Court File and Parties

COURT FILE NO.: CR-17-912 DATE: 20190111 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – JORDAN OSBORNE Defendant

Counsel: Lisa Wannamaker for the Crown Magdalena Wyszomierska for the Defendant

HEARD: January 7-8, 2019

RULING ON VOLUNTARINESS VOIR DIRE

BOSWELL J.

INTRODUCTION

[1] Mr. Osborne was arrested on November 29, 2016 and charged with the first degree murder of Terence Pringle. Mr. Pringle had been beaten to death in his home several days earlier.

[2] At 2:01 a.m. on November 30, 2016 two officers from the Peterborough Police Service began a video-recorded interview of Mr. Osborne. Over the course of the next 40 minutes or so, Mr. Osborne made a number of inculpatory statements. He said a female acquaintance had complained to him that Mr. Pringle had been talking trash about her. The female offered him a small amount of cocaine to go to Mr. Pringle’s apartment and do “whatever it took” to shut him up.

[3] Mr. Osborne confessed that he and two other males went to Mr. Pringle’s residence. He admitted that he struck Mr. Pringle on the head with a hammer multiple times. He said he took it overboard. On the final strike, the hammer became embedded in Mr. Pringle’s head.

[4] The Crown wants to tender Mr. Osborne’s confession into evidence in the case against him. Under Canadian law, where an accused person makes a statement to a person in authority, the Crown must establish, as a prerequisite to admissibility, that the statement was made voluntarily. Voluntariness must be proven to the reasonable doubt standard.

[5] In this instance, defence counsel asserts that the manner in which the investigators conducted the interview of Mr. Osborne raises a reasonable doubt about the voluntariness of his confession. She contends that the investigators induced Mr. Osborne’s confession through misrepresentations and implicit threats or promises that were unfair and overwhelming. She urges the court to exclude the confession from evidence.

[6] The following reasons explain why I have no reasonable doubt that Mr. Osborne’s statement was made voluntarily and is therefore admissible in evidence against him.

THE GOVERNING PRINCIPLES

[7] The admissibility of any statement made by an accused person to a person in authority is governed by the common law “confessions rule”. The current formulation of the rule and its proper scope is found in the Supreme Court’s decision in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. The rule has two essential goals: protecting the rights of accused persons without unduly limiting society’s need to investigate and solve crimes.

[8] The majority decision in Oickle was written by Justice Iacobucci. He expressed the modern confessions rule in the following simple terms: a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to its voluntariness. He wrote, at para. 69:

Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.

[9] Voluntariness must be assessed in a contextual way. All of the circumstances surrounding the making of the statement must be considered in terms of assessing whether a reasonable doubt exists as to its voluntariness.

[10] Concerns about voluntariness intersect with concerns about reliability. Statements that are coerced, or induced by way of threats, promises, unacceptable police trickery or oppressive circumstances are not reliable. Neither are confessions made by a person who is not functioning with an operating mind.

[11] While reliability is the primary concern, the confessions rule protects a broader concept of voluntariness. In particular, in addition to reliability concerns, it focuses on the protection of the rights of the accused and the fairness of the process: Oickle, para. 68. The concept of voluntariness is, as Justice Iacobucci said, quoting Professor Wigmore, “shorthand for a complex of values” including reliability, preservation of individual freedom and society’s desire for the police to respect the law while enforcing it: Oickle, para. 70.

[12] In this case, there is no suggestion that Mr. Osborne did not have an operating mind during the course of the interview. The operating mind standard is not a high one. It requires nothing more than demonstrating that the accused knew what he was saying and that he was saying it to a police officer who may use it to his detriment. See Oickle, para. 63. I have no doubt that Mr. Osborne had an operating mind.

[13] There is furthermore no suggestion that the voluntariness of Mr. Osborne’s confession was compromised by police trickery. Indeed, no such trickery is asserted.

[14] What is in issue in this case is whether the investigators employed threats or promises that were strong enough to overcome Mr. Osborne’s will and thereby induced an involuntary statement. Moreover, whether any of the conditions surrounding the making of the statement were oppressive.

