submits that the officer who conducted her interview did provide her with a “soft” appropriate secondary caution. There is no dispute that she was given her rights to counsel and spoke with her lawyer before she gave her statement.

[7] Mr. J.D. asserts that given the nature and circumstances of his arrest, he was fearful that if he did not give a statement, he would be physically assaulted by PRP officers. His position is that voluntariness should be assessed considering all of the circumstances leading up to the statement. Given the forcefulness of his arrest, he asserts that he was induced by fear to give the statement and that it is therefore involuntary.

[8] Mr. J.D.’s evidence on the voir dire was that the first arresting officer did not caution him or facilitate his right to counsel and the interviewing officer did not caution him, but only facilitated his right to counsel. Mr. J.D. did exercise his right to counsel before he gave his statement. The only issue was whether the Crown had proven that the statement was voluntary.

[9] The Crown’s position was the Mr. J.D. was cautioned twice before he gave his statement, that there were no inducements made to him, no threats or promises or oppressive circumstances and that his statement was made voluntarily.

FACTUAL BACKGROUND

Officers’ Evidence

a) Events Prior to the Arrest of the Respondents

[10] On October 23, 2016, Detective Heitzner from TPS was contacted by Constable McBride from the PRP for assistance carrying out an arrest in Toronto. Detective Heitzner was the officer in charge of coordinating the arrest. Constable McBride told Detective Heitzner that Mr. J.D. and Ms. D.B. were to be arrested in Toronto on charges of human trafficking. A briefing was held with other officers from the TPS, during which some concerns were addressed including information that there were two young females under the age of 16 at the suspects’ home. The TPS also had information about Mr. J.D.’s criminal antecedents; there was a concern with respect to firearms. This information was taken into account in determining how Mr. J.D. was to be arrested.

[11] Following the briefing, five plain-clothes officers drove in separate unmarked cars to the respondents’ home. They arrived at 7:15 p.m. and set up surveillance.

[12] Constable Rabitto was the officer who had a direct view of the residence. At 9:13 p.m., Mr. J.D. was observed leaving the property in a vehicle and a decision was made to follow him so that he could be arrested away from the residence.

Mr. J.D.’s Arrest

[13] Given Mr. J.D.’s position regarding the fear he had following his arrest and the impact that fear had on the involuntariness of his statement, I will review in some detail the evidence of the officers involved as well as Mr. J.D.’s evidence regarding the arrest.

[14] Five TPS officers followed Mr. J.D. to a Walmart on Islington Avenue. He parked his vehicle in a parking spot close to the front of the entrance. Detective Heitzner pulled his vehicle up blocking the front of Mr. J.D.’s car and at that point ordered his officers to arrest Mr. J.D.. Detective Heitzner’s evidence was that the plan was to use the element of surprise to arrest Mr. J.D. given the concern about firearms. Detective Heitzner’s evidence was that based on the information they had regarding Mr. J.D., the TPS were not going to walk up to him, introduce themselves and arrest him.

[15] Mr. J.D. exited his car and started to walk toward the entrance to Walmart. At that point, Detective Heitzner saw Constable Hoeller run up behind Mr. J.D. and take him to the ground. His evidence was that he heard the officers yelling “police, police”. He observed Mr. J.D. struggling at first once he was on the ground but then settling down. He testified that Mr. J.D.’s initial struggle was understandable as the officers were not in uniform and had purposely used the element of surprise to arrest him.

[16] Detective Heitzner saw Constable Hoeller on top of Mr. J.D. on the ground. Detective Heitzner did not see any officer use strikes, blows, batons or Tasers to arrest Mr. J.D.. He did not see Mr. J.D. hit his head when he went to the ground. On cross-examination, his evidence was that Mr. J.D. did go down to the ground hard. His evidence was that it took about 30 seconds to 1 minute to get Mr. J.D. under control and then up off the ground. He did not observe any marks or injuries on Mr. J.D.. He did not have any other contact with Mr. J.D..

[17] Constable Hoeller’s evidence was that at the briefing he had attended at around 6:30 p.m. earlier that day there was information provided about Mr. J.D.’s prior criminal record and the potential that he may have firearms on his person. On cross-examination he admitted that the officers were prepared for the possibility of firearms and violence at the arrest.

[18] Constable Hoeller’s evidence was that he when he arrived at the Walmart parking lot, as he was parked closest to Mr. J.D., he decided to execute the arrest before Mr. J.D. entered the store. According to Constable Hoeller, in most circumstances when arresting someone in this manner, he would run up behind the person and tackle him to the ground using a bear-hug type hold. As Mr. J.D. was much shorter than him, he decided that to avoid injuring Mr. J.D. he would raise both of his forearms at chest level and run and hit Mr. J.D.’s upper back from behind with his forearms to force him to the ground. His evidence was that if he tackled Mr. J.D. to the ground using a bear-hug type hold, he would end up on top of him driving Mr. J.D.’s head into the ground.

[19] Constable Hoeller’s evidence was that when he hit Mr. J.D. from behind he began to yell “police” repeatedly. Instead of falling straight down to the ground, Constable Hoeller observed Mr. J.D. do a somersault-type move and he landed on the pavement on his back. Constable Hoeller then jumped on top of Mr. J.D. with his full body weight. He was lying on top of Mr. J.D., face-to-face, yelling “police”. He described Mr. J.D. struggling and flailing his arms as he tried to get him under control.

[20] Constable Hoeller’s evidence was that he was not surprised by Mr. J.D.’s reaction and his initial struggles as Mr. J.D. would have been surprised and that was the intended manner of arrest. His evidence on cross-examination was that based on Mr. J.D.’s resistance, he likely had not initially recognized that Constable Hoeller was a police officer.

[21] Constable Hoeller’s evidence was that he was on top of Mr. J.D. for about ten seconds while Mr. J.D. struggled. Constable Hoeller was then able to turn him over onto his stomach. No other officer was right on top of Mr. J.D. but other officers were trying to control his arms. Constable Hoeller’s evidence was that Mr. J.D. settled and stopped struggling once he was turned onto his stomach with his arms secured behind him and handcuffed. Before he stopped struggling, Mr. J.D. scratched Constable Hoeller’s face. Constable Hoeller denied seeing Mr. J.D. hit his head on the ground. He denied that he hit or kicked Mr. J.D. or saw any officer do so.