[15] Research has demonstrated that the majority of false confessions are of a type described as “compliant-coerced”. These are confessions that are the product of threats or promises. Nowadays one rarely finds glaringly obvious threats or promises in police interviews. More often they are subtle or veiled. Trial judges must examine the context and content of a confession quite carefully.

[16] As Justice Iacobucci held, at para. 68 of Oickle,

…[I]n reality the basic idea is quite simple. First of all, because of the criminal justice system's overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness…If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision.

[17] When examining any inducements on offer and their effect on the accused, it is important to recognize that inducements of some sort are an almost inevitable part of any interrogation. They are not presumptively inappropriate. They become improper only when strong enough when, in context, they raise a reasonable doubt about whether the will of the subject has been overborne: Oickle, para. 57.

[18] Justice Fish, in a dissenting opinion in R. v. Spencer, 2007 SCC 11, described what the phrase “overbearing the will of the accused” means. He said, at paras. 31-32, that the phrase does not mean the accused has “lost any meaningful, independent ability to choose to remain silent”. It means only that the accused would not have given the statement but was “persuaded to do so in order to achieve an expected result – to avoid threatened pain or achieve promised gain.”

[19] It is important, as Oickle directs, to look for a quid pro quo offer from the police. A quid pro quo may be an essential component of a threat or promise. It is not, however, determinative on its own. What is pivotal is the strength of the inducement or threat, considered in the overall context. See Spencer, as above, at para. 19 and R. v. J.M., 2017 ONSC 7260 at para. 23.

[20] In summary, before Mr. Osborne’s confession may be admitted into evidence, I must be satisfied, beyond a reasonable doubt, that it was given voluntarily. In order to make that determination I must look carefully at the context in which the confession arose. In this case that context will reveal possible inducements, which I will detail below. I must consider these inducements carefully with a view to assessing their strength and the effect, if any, they had on Mr. Osborne and his decision to confess his involvement in the killing of Mr. Pringle.

[21] I will begin my analysis with a review of the overall context of the interview.

THE CONTEXT

[22] A number of factors are not contentious. For instance, it is not disputed that:

(a) Mr. Osborne was advised, at the time of his arrest, of his right to communicate with counsel;

(b) Mr. Osborne was appropriately cautioned about his right to remain silent;

(c) Mr. Osborne had an opportunity to consult with counsel after his arrival at the police station; and,

(d) Mr. Osborne was not subjected to any violence, threats, inducements or other oppressive conduct by the police prior to his interview.

[23] Mr. Osborne was arrested at roughly 4:17 p.m. on November 29, 2016. He was transported to the local police station, arriving at roughly 4:35 p.m. There was a wait to get into the single sally port at the station, so he was not booked in until about 5:15 p.m. His clothes were seized and some photographs taken. He advised the booking sergeant that his date of birth was April 13, 1992 (he was accordingly 24 years of age). He said he had not consumed drugs or alcohol over the past 24 hours, other than some marijuana. He appeared sober and healthy. He was placed into a cell, wearing a police-issued white jumpsuit and cloth booties.

[24] At about 5:45 p.m. Mr. Osborne was taken out of his cell and placed in a phone room where he was able to have a private phone call with a lawyer. That call lasted about 15 minutes, after which time he was returned to his cell. He was fed dinner.

[25] Mr. Osborne was awakened in his police cell at roughly 2:00 a.m. on November 30, 2016 by Detective Constables Reesor and Self. He was taken to an interview room for the purpose of interrogation.

[26] To this point, Mr. Osborne had made no complaints about his treatment and I otherwise have no evidence before me to suggest that he was mistreated in any way.

THE STATEMENT

[27] The interview itself was not lengthy. It commenced at about 2:02 a.m. and was concluded by about 2:44. It was conducted in a typical interview room and was video and audio recorded. Mr. Osborne appeared to be in reasonable health, not unduly emotional, and otherwise appropriately responsive to questions put to him.

[28] The interview was conducted in a non-emotional way. The officers were polite and non-aggressive throughout. Mr. Osborne evidenced frustration and agitation at times, by raising his voice, but otherwise was not overly emotional. There is no evidence to support a finding that he was a particularly vulnerable person.

[29] When the interview commenced, Mr. Osborne confirmed that he had taken the opportunity to speak with counsel. He was aware of his right to remain silent and indeed expressed that he intended to exercise that right. He said the lawyer had told him not to say anything and then, “I’ll tell you, I’m going to stick to that. I am not going to say anything.”

[30] Detective Constable Reesor then read him the secondary caution. By that I mean that Detective Constable Reesor advised Mr. Osborne that he should not be influenced in making a statement by anything that any other officer may have said to him previously.

[31] Once the initial formalities were out of the way, Officer Reesor told Mr. Osborne that he was there “on a pretty serious charge”. Mr. Osborne advised the detectives that he did not know why he was being arrested. He said he was scared. He indicated that he had not done anything wrong. He said he missed his dog, Fluffy, and just wanted to see him.

[32] It almost goes without saying, but the task of a police interrogator is to get the subject of the interview talking, preferably about the offence and any role that he or she had in it.

[33] Police interrogators invariably spend the initial part of an interview attempting to build a rapport with the subject of the interview. In this instance, the rapport-building part of the interview was quite truncated. It consisted of a short discussion about Fluffy the dog, followed by a brief overview of Mr. Osborne’s living conditions. The interview then moved into a confrontation phase. In other words, within a few minutes of the interview commencing, the officers confronted Mr. Osborne about the offence and his role in it.

[34] Having reviewed the interview carefully, both on video and in transcript form, it appears to me that two primary themes were developed in an effort to persuade Mr. Osborne to talk about the offence and his part in it:

(i) The theme that the police already knew what had happened from having spoken with others. Detective Constable Reesor told Mr. Osborne that he knew what had happened. He said he had spoken to a number of witnesses and knew who was at the crime scene and who did what. The interview was portrayed as Mr. Osborne’s opportunity to tell his side of the story; and,

(ii) The theme that Mr. Osborne was facing the serious offence of first degree murder, but that if he did not go to the victim’s house with the intent to kill him, but only to rough him up, then perhaps a lesser charge would be more appropriate.

[35] These twin themes emerged less than four minutes into the interview. They are exemplified by the following exchange:

DC Reesor: We know what happened. People have told us exactly what’s happened. We knew what happened before we talked to you guys, but we know what’s happened. So I want to give you the opportunity to get a few things off of your conscience and to be square with me...

Mr. Osborne: I haven’t done anything.

DC Reesor: So listen. So you, right now, are facing a first degree murder charge.

Mr. Osborne: I understand that.

DC Reesor: That’s, I, I don’t know a worse charge than that.

Mr. Osborne: I know. I understand that.

DC Reesor: That’s it.

Mr. Osborne: I haven’t…

DC Reesor: So – so I know something happened. I know you’re involved, and listen…

Mr. Osborne: I’m not involved in any of that sir.

DC Reesor: I know you were involved in some – in somebody being hurt. What I don’t know is if your intention was actually to kill the person or just rough them up and things just went worse than you expected. That’s what I’m trying to figure out. And there is a difference.

[36] Mr. Osborne insisted that he had done nothing to warrant a first degree murder charge and that he had not been involved in the alleged offence.

[37] Officer Reesor asked him if he knew the sentence for first degree murder and he said, “Twenty-five to life, yeah. But I’ve done nothing.”

[38] Officer Reesor returned to his twin themes, now about seven minutes into the interview:

DC Reesor: If things – if things weren’t supposed to go this way, then maybe you should be charged with something other than first degree murder, if the intention wasn’t to go over there and kill this guy. But – and then you get to see Fluffy sooner, because your sentence isn’t twenty-five to life, it’s potentially something less than that. But right now, all I have is all of this evidence, all of these people, I’ve got video from numerous houses on Stewart Street. Not just the video at this apartment, numerous houses. Okay? I’ve got people telling exactly what you’ve told them. I’ve got people telling me exactly what you used to do this.