[22] Constable Rabitto was also part of the arrest team. He left the residential address at 9:13 p.m. to follow Mr. J.D.’s vehicle to Walmart. He observed Mr. J.D. walking towards the front door. He saw Constable Hoeller approach him from behind and then he observed them both go to the ground. He was to the left of Constable Hoeller and about four to five steps behind him when he saw Mr. J.D. go to the ground.

[23] His evidence on cross-examination was that Mr. J.D. had turned around and was facing Constable Hoeller after Constable Hoeller yelled “police”. He described the fall to the ground as violent. He observed Mr. J.D. lying on his back on the ground struggling and Constable Hoeller on top of him. Constable Rabitto assisted Constable Hoeller by trying to grab one of Mr. J.D.’s arms to get him under control. He and Constable Hoeller were able to turn Mr. J.D. over onto his stomach. Once Mr. J.D. was on his stomach, Constable Rabitto put one of his knees on Mr. J.D.’s upper back and extended his other leg out to the side to control Mr. J.D.’s upper body. His evidence was that this maneuver was taught as part of use-of-force training. While Mr. J.D. was on his stomach and Constable Rabitto’s knee was on his back, Constable Hoeller remained on top of Mr. J.D. until he was handcuffed. Constable Rabitto testified that Mr. J.D. was handcuffed about 10 seconds after he went to the ground. Constable Rabitto did not use any other force such as strikes or blows to subdue Mr. J.D.. He did not see him hit his head. His evidence was that no excess force was needed to get Mr. J.D. under control. Based upon the nature of the arrest, however, some force was used.

[24] Constable Rabitto’s evidence was that he also yelled out repeatedly “we are police” and “calm down” while he helped to get Mr. J.D. under control. His evidence was that Mr. J.D. calmed down about 10 seconds after he landed on the pavement. Once handcuffed, Mr. J.D. was then lifted to a sitting position. Constable Rabitto then left the arrest to speak with Detective Heitzner to organize transport back to Peel Region. Constable Rabitto did not have any further contact with Mr. J.D..

[25] On cross-examination, Constable Rabitto agreed that the arrest had the potential to be a high risk arrest as they had information that Mr. J.D. was involved with firearms in the past. It was also his evidence that it appeared that Mr. J.D. fell to the ground as a result of a violent shove by Constable Hoeller.

b) Events in the Van and Transport to Peel

[26] After being handcuffed, police helped Mr. J.D. sit up and then walked him over to an unmarked police van and placed him in the back. Constable Hoeller’s evidence was that at 9:28 p.m. he read Mr. J.D. his right to counsel and primary caution from the pre-printed form kept on the front of his notebook.

[27] Detective Hoeller’s evidence was that he read Mr. J.D. the following rights to counsel:

I am arresting you for human trafficking. It is a Peel Regional Police case. I am from Toronto. 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 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 at 1-800-265-0451. This is a number that will put you in contact with legal aid duty counsel for free legal advice right now. Do you understand? Do you wish to call a lawyer now?

[28] Constable Hoeller testified that when Mr. J.D. was asked if he understood, he answered yes, but said he wanted to know what this was all about. Constable Hoeller told him he would have to ask Peel Police. When he asked him if he wanted to call a lawyer now, Mr. J.D. gave him the name Harry Doan. Mr. Doan is Mr. J.D.’s lawyer. Mr. J.D.’s responses were recorded in Constable Hoeller’s notebook.

[29] Constable Hoeller’s evidence was that he then read Mr. J.D. a primary caution as follows:

You are charged with human trafficking. I do not know the details of all the charges. You are not obliged to say anything unless you wish. Whatever you say may be given in evidence. Do you understand that? Do you wish to say anything in answer to the charge?

[30] In response to this, Mr. J.D. said he understood and that he was just coming to get things for his aunt’s truck as it did not have its “emissions yet”. Again, this response was recorded in Constable Hoeller’s notebook. Constable Hoeller’s evidence about providing Mr. J.D. his right to counsel and caution was not challenged on cross-examination.

[31] Constable Hoeller remained seated in the front passenger’s seat of the van with Mr. J.D. until 9:54 p.m. when he was then taken by Constable Kapoor, also with TPS, to be driven to Peel in a marked police vehicle.

[32] While in the van, Mr. J.D. told Constable Hoeller that he had a history of concussions and that he suffered from multiple sclerosis. Constable Hoeller asked if he wanted an ambulance and he said no. He made a note of this in his notebook. He recalled that Mr. J.D. told him that he worked at a grocery store and that he suffered a concussion when he slipped and fell.

[33] Constable Hoeller described Mr. J.D. as cooperative, calm and coherent. He did not show any signs of distress in the van, nor did he ask for medical attention. He did not speak about being in any pain. Constable Hoeller did not see him bleeding from any injury. His evidence was that Mr. J.D. responded to all questions and his responses were logical.

[34] Constable Kapoor transported Mr. J.D. to Peel. He attended at Walmart with Constable Malloney and Mr. J.D. and his property were turned over to him at 9:54 p.m. He was not aware of the charges. He had a notation in his notebook that Constable Hoeller had given Mr. J.D. his rights to counsel. Mr. J.D. was placed in the back of the vehicle and they left for Peel at 9:59 p.m. They arrived at 12 Division of PRP 11 minutes later at 10:10 p.m. The only question Mr. J.D. asked Constable Kapoor was whether he was from Peel or Toronto Police. Constable’s Kapoor’s evidence was Mr. J.D. did not show any signs of distress and he appeared casual and relaxed.

[35] When they arrived at 12 Division they had to wait for the sally port to be ready. Constable Kapoor said that Mr. J.D. said he felt nauseous so the back door of the cruiser was opened for him. Constable Kapoor did not see Mr. J.D. vomit. Mr. J.D. did not raise any other medical issues. Constable Kapoor did not see any bleeding from any injury. His evidence was that Mr. J.D. did not appear to be under the influence of drugs or alcohol. They entered the sally port at 10:36 p.m. At 10:40 p.m. Constable McGowan took custody of Mr. J.D..

c. The Statement

[36] Constable McGowan from PRP conducted the interview of Mr. J.D.. The interview was recorded and a copy of the video and written statement were marked as exhibits on this voir dire. The video commenced at 11:21 p.m. on October 3, 2016, and ended at 2:30 a.m. on October 4, 2016.

[37] Constable McGowan’s evidence was that sometime before 5:00 p.m. on October 3, 2016, he was briefed regarding an investigation commenced by Durham Police. Based on a statement obtained by PRP from a witness, three suspects had been identified who were to be arrested for human trafficking. Constable McGowan was not the officer in charge. He was told that the TPS would be making the arrest and he would be taking the statement.

[38] At 10:20 pm Constable McGowan was informed that Mr. J.D. had been arrested. Constable McGowan arrived 12 Division at 10:25 p.m. He went down to the sally port where he met Mr. J.D. and the two Toronto Police officers who had escorted him from Toronto. He took Mr. J.D.’s property, including some money, a wallet, a cell phone, and a lighter. He then took custody of Mr. J.D. and entered the lodging area of the police station. He observed that Mr. J.D. walked with a limp. He recalled seeing some scrapes on his knees when they got to the interview room as his pants were rolled up. He did not recall seeing any other injury. Mr. J.D. did not say he needed any medical attention.

[39] He described the lodging area as an open area with some benches. Constable McGowan’s evidence was that at 10:40 p.m., while seated on those benches, he read Mr. J.D. his right to counsel and a primary and secondary caution from a preprinted card. He informed him that he was under arrest for human trafficking, receiving material benefit and exercise control. Constable McGowan read the same rights to counsel and primary caution as Constable Hoeller had read. In his notes, Constable McGowan recorded that Mr. J.D.’s lawyer was Harry Doan. The secondary caution he read was:

If you have spoken to any police officer or to anyone with authority or if any such person spoke to you in connection with this case I want it clearly understood that I do not want it influence you in making any statement. Do you understand?

[40] Constable McGowan’s evidence was that Mr. J.D. told him that his lawyer’s phone number was in his cellphone so he gave him his cellphone to look up the phone number. Constable McGowan called the phone number at 10:55 p.m. and spoke to Mr. Doan and put him on hold. He then gave Mr. J.D. a private room to speak with him. Mr. J.D. was off the phone by 11:08 p.m.

[41] When that phone call was over, Mr. J.D. told Constable McGowan that he needed medication from his house and he gave him Ms. D.B.’s phone number. Constable McGowan told Mr. J.D. that he would arrange to get him his medication.

[42] According to Constable McGowan, Mr. J.D. did not complain of any other injury and did not say he could not speak with him if he did not have his medication. Constable McGowan said he had no concern with Mr. J.D.’s medical wellbeing and that he did not appear to be under the influence of alcohol or drugs.

[43] Constable McGowan’s evidence was that he did not tell Mr. J.D. that he had to provide a statement. He had no discussions with him about the charges until after the video commenced. According to Constable McGowan, there was approximately ten minutes where he was not in the presence of Mr. J.D.. During that time, he was under the care of cell officers who would have been unaware of the charges. They did not bring anything to Constable McGowan’s attention with respect to Mr. J.D..

[44] According to the transcript from the interview, Constable McGowan entered the room at 11:33 p.m. There was a discussion about getting Mr. J.D. his medication. At around 11:38 p.m., at page 8 of the transcript, Mr. J.D. said “my head’s just really clouded right now”. He told Constable McGowan that he had been diagnosed with multiple sclerosis (MS) 11 weeks earlier. He also told him about sustaining a concussion when he fell at work. At 11:55 p.m., at page 13 of the written transcript, McGowan says the following:

MCGOWAN: I am bringing you in here so we can talk about this. This is your opportunity to explain if you wanna explain anything. Um, I have read you your rights downstairs, you’ve spoken to Harry Doan. You’re all good with-, satisfied with that stuff. Um, your mom - , Harry was saying that –, you were saying that Harry’s gonna call your mom?

J.D. (nods head yes).

[45] Constable McGowan’s evidence was he took a relaxed approach when he interviewed Mr. J.D. as he seemed to have a good rapport with him. This was evident when watching the video. The tone was very conversational. Mr. J.D. appeared to be engaged. He did not appear to be confused or have trouble answering any questions. There was no evidence of any use of force, threats or inducements. There was no evidence of any oppressive conditions. At no point did Mr. J.D. say he did not want to answer a question or wanted the interview to end.

[46] On cross-examination Constable McGowan acknowledged that Mr. J.D. complained of being beaten-up during the arrest a few times. Just before 1:04 a.m., at page 66 of the transcript J.D. said the following:

JD: … Well, I didn’t get walked in here, I got beat the shit out of and dragged across a parking lot and told me I was resisting arrest. I was like, hold up, you just jumped me from behind. Like common, man, I got MS. I told the cop, I go, I got MS, bro. You’re (inaudible) me like that, my muscles move, like what am I supposed to tell you?

MCGOWAN: Mm-hmm.

JD: And then I got a nice shot to my face and then told to eat the concrete. Yeah, I was like, thanks bro. I got a concussion. He’s like, I don’t give a fuck about your concussion. I was like, alright. And look, ( indicates ), I’m patching myself up right now. I know my wife.

MCGOWAN: Okay, you do have some scrapes….

JD: I know my wife and my daughter walked in here.

MCGOWAN: Yeah I d-, I don’t know. I didn’t, um…

JD: Well, they’re not banged up right now, are they?

[47] At 1:08 a.m. at page 70, there was the following exchange:

JD: My head’s spinning, like I see two of you right now

JD: … my eyes (inaudible) right now. Like my back of my head’s pounding me-, or from every-, from the concussion…

MCGOWAN: Not a good feeling.

JD: … and then I got my full face right here ( indicates right cheek ), like feels like I, I got hit by a Mac truck. Like seriously, how they took me down was wild. I was like, whoa…

MCGOWAN: That’s my word, that’s what I say, wild.

JD: Yeah, it was like, whoa. I was like whoa, what’s going on? And then it took them about like-, about 15 minutes after the couple good shots that they gave me and said, uh, yeah, we’re police. Oh, I was like, that’s great to know, bro. I was like-, and then they were like-, and there was a whole bunch of them. I was like, wow. And then they flopped me into a van. I was like, okay, well, we’re gonna go raid your house. I was like, well, there’s my younger daughter in there with my wife and my other daughter, and my sister’s just moved in downstairs, so.