[39] Mr. Osborne continued to deny any involvement:

Mr. Osborne: What happened sir?

DC Reesor: I know exactly where the object you used is right now.

Mr. Osborne: What happened? Where is it? What’s going on?

DC Reesor: I know all of those things.

Mr. Osborne: I’ve done nothing. I’ve done nothing.

[40] Detective Constable Reesor became more specific in revealing some of the details he knew:

DC Reesor: So when we go over to Romaine Street and pick up your shoes that you were wearing at the time, where you did your laundry after this happened, and we grab the weapon you used that’s sitting there in the basement, we’re not going to be able to tie any of that stuff to the crime scene? That’s what you’re telling me?

Because that’s, that’s, that’s where we’re off to. We’re going to Romaine Street where your shoes are that you wore during this, and where the weapon is that you used to do this.

Look, you are in a world of hurt right now and I’m giving you the opportunity to help yourself out, but you’re not taking it.

I know what’s gone on Jordan. I’m not playing a game here. I’m not coming in here saying I know what’s happened, when I don’t know what’s happened.

Mr. Osborne: I’m not a bad person.

DC Reesor: I – I know you’re not a bad person.

Mr. Osborne: I’m not a bad person.

DC Reesor: So Jordan, listen to me, listen to me.

Mr. Osborne: I just don’t want to go to jail again.

[41] Officer Reese, I think sensing that Mr. Osborne was on the verge of opening up, returned to the issue of intention:

DC Reesor: Did you go over there with the intention to kill him?

Mr. Osborne: No, no.

DC Reesor: Did you go over there with the intention to just rough him up and get him to shut up? ‘Cause there’s a big difference, and I need you to help me out here. If you go over there with the intention to kill him…

Mr. Osborne: I don’t know who’s trying to help me out, man. I really don’t know who’s trying to help me out.

DC Reesor: Listen, I’ve given you just a little bit of what I know. I know way more than that, but I think I just proved to you that I know you’re involved in this.

Mr. Osborne: Mm-hmm?

DC Reesor: Yeah.

Mr. Osborne: Mm-hmm.

DC Reesor: So, Jordan, let me ask you again. When you go over to Terry’s place, is your intention to kill him or is your intention to rough him up to scare him? You need to be honest with me here.

Mr. Osborne: Just to scare him.

[42] The confession continued from this point. It had commenced just eleven minutes or so into the interview.

THE PARTIES’ POSITIONS

The Crown

[43] The Crown describes the interview conducted by Detective Constables Reesor and Self as “brief and non-confrontational”. It occurred after Mr. Osborne had been given an opportunity to speak to counsel and after he was provided with the appropriate caution about his right to silence.

[44] According to the Crown, Mr. Osborne was treated fairly by the police. He was given an opportunity to rest and to eat. During the interview, the questioning was non-aggressive. The police did not tell Mr. Osborne anything that was not true.

[45] While conceding that some of the language used by Detective Constable Reesor might have been better, the Crown asserts that any inducements held out to Mr. Osborne were insufficient to overbear his will. Even though Detective Constable Reesor told Mr. Osborne that he might be more appropriately charged with something less than first degree murder if he only intended to rough up the victim, no promise was held out to him that his charges would be reduced if he confessed. At no time did the officers tell him that they had the power or authority to reduce his charge. In any event, Mr. Osborne did not immediately confess upon being told that information about his intentions might make a difference.

[46] Ultimately, in the Crown’s submission, Mr. Osborne confessed only after he became aware of the depth of knowledge the police already had about his involvement in the offence. He talked in the hope of helping himself out.

[47] The court is urged to conclude that, in the absence of any serious inducements, threats, promises, oppression or police trickery, the confession elicited from Mr. Osborne was voluntarily made and therefore admissible in evidence.