[48] In the video Mr. J.D.’s pants were rolled up over his knees. Constable McGowan said he did not see any blood on the pants. Beginning at 12:55 a.m., Mr. J.D. was observed putting water on tissues and dabbing his knees. Constable McGowan’s evidence was that Mr. J.D.’s knees appeared to be scraped but they were not bleeding. Mr. J.D. was also observed rubbing his hands back and forth over his head a few times. Constable McGowan did not recall Mr. J.D. rubbing the back of his neck. He was not concerned that Mr. J.D.’s head was bothering him to the extent that he was not participating in the interview.

[49] Constable McGowan said he was not given any information about what happened during the arrest. He confirmed on cross-examination that Mr. J.D. was given a caution that he read from his notebook and he told him that he was being charged with human trafficking, receiving benefits and exercising control. This evidence was not challenged on cross-examination. He described Mr. J.D. as being aware and answering all questions. According to Constable McGowan, if he thought Mr. J.D. needed medical attention he would have requested it for him. When he told him that his head was pounding he did not think that he needed medical attention.

e) Mr. J.D.’s Evidence of the Arrest and Statement

[50] There is some consistency between Mr. J.D.’s evidence and the officers’ evidence with respect to the circumstances of the arrest. There are, however, key differences upon which Mr. J.D. relies to argue that the circumstances of the arrest were such that when he arrived at 12 Division he continued to be fearful of being “beaten up again” unless he gave a statement. It is the totality of the circumstances, including the circumstances of his arrest that, Mr. J.D. argues, must be considered in order to assess the voluntariness of his statement. He asserts that he felt compelled to give the statement and that he did not know he had a choice not to speak to Constable McGowan.

[51] According to Mr. J.D., on October 3, 2016, he left his home to drive to Walmart to pick up light bulbs. He pulled into the parking lot, exited his car and when he was about 20 feet from the store, he felt like he had been hit by a car and fell to the ground and hit his head. He then saw two people jump on him and he started fighting back. He denies anyone identified themselves as police initially. He started swinging and he connected with somebody and that is when they started saying they were the police and to stop fighting. His evidence was that one officer stepped on the back of his head and he hit his head on the concrete. He was on the ground for 6 to 7 minutes. He stopped struggling when he was told they were police. He said at that point he was lying on his back with his arms out-stretched. One of the officers was lying on top of him. He said he was flipped over and handcuffed, lifted up and dragged to a van. Mr. J.D. gave no evidence of any weapon being used such as a baton or Taser or any other use of force such as any strikes or blows. There was no evidence that any injury he sustained to his knees or head was caused other than by the way he fell to the ground.

[52] In the van he said the police officer in the front seat was yelling at him saying he was a “piece of shit” and told him he was under arrest and that he would find out about it at Peel. Mr. J.D. testified that while in the van, he told the officer that his legs hurt and the officer, whom he had hit, pointed to his face and said “see what you did to my face”. Mr. J.D.’s evidence was that he also said that his head was pounding and he was told to stop being a “bitch”.

[53] The police officer in the van said Peel was coming to get him and when he asked the officer where he was from, he said it was none of his business. Mr. J.D. denied that Constable Hoeller read him his rights to counsel or cautioned him, although he could not explain how Constable Hoeller had the name of his lawyer in his notes.

[54] He described lying in the back seat of the police cruiser when he was transported to Peel and saying he was going to “puke”. The officers told him not to do that in the car. Before they went down the ramp into the police station, an officer opened the door and he was sick. His evidence was when he met Constable McGowan he told him he was jumped by a whole bunch of cops.

[55] Mr. J.D.’s evidence was that before he was taken to the interview room, he was told he was going to be taken upstairs to make a statement. He testified that he was not cautioned. His evidence was that as he had just been beaten up by six police officers, he believed that anything could happen. His evidence was that he was fearful given the nature of his arrest and he felt like he had no choice but to give a statement.

[56] Photographs of Mr. J.D.’s face, legs and pants taken on October 7, 2016, by his mother were filed as exhibits. Those photographs show that his two knees were bandaged. He said the photograph of his face shows some redness under his right eye which he said was a bruise from the arrest.

D.B.’s Arrest and Statement

[57] The issue regarding Ms. D.B.’s statement is whether or not the statement was voluntary in the absence of a primary caution. I will summarize the evidence of her arrest and, in particular, her interaction with the various officers who dealt with Ms. D.B. from the point of her arrest until the time she gave her statement.

[58] Constable Hoeller was present when Ms. D.B. was arrested at 10:17 p.m. at her home address on October 3, 2016. He had travelled back to her home after Mr. J.D. had been arrested at the Walmart parking lot. When he arrived at the home, he observed Constable Rabitto arresting Ms. D.B. at the end of her driveway. He recalled that there were a lot of people in the driveway and they had to wait for uniformed officers to arrive to transport her to Peel. He did not read Ms. D.B. her right to counsel. He did not have any discussions with her about the charges. He may have only told her that she had to wait for the police to arrive. He said there was no struggle. He did not hear her make any complaint about being in distress or being injured.

[59] Constable Rabitto’s evidence was that he attended at Ms. D.B.’s home to arrest her, following the arrest of Mr. J.D. at Walmart. His evidence was that when he arrived at the home, he observed Ms. D.B. standing at the end of her driveway talking to another individual. He parked his vehicle and approached her. He was wearing a vest which had the word “police” written on it. His jacket was unzipped. He approached her and said she was under arrest for human trafficking and would be transported to Peel as it was a Peel investigation. His evidence was that he advised her of her rights to counsel from a laminated card that he kept in his vest pocket. She said she understood. When he asked her if she wished to call a lawyer she replied that she had one that she wanted to call. He did not read her a caution when he arrested her or at any time during the one hour he spent with her waiting for PRP officers to arrive at the home to transport her to Peel.

[60] He described Ms. D.B. as appearing calm but she had some concerns when he told her that her husband was in custody. His evidence was that he did not engage in any other discussion regarding the charges as he had no knowledge of the investigation other than she was being charged with human trafficking. As she appeared to be wearing pajamas he suggested she get some clothes and she also mentioned that she needed to get her husband’s medication as he had a concussion and he used marijuana to treat it. He told her she could not bring marijuana with her.

[61] At 11:10 p.m., almost one hour after her arrest, police officers arrived from PRP to transport Ms. D.B. to Peel. Other than when she went into the home to use the washroom, Constable Rabitto remained with Ms. D.B. until she left with the transporting officers.