The Defence

[48] Mr. Osborne’s counsel submits that the Crown has mischaracterized the strength of the inducements. She says they were strong and misrepresentative of the law. Their presence, along with the fact that Mr. Osborne was made to wear only a paper-thin jumpsuit throughout the evening and during the interview, should raise a reasonable doubt about the voluntariness of any statements made by him.

[49] Defence counsel does not submit that the seizure of Mr. Osborne’s clothing and the provision of a thin jumpsuit created, on its own, a circumstance of oppression sufficient to undermine the voluntariness of the confession. Instead, counsel argues that it was merely one factor to consider in the overall context in which the confession arose.

[50] More significant was the inducement, which defence counsel submits was powerful enough to change the course that Mr. Osborne had set out on – the intention to follow his lawyer’s advice and make no statement.

[51] Defence counsel contends that the police repeatedly reinforced the serious jeopardy Mr. Osborne faced and offered him the opportunity of a reduced charge if he confessed to going over to the victim’s home to “rough him up”. They misled him by suggesting that the absence of an intention to kill would undermine the first degree murder charge, completely glossing over the fact that s. 229(a)(ii) of the Criminal Code provides for alternate states of mind for murder. [1]

[52] They offered up a reduced charge, a shortened period of custody and the ability to be reunited with his beloved dog sooner, in exchange for a confession. They did so in the face of what they held out was crushingly convincing evidence of his culpability for first degree murder. Naturally Mr. Osborne confessed, fearing that if he did not do so, he would be looking at a prolonged period of jail time.

[53] Defence counsel urges the court to conclude that there is at least a reasonable doubt about the voluntariness of Mr. Osborne’s statement and exclude it from evidence.

DISCUSSION

[54] I will begin my analysis with some general observations about the interview.

[55] I am satisfied that Mr. Osborne was treated fairly and respectfully by all of the police officers he came into contact with from the time of his arrest until the conclusion of his statement.

[56] He had an opportunity to obtain legal advice from a respected, senior member of the local criminal bar. He was fed and had an opportunity to sleep. Reasonable people may differ about whether it was reasonable or necessary to wake Mr. Osborne up at 2:00 a.m. to give a statement, but that is a relatively minor issue in my view.

[57] The interview itself was relatively brief, coming in at less than 45 minutes in total. The investigating officers were polite and non-aggressive. It was, by and large, a calm and rational discussion.

[58] There are three specific aspects of the interview that were litigated on the application and which may, when viewed collectively and in the context of the interview as a whole, impact on the voluntariness of Mr. Osborne’s utterances. They are:

(a) The jumpsuit Mr. Osborne was compelled to wear;

(b) The alleged misleading statements made by Detective Constable Reesor to Mr. Osborne regarding his jeopardy and, more particularly, the requisite state of mind for murder; and,

(c) The purported inducement; to wit, the subtle promise of a reduced charge if Mr. Osborne confessed.

[59] I will examine each of these aspects of the interview in turn, though to be clear, they must be, and have been, considered cumulatively.

The Jumpsuit

[60] Forensic identification officers seized all of Mr. Osborne’s clothing as potential evidence. He was provided with a white jumpsuit – basically a set of coveralls – and a pair of cloth booties to wear. This outfit is apparently standard issue when a prisoner’s clothing is seized.

[61] The jumpsuit is constructed of relatively thin material. It is clearly not insulated. It is possible to see the sheen of Mr. Osborne’s skin through the fabric when watching the video of the interview.

[62] I do not expect that the jumpsuit would have provided much warmth. That said, I have no evidence about the ambient temperature in the cells area. Though he expressed a desire to have his own clothing back, Mr. Osborne did not complain at any time of being cold. He was provided with a blanket to use in his cell. He asked for an additional blanket, but he said he wanted it to fashion into a pillow, not for additional warmth.

[63] On the evidentiary record before me, I find nothing untoward about the jumpsuit provided. I do not consider the circumstances leading up to or during the statement to have been oppressive in any way. In my view, the provision of the jumpsuit played no part in the confession given by Mr. Osborne.

The Alleged Misrepresentation

[64] Defence counsel submitted that Mr. Osborne was repeatedly told that he was facing a charge of first degree murder and then advised that if he had not gone to the victim’s apartment with the intent to kill him, perhaps a lesser charge would be more appropriate. This suggestion, she says, was a misrepresentation.

[65] I agree that Mr. Osborne was confronted with the fact that he faced a very serious charge. And I agree that Detective Constable Reesor made a number of references to the seriousness of Mr. Osborne’s situation. In my view, these were truthful statements.

[66] There is no doubt that one of the principal themes developed in this short interview was the idea that if Mr. Osborne had not gone to Mr. Pringle’s house with the intention to kill him, then perhaps he was not liable for first degree murder.

[67] Defence counsel contends that the police misled Mr. Osborne by suggesting to him that there is a legal difference between going to the victim’s apartment to kill him and going there to rough him up. She submits that the police left Mr. Osborne with the distinct impression that if he had gone to Mr. Pringle’s apartment with the intention of just roughing him up, he could not be liable for first degree murder. This, she says, is wrong. It is wrong because the Crown may establish the requisite intent for murder if Mr. Osborne went to Mr. Pringle’s apartment with the intention of causing him bodily harm which he knew was likely to kill him and yet he persisted in the attack anyways, reckless as to whether death ensued.

[68] I do not share defence counsel’s concern about this legal distinction. While the phrase, “rough him up” is open to possible different interpretations, I am of the view that the defence concern puts too fine a point on the officer’s statements. I believe the officer was distinguishing between having an intent to kill and not having an intent to kill. Having an intent to kill, in my view, includes both alternatives found in s-ss. 229(a)(i) and (ii).

[69] Based on information the investigators had received through other interviews, they were aware that Mr. Osborne was present at the time of the killing and that he had struck the victim in the head with a hammer. It was a fair question to ask him what his intention was in going to Mr. Pringle’s apartment. In my view, it was reasonably accurate and fair to put to him that there is a difference between visiting another for the purpose of killing him and visiting another for the purpose of roughing him up and/or scaring him.

The Purported Inducement

[70] An arguably more concerning feature of the exchanges between Detective Constable Reesor and Mr. Osborne is what defence counsel contends was an inducement along the following lines: if Mr. Osborne confessed to his involvement in the killing of Mr. Pringle, he could expect a reduced charge, provided he did not go to Mr. Pringle’s apartment with the intention of killing him.

[71] Again, the seriousness of a first degree murder charge was reinforced repeatedly to Mr. Osborne throughout the interview. He expressed that he was scared, that he did not want to go to jail for a long period of time and that he wanted to see his dog. He appeared highly motivated to avoid a first degree murder charge.

[72] Defence counsel submits that there is clear evidence that Mr. Osborne understood his charges would be reduced if he confessed and confirmed that he had not intended to kill Mr. Pringle. She points to a number of comments he made to the investigating officers following his confession, including:

(a) I just – I really don’t want to be charged with a first degree murder charge at all. It wasn’t on purpose;

(b) I’ve nothing more to say. I’m just saying, like, I just want to know what’s going on now; and,

(c) What’s my charge now?

[73] Defence counsel suggests that Mr. Osborne’s questions reflect the bargain that was made with the police: he confessed, with the expectation that his charge would be reduced. She submits that the police, of course, knew all along that there was nothing he could say that would result in his charges being reduced.

[74] There is no doubt that an explicit offer made by the police to provide lenient treatment in exchange for a confession is clearly a very strong inducement and will almost invariably raise a reasonable doubt about the voluntariness of any statement that follows: Oickle, para. 49.

[75] But having considered the entire context of the interview in issue, I am not satisfied that any such explicit offer occurred. Nor am I satisfied that Mr. Osborne actually thought he had made a bargain to confess in exchange for a reduced charge.