[62] Constable Brown assisted with the transport of Ms. D.B.. He received custody of her at 11:10 p.m. and placed her in the rear of a police cruiser. He did not have any discussions with her. It was another officer who drove her to Peel. His only interaction with Ms. D.B. was walking her across the street to place her in the police cruiser. He did not provide her with a caution.

[63] Constable Laurin’s evidence was that he arrived at the address at 11:14 p.m. He was told that Ms. D.B. had been placed under arrest by Constable Rabitto at 10:17 p.m. and that she was going to be transported to 12 Division of PRP. He was informed that she was given her rights to counsel and that when she got to 12 Division she wanted to talk to her lawyer. He was told that she had been arrested by TPS for trafficking but he had no knowledge of the allegations. She was placed in the rear of his car. His evidence was that they left the home at 11:18 p.m. and arrived at 12 Division at 11:32 p.m. He did not have any discussions with her in the car. He did not provide her with a caution. She was taken to the cell area at 12 Division and the cell officer took custody of her.

[64] Constable Hutchinson works with PRP. She attended a briefing at 8:00 p.m. and was told that Mr. J.D., Ms. D.B. and another individual were going to be arrested. Constable Hutchinson was involved with Ms. D.B. only for the purpose of conducting a pat-down search of her when she arrived at 12 Division. She did not have any discussions with Ms. D.B. about the charges. She then escorted her to the interview room. At 11:55 p.m., Constable Hutchinson was seen on the videotape escorting Ms. D.B. into the interview room. She had no further interaction with Ms. D.B.. She did not provide a caution.

[65] Constable Rempel conducted the interview of Ms. D.B. When he arrived at 12 Division, Ms. D.B. was in the cell area. He introduced himself to her in that area and told her he would be taking her upstairs to a room. At 11:56 p.m. he is seen walking into the interview room. The interview runs from 11:56 p.m. on October 3, 2016, to 1:44 a.m. on October 4, 2016. He did not advise Ms. D.B. of her right to counsel or a give her a primary caution.

[66] In the transcript from Ms. D.B.’s interview the following exchange occurs at around 11:56 p.m.

OFFICER: Okay, you want to talk to your lawyer, right?

D.B.: Absolutely.

OFFICER: Okay.

D.B.: Thank you. You have his number, right?

OFFICER: I do I am going to call him, Harry (ph) (Done)(ph), right? So this is a phone for outgoing calls only.

D.B.: Absolutely, Frank (ph).

OFFICER: So when it rings, you can pick it up, okay? And talk to him. Just give me a few minutes to get a hold of him.

D.B.: There are no cameras in here?

OFFICER: Pardon me?

D.B.: There’s no cameras?

OFFICER: Yes, everything in here is being recorded.

D.B.: Okay…

OFFICER: So…

D.B.: …good. ‘Cause I was like I don-, not, not that you’re a guy or anything but I would feel-, but…

OFFICER: No, no.

WITNESS: … I just wanna make sure that everything is being recorded ‘cause I don’t wanna, you know, make it seem like something happened that didn’t happen. You know what I mean? ‘Cause I know some people they’re like oh, this officer hit me or you know what I mean?

OFFICER: Well, I can sure you none of that will happen. Yes, that’s a speaker that is recording everything…

D.B.: Perfect.

OFFICER: … and there’s cameras all throughout here.

D.B.: Perfect.

OFFICER: So give me a minute, I’ll call Har-, Mr. Done for you.

D.B.: Okay, try the …

OFFICER: I’ve got a number actually, uh …

D.B.: The same.

OFFICER: … (Inaudible) already spoke to him on, I believe.

[67] At 11:56 p.m. Constable Rempel left the room and at 1:02 a.m. the audio stops. The audio resumes at 1:08 am after Ms. D.B. spoke with her lawyer. Just after 1:17 a.m. the following exchange occurs:

OFFICER: Makes me crazy sitting there. So you were arrested in Toronto, somewhere in Toronto by your place?

D.B.: Yeah.

OFFICER: (inaudible), okay.

D.B: Out front of my house.

OFFICER: Okay. By a certain amount of officers or a couple of officers I would imagine?

D.B.: Yeah.

OFFICER: And then, um …

D.B.: I co-operated.

OFFICER: Yea, yeah and I have no doubt that you did. And then, um, you would have been transferred probably into our custody, like Peel Regional Police.

D.B.: Yeah.

OFFICER: With a couple of our officers. And then you would have been taken into our sally port like where our booking area where I seen you. That’s where we met?

D.B.: Mm-hmm.

OFFICER: Um, so since you-, the beginning of the night you’ve actually run into a group of different officers.

D.B. Mm-hmm.

OFFICER: So a-, um-, any conversations that you would have with them…

D.B.: Yeah.

OFFICER: … regarding this, I don’t want it to influence you at all in making a statement now to me. Like…

D.B..: Mm-hmm.

OFFICER: … taking to me. So …

D.B.: I don’t-, I’d like to know-, I don’t even know what this is about.

OFFICER: Okay, oh, okay. Well, we’ll get into that. I just wanna make sure that you know that what any of them had said to you-, if they said to you, you know what you’re gonna see Jeff who works in the vice unit at Peel Police, and you have to tell him a, b, and c, do you know what I mean? Whatever they said …

D.B.: It’s …

OFFICER: I don’t …

D.B.: … it’s irrelevant.

OFFICER: Yup. So whatever we talked about is because you and I are gonna talk about it and you wanna tell me or you wanna talk about it. That’s all …

D.B.: Okay.

OFFICER: I’m getting at. I just wanna make sure that you know that.

[68] The Crown’s position is that this exchange was a secondary caution given to Ms. D.B..

[69] Just before 1:26 a.m., the following exchange occurs:

D.B.: So I’d like to know what’s going on like what I’m charged with because ob-…

OFFICER: Did you lawyer-, and I don’t know wanna know what your lawyer….

D.B.: No, he just said it was, um…

OFFICER: Yeah, like I-, like said

D.B.: …hum…, human trafficking?

OFFICER: Yeah, human trafficking.

D.B.: Okay

OFFICER: So the-, there’s four charges.

D.B.: Okay

OFFICER: That you were arrested for. But they’re all in relation to human trafficking. ‘Cause when you think of human trafficking, what do you think about?

D.B.: Um, being forced to do something against your will, um, uh, being sold. Things like-, those kinds of things.

OFFICER: Yeah, that, that makes sense

D.B.: That’s all I can think of.