[76] I accept that Mr. Osborne was motivated to avoid a charge of first degree murder, but anyone in his circumstances would be. It does not naturally flow from that motivation that he was likely to falsely confess to killing Mr. Pringle, albeit unintentionally.

[77] There was no reasonable basis for him to believe that his charges would be reduced as a result of a confession. At no time did either of the interrogating officers suggest that Mr. Osborne’s first degree murder charge would be reduced if he confessed. They did not tell him that they had the authority to reduce his charge. They did not tell him that they would attempt to persuade the Crown or the court to reduce his charge or to impose a lighter sentence upon him. They made no express offer at all.

[78] Detective Constable Reesor made two comments that particularly touch upon this issue. I have noted both already. They are:

(a) He said, roughly seven minutes into the interview, “If things weren’t supposed to go this way, then maybe you should be charged with something other than first degree murder, if the intention wasn’t to go over there and kill this guy; and,

(b) Just over a minute later he added, “Look, you are in a world of hurt right now and I’m giving you the opportunity to help yourself out, but you’re not taking it.”

[79] The first comment is an observation that suggests Mr. Osborne’s jeopardy may be less if he had not gone to Mr. Pringle’s home with the intention of killing him. That is a correct statement in my view. It is not a promise to reduce the charges if Mr. Osborne confesses and I do not believe Mr. Osborne understood it that way.

[80] The second comment, “I’m giving you the opportunity to help yourself out” is perhaps more concerning. It trends towards the problematic suggestion that “it would be better if you confessed”. That type of language has been criticized by many courts, including in Oickle. That said, in Oickle, Iacobucci J. held that “it would be better” comments “require exclusion only where the circumstances reveal an implicit threat or promise”. (Para. 55).

[81] In the overall context of this interview, I do not think that Mr. Osborne would have understood that he was being promised more lenient treatment in exchange for a confession. Nor do I think there was an implicit threat made. He was facing a first degree murder charge. The police had evidence that tended to support that charge. They merely made truthful references to that state of affairs.

[82] In my view, Mr. Osborne appreciated that he was in serious jeopardy given the things that other people had told the police. He came to realize that the police had learned a great deal from other participants and he decided it was in his best interests to tell his side of the story. While it is not uncommon for the police to exaggerate the evidence that they have obtained, when confronting a suspect, that does not appear to have been the case here. It would appear that Detective Constable Reesor’s references to the evidence were truthful.

[83] Inducements based on true information tend to be treated more favourably than inducements based on false information. Harris J. explained the difference in R. v. J.M., 2017 ONSC 7260, at para 37:

The case law makes an important distinction between the police telling an accused accurate and factual information and the police lying in order to induce a statement. Accurate information, while it may be an inducement, is not improper and cannot render a statement involuntary: R. v. Fernandes, 2016 ONCA 772, 343 C.C.C. (3d) 29 at para. 30; R. v. Backhouse, 195 O.A.C. 80 (Ont. C.A.) at para. 121; R. v. Teske, 202 O.A.C. 239 (Ont. C.A.) at para. 77. This distinction between the treatment of true and false information is derived from the fairness concerns which motivate the voluntariness rule.

[84] There is nothing improper when an accused person comes to the decision that it may ultimately be in his or her best interests to speak to the police, provided that decision was not coerced through threats, promises, trickery or oppressive circumstances. In this instance, I am satisfied that Mr. Osborne reached his decision on the basis of a consideration of the mounting evidence against him and the desire to set the record straight that he had not intentionally killed Mr. Pringle.

CONCLUSION

[85] In conclusion, I am satisfied beyond a reasonable doubt that the statement given to the police by Mr. Osborne in the early morning hours of November 30, 2016 was given voluntarily. In the result, it is admissible in evidence.

Boswell J.

Released: January 11, 2019

[1] Section 229(a) of the Criminal Code provides that culpable homicide is murder where the person who caused death either (i) intended to kill the victim; or (ii) intended to cause the victim bodily harm that he knows is likely to cause death and is reckless about whether death ensues.