OFFICER: Yeah

D.B.: I seen movies and Taken and stuff like that.

OFFICER: Have you? Taken

D.B.: Yeah, its um…

OFFICER: Think I seen that one too.

D.B.: Lesley Nielson

OFFICER: Yup, I seen that one

D.B.: I see both, so.

OFFICER: Un yeah, so one of your charges is human trafficking, one is receive material benefits, exercise control and…

D.B.: What’s that mean?

OFFICER: S-, it’s uh, it’s all in relation to human-, or human trafficking stuff. So it’s like getting stuff from the person who you trafficked. Exercising control over that person and deriving material ben-, benefits from that person. So it-, it’s all in, in conjunction with human trafficking.

D.B.: Okay

OFFICER: Do you know what I mean? So like its Criminal Code working stuff law-like it’s…

[70] Ms. D.B. was arrested at 10:17 pm on October 3, 2016. She was told she was being charged with human trafficking. It was not until almost two hours later, at 1:26 a.m. on October 4, 2016, after she had spoken with her lawyer that she was told about the charges, including exercising control and deriving material benefits. She was not told about knowingly advertise. In those two hours, she spoke with four officers and none gave her a primary caution.

ANALYSIS

General Principles

[71] A statement given by an accused, whether exculpatory or inculpatory, to a person in authority is presumptively inadmissible. The Crown has the onus of establishing, beyond a reasonable doubt, that the statement was given voluntarily. The leading cases in this area are R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 and R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405.

[72] In David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed, (Toronto: Irwin Law, 2015) at p. 346, the authors described the proposition as follows:

In order for most statements made to a person in authority to be admissible, the Crown must establish beyond a reasonable doubt in light of all of the circumstances that the will of the accused to choose whether to speak has not been overborne by inducements, oppressive circumstances, or the lack of an operating mind. In addition, there must not be police trickery that unfairly denies the accused’s right to silence.

[73] The underlying rationale for the Crown to prove voluntariness is concern for the reliability of the accused’s statement: Singh at para. 29. In assessing voluntariness, all relevant circumstances or “the entire context” must be examined: Oickle at para. 54.

[74] In reviewing all of the circumstances, the court must determine if there were inducements, such as promises or threats sufficient to overcome the will of an accused. The court must also consider whether the accused was questioned within an atmosphere of oppression. This focuses on conduct of the police using overbearing tactics such as depriving an accused of food, water and clothing. Under those inhumane conditions, someone might confess to escape such conditions: Oickle at para. 60. Another factor is the use of non-existent evidence which may, when combined with other factors, also be a relevant consideration in determining if a confession was voluntary: Oickle at para. 61.

[75] The court must also consider whether the accused had an operating mind at the time the statement was made. The operating mind requirement means an understanding by the accused that what he or she is saying is being said to a police officer who could use it to his or her detriment: Oickle at para. 63.

[76] With these general principles in mind, I now turn to the two statements.

Mr. J.D.’s Statement

[77] Generally, I found that the testimony of the police officers regarding their interactions with Mr. J.D. during the arrest and before and during his statement to be professional, candid, forthright and not argumentative.

[78] Counsel for Mr. J.D. argued that his arrest involved violence that caused Mr. J.D. to be distressed and upset. Counsel argued that fear continued until he gave his statement two hours later and was sufficient to overcome his will. Counsel submitted that Mr. J.D. gave the statement in fear that he would be physically assaulted again if he did not do so. His nausea, while being driven to the police station, was evidence of that distress. Counsel also argued that Mr. J.D. did not have an operating mind as he lacked the ability to understand the consequences of giving the statement because he felt he had no choice but to give the statement as it was induced by fear.

[79] There is no evidence nor were there any submissions made by counsel that there were any oppressive circumstances when Mr. J.D. was interviewed. There were no overbearing tactics such as deprivation of food, water or clothing or any inhumane condition. Even Mr. J.D. acknowledged that Office McGowan was very professional and he had no concerns about his behaviour during the interview.

Was Mr. J.D. cautioned?

[80] Mr. J.D. denies being given his right to counsel or caution by Constable Hoeller in the back of the police van. This conflicts with Constable Hoeller’s evidence. He also denies that Constable McGowan cautioned him which conflicts with Constable McGowan’s evidence. In his submissions, Mr. J.D.’s lawyer did not raise any argument that Mr. J.D. had not been cautioned. Furthermore, he did not cross-examine either police officer on that issue. Nonetheless, given Mr. J.D.’s evidence that he was not cautioned, I will address this issue in these reasons.

[81] Given the conflicting evidence of Mr. J.D. and the officers, I have considered the analytical framework of R. v. W.D., [1991] 1 S.C.R. 742 in reaching my conclusion that I do not accept Mr. J.D.’s evidence that he was not cautioned by either Constable McGowan or Constable Hoeller. Based on the evidence that I do accept, I am convinced beyond a reasonable doubt that he was cautioned.

[82] I do not disbelieve Mr. J.D. because I believe the officers. Mr. J.D.’s evidence was both internally inconsistent and inconsistent with the evidence that I do accept. For example, while he complained of issues with his head and eyes during the interview, his evidence on the voir dire was that he had a complete and accurate recall of his interactions with Constable McGowan prior to the interview which he testified did not include a caution. He did not accept the possibility that his complaints of issues with his head could have impacted his ability to recall what transpired. This was an example of the internal inconsistency with his evidence.

[83] Constable Hoeller recorded the name of Mr. J.D.’s lawyer in his notebook when he arrested and cautioned Mr. J.D.. Mr. J.D. denied that he gave Constable Hoeller the name and could not give any explanation as to why Constable Hoeller would have his lawyer’s name in his notes. Constable Hoeller’s evidence about giving Mr. J.D. his right to counsel and caution and recording that contemporaneously in his notebook was not challenged on cross-examination. Likewise, Constable McGowan’s evidence that he gave Mr. J.D. his right to counsel and primary and secondary cautions was not challenged. On the videotape, Constable McGowan confirmed with Mr. J.D. that he had spoken to his lawyer before the interview. Mr. J.D. did not dispute this. Both officers recorded in their notebooks the time that they gave the right to counsel and caution.

[84] Based on the totality of the evidence, I find that the officers properly cautioned and advised Mr. J.D. of his right to counsel. Further, I find that Mr. J.D. was given the opportunity to speak with his lawyer and did so before giving his statement.

Did Mr. J.D. Give his Statement Voluntarily?

[85] Mr. J.D. testified that violence was used during his arrest and he feared violence would be used if he did not give a statement to the police. A forceful arrest, however, does not automatically preclude a voluntary confession: R. v. Hatton (1978), 39 C.C.C. (2d) 281 (Ont. C.A.) at pp. 287, 294-298.

[86] In R. v. Gobin, 2012 ONSC 2372, the accused was charged with robbery and use of an imitation firearm. He was arrested by officers who had their weapons drawn. One of the officers was concerned as the accused appeared to have a firearm tucked in his pants and in his view it was a high risk situation. While there was some discrepancies in the evidence between the two officers regarding the details of the arrest, it was not disputed that force was used to take the accused to the ground resulting in a one-inch cut to his chin when he hit the ground.

[87] In his decision, Hill J. found that in all of the circumstances, the use of force was not unreasonable or excessive. He commented that the injury to the accused was not intended and that he was not otherwise physically mistreated in any way. There was bleeding, the injury was minor and he received medical attention.

[88] Hill J. considered the nature of the arrest to be an important contextual factor but noted that the accused was properly cautioned and his demeanour during the interview demonstrated that he was cooperative, alert, responsive, not in distress and forthcoming with details. The interview was short, the questioner was not loud or threatening or physically intimidating in any way. Hill J. concluded that from the totality of the evidence, the accused’s will and ability to choose to speak or not were not overborne or otherwise unfairly compromised by the conduct of the officers. Hill J. found that the accused participated in the interview entirely of his own volition and without improper influence.

[89] There is no dispute that Mr. J.D. was arrested using the element of surprise. He was taken to the ground with force and he injured his knees. He was shown dabbing his knees with water and tissues while he gave his statement and his pants were rolled up over his knees. There was evidence of some blood on his pants. There were photographs of bandages on his knees when he was released on bail. There was no evidence of any other treatment for his knees and nothing to suggest this was more than a minor injury.

[90] Mr. J.D. testified that he struck his head on the ground when he was arrested and was already suffering from a prior concussion. As indicated above, he complained of his head being cloudy and spinning and problems with his eyes during the police interview. The photographs of his face filed as exhibits do not reveal any kind of significant physical injury. I could only see a small area of redness on his cheek but no bruising.

[91] Mr. J.D. had been recently diagnosed with MS and from the video, he is observed to be unsteady on his feet. He also told Constable McGowan that he had suffered a concussion at work in the summer of 2016. While he complained at one point that his head was cloudy and at another time he said his head was pounding, he was able to respond to each question in a clear and logical fashion. He did not appear to be confused. He was engaged and responsive throughout. He volunteered a great deal of information about various topics including his medical diagnosis and his work. Constable McGowan would ask short questions to which Mr. J.D. would respond fulsomely, without any hesitation.

[92] Furthermore, he was shown photographs of a person and an advertisement for sexual services that he was able to examine in great detail, during the interview without any complaint of problems with his vision or his head being cloudy. He was able to challenge Constable McGowan about who was in the photograph. When cross-examined, Mr. J.D. initially denied seeing a copy of the advertisement but on the video he was clearly seen looking at the advertisement and commenting on the contents of the advertisement including the posted telephone number and the hourly rate for services.

[93] Generally, Mr. J.D.’s statements of his condition was incongruous with his behaviour and demeanour throughout the interview. It was a very free-flowing interview conducted in a conversational tone with Mr. J.D.. Mr. J.D. was friendly towards Constable McGowan referring to him as “bro” or “dude”.

[94] Despite claiming to being injured during the arrest, those injuries did not result in any significant distress that would have impacted on Mr. J.D.’s ability to answers questions in a clear and cogent manner. Mr. J.D. was alert, cooperative and responsive throughout the interview.

[95] There is no dispute that some force was used to arrest Mr. J.D. as he was taken to the ground from behind and an officer lay on him to get him under control. There is also no dispute that once Mr. J.D. recognized that the persons were officers, he became compliant and stopped struggling with the officers. There is some dispute about the length of time it took to get Mr. J.D. under control and handcuffed. According to the three officers who gave evidence and were part of the arrest, it was relatively brief, lasting no more than ten seconds. Mr. J.D. testified that the struggle lasted six to seven minutes.

[96] The arresting officers who gave evidence all said that they were yelling out “police” and “calm down” from the moment Mr. J.D. was taken to the ground. Mr. J.D. disputes that they yelled out initially but agrees that the one officer lying on him yelled “police” and when he realized they were police he stopped struggling.

[97] While there is some dispute regarding the length of time that Mr. J.D. struggled, based on the totality of the evidence, there was no unreasonable or excessive use of force when Mr. J.D. was arrested. There was an element of surprise and he did fall hard to the ground. The officers all agreed that Mr. J.D.’s initial response was expected given the manner of his arrest. They did not exaggerate their evidence when describing Mr. J.D.’s resistance. They all agreed that he cooperated as soon as he realized they were police.

[98] The question is whether his fear of further police aggression was strong enough to raise a reasonable doubt that his will has been overborne. Any confession resulting from outright violence is involuntary: Oickle at para. 53. In this case, Mr. J.D. did not face any violence or threat of violence during the interview. There is also no evidence of any violence or threat of violence while he was transported to 12 Division or during the time he spent waiting to be interviewed. He asserts, however, that he continued to experience fear of the police for two hours after being arrested as a result of the nature of his arrest and that fear outweighed his will to remain silent. He asserts that he spoke to the police not out of free will, but out of fear of reprisal.

[99] There is no evidence to suggest that any officer made any threat or promise to Mr. J.D. that would amount to an inducement to make a statement. There was no evidence of any physical violence or intimidation after he was arrested. Even if Mr. J.D.’s arrest involved violence leading to fear, I still need to consider if his will to give a statement voluntarily was overborne by that fear. Based on this record, I cannot conclude that it was.

[100] The video-taped statements indicate no suggestion of an atmosphere of oppression. Constable McGowan was very polite, courteous and friendly towards Mr. J.D.. Constable McGowan offered Mr. J.D. water and allowed him to go to the washroom when requested. They even had a discussion at one point about fishing. On cross-examination Mr. J.D. described Constable McGowan as nice and professional.

[101] At 1:17 a.m., Constable McGowan asked Mr. J.D. if he had any questions for him and Mr. J.D. asked “why am I sitting here”. He then said:

Like can I talk to the other officers and say, what the hell, dude? Like you’re going on, he’s not the ringleader, he-, maybe picked them up.

[102] On cross-examination his evidence was that as Constable McGowan was not the main officer in charge, he wanted to speak to the officer in charge to tell him that Constable McGowan did not think he was the ringleader. This contradicts with his evidence that he was only speaking to Constable McGowan out of fear and that he did not know that he did not have to speak with the police. Mr. J.D. asked to speak to another officer which suggests that he was not speaking only out of fear but was giving his statement voluntarily.

[103] I do not accept that Mr. J.D.’s will to speak voluntarily was lost as a result of his fear borne out of the circumstances of his arrest. While the arrest was no doubt a surprise, Mr. J.D. was not subjected to excessive force. He calmed down quickly, and no weapons were used in the arrest. While Mr. J.D.’s knees were injured, the extent of the injury was minor and the product of the reasonable actions of the arresting officers. Mr. J.D. may have hit his head. If he did, it did not affect his understanding of the process. By his own admission, his memory of that night is clear and unambiguous.

[104] A review of the transcript and video of Mr. J.D.’s interview clearly indicates that he suffered from no diminished or impaired mental faculties. He was clearly able to understand what he was saying and that he was speaking to a person in authority. He was properly cautioned and aware that what he said could be used against him. I therefore find his statement voluntary.

Ms. D.B.’s Statement

[105] There is no dispute that a primary caution was not given to Ms. D.B.. The Crown’s position is that because she was given her rights to counsel, spoke with counsel and was given a “soft” secondary caution by Constable Rempel during the interview, the Crown has shown Ms. D.B.’s statement was voluntary beyond a reasonable doubt.

[106] Ms. D.B.’s position is that without a primary caution, she did not know that she did not have to speak with Constable Rempel or that if she did, what she said could be used as evidence in her prosecution for an offence. Without that caution, her statement was not voluntary.

[107] The presence of a caution is a factor in determining the voluntariness of a statement made by a person under arrest or detention. The caution informs the person of their right to remain silent. The fact that a caution is given does not necessarily mean that the statement is given voluntarily. Likewise, the lack of a caution does not mean that the statement is automatically not voluntary. The court must consider all of the surrounding circumstances to determine if the statement is voluntary: Singh at para. 31.

[108] In Singh at para. 33 the court held that if the person detained has exercised their right to counsel, the overall significance of the caution may be somewhat diminished.

[109] In R. v. Bottineau, 2011 ONCA 194, the Court of Appeal for Ontario repeated these principles and stated at para. 88 that the absence of a standard caution is only one factor to be considered in the voluntariness analysis. The court must consider all of the circumstances in assessing whether or not a statement was made voluntarily.

[110] The defence relied on R. v. Worrall where Watt, J. (as he then was) described the concept of voluntariness at para. 106: “Voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them.”

[111] In this case, Ms. D.B. was detained at the time she spoke with Constable Rempel. As noted in para. 32 of Singh, after detention, the accused is in a more vulnerable position as they cannot simply walk away. The Supreme Court of Canada found:

The fact of detention alone can have a significant impact on the suspect and cause him or her to feel compelled to give a statement.

[112] Ms. D.B. had been detained by police for two hours before she spoke with Constable Rempel. During that time, she was not cautioned. Furthermore, the only information she had about the charges when she spoke with her lawyer was that she was charged with human trafficking. The indictment, in fact, lists four offences for which she was charged, yet she was not informed of that until 1:26 a.m., about 30 minutes after the interview commenced. This leads me to question whether she understood the full nature of the charges and the jeopardy she faced when she spoke with her lawyer.

[113] The Crown relied on R. v. Rodgerson, 2016 ONSC 6094. In that case, the accused was charged with second-degree murder. The accused did not allege that he was subject to any threats, inducements or improper use of physical force. The statement was videotaped. The caution he received was that he did not have to say anything but he was not told that anything he did say would be recorded and could be used as evidence. The accused’s position was that the lack of a full caution rendered his statement involuntary.

[114] The court noted that the accused had been read the full primary caution seven hours earlier when he was arrested for a drug offence. The court found that while the caution related to his arrest for drug offences and not for second-degree murder, it nonetheless included the correct information about his right to silence and informed him of the consequences of waiving that right. The court also noted that the accused had spoken with duty counsel in relation to the drug charges and in relation to the investigation surrounding the death of the victim. At para. 123, Bird J. found that it is reasonable to infer that one of the lawyers the accused spoke with would have explained his right to remain silent and the consequences of speaking to an officer. In addition, Bird J. noted that the accused made comments at several points during his statement that he fully understood his right to remain silent. Bird J. concluded that based on all of this factors, the failure of the officer to read the accused the complete primary caution did not raise a reasonable doubt about the voluntariness of his statement.

[115] Rodgerson is distinguishable from the facts of this case. Ms. D.B. was never read a caution of any kind advising her that either she did not have to say anything or that anything she said would be recorded and could be used against her. She made no comments during her statement that reflected any understanding of her right to remain silent. Throughout the statement, Ms. D.B. was engaged and discussed issues at length with Constable Rempel. Furthermore, as noted in the exchange with Constable Rempel when the interview commenced, Ms. D.B. believed that the interview was being recorded to protect Constable Rempel from potential allegations of misconduct against him. This comment suggests that Ms. D.B. did not understand why the statement was being recorded. At no time did Constable Rempel inform her otherwise. This leaves me with a doubt.

[116] There is no dispute that Ms. D.B. exercised her right to counsel. Unlike in Rodgerson, at no time was she given any primary caution before she gave her statement. Furthermore, when she spoke with her lawyer, she had not yet been informed of all of the charges.

[117] The secondary caution which Constable Rempel raised with Mr. D.B. during the interview was described by the Crown to be a “soft” secondary caution. Given the totality of the circumstances, a “soft” secondary caution is not sufficient to satisfy me that Ms. D.B. had an awareness of what was at stake in speaking to persons in authority.

[118] Ms. D.B. made no comments during the interrogation that reflected her understanding of her right to remain silent. Given the totality of the circumstances, the assumption that the lawyer she spoke with informed of her right to remain silent does not satisfy me, beyond a reasonable doubt, that the statement was given voluntarily. Her statement is therefore inadmissible.

Justice L. Shaw

Released: January 8, 2019