Court File and Parties

COURT FILE NO.: CR-17-40000638 DATE: 20190417 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN Applicant – and – MIKE PACK Respondent

Counsel: Andres Hannah Suarez for the Applicant Vivek David for the Respondent

HEARD: March 18-20, 2019

RULING RE: ADMISSIBILITY OF THE ACCUSED’S STATEMENT TO A PERSON IN AUTHORITY

THEN J. :

[1] The accused is charged with dangerous operation of a motor vehicle and failing to remain at the scene of an accident causing bodily harm in connection with a collision between his vehicle and a person at or near the intersection of Finch and Sentinel at approximately 2:30 am of July 2, 2016.

[2] The Crown seeks a ruling as to the voluntariness of the accused’s videotaped statement made to Detective Parsons at approximately 2:00 pm on Saturday, July 2, 2016, at the police station. After the completion of the voir dire I gave my “bottom line” ruling that the accused’s statement was admissible as the Crown had proved beyond a reasonable doubt that the accused had an operating mind and that the statement was voluntary.

[3] I now outline the fuller reasons which I indicated would be forthcoming.

[4] By way of background, the accused notified the police that he was coming to the police station to turn himself in at approximately 12:00 noon on July 2, 2016, and surrendered himself to Detective Parsons at 1:15 pm. He was arrested, given his rights to counsel, given the primary and secondary caution and availed himself of access to duty counsel prior to the videotape interview commencing at approximately 2:00 pm. There is no issue that the accused was fully informed of and fully exercised his Charter rights.

[5] On the voir dire, Detective Parsons testified that neither he nor anyone else offered any benefit on inducement or threats to the accused. While he detected the odour of alcohol on the breath of the accused while in the interview, he testified that he did not notice any indicia of intoxication, such as difficulties with mobility or balance, slurring of words or bloodshot eyes. He observed the accused to be thoroughly engaged in answering his questions in a cogent manner and nodding to indicate that he either agreed or understood what was being said by the Detective.

[6] The accused, during the interview, stated that after the accident he had consumed up to 4 beers at an after hours facility, but had not consumed alcohol after 7:00 am. In that regard the Detective testified that if the accused’s statement was accurate the accused would not have been impaired at 2:00 pm, although the odour of alcohol could still remain on his breath.

[7] On the basis of his extensive experience with impaired drivers, Detective Parsons formed the opinion that the accused was not impaired. He further testified that if he had any concern that the accused was impaired he would have delayed the interview.

[8] Detective Parsons had no concerns with the mental health of the accused, as there was no indicia to suggest mental illness. The accused had stated to the booking officers that he did not have any mental health issues and that he was not taking any medication in connection with those issues.

[9] During the course of the interview the accused produced a diagram in which he indicated the direction of travel, designating his vehicle as “ME” and the location of the pedestrian when he was hit as “P”.

[10] During the course of his cross-examination of Detective Parsons and in his submissions at the conclusion of the voir dire it was the position of Mr. David that the use of the word “pedestrian” in the detective’s questioning of the accused constituted “loaded questions” or prompting which, in combination with the impairment of the accused, caused his will to be overborne so as to seemingly admit that he knew he hit a pedestrian, rather than to maintain a contrary position in the interview that he did not know what he hit.

[11] The position of Detective Parsons on cross-examination was that he did not use loaded questions or prompting to induce the accused to admit he knew he hit a pedestrian at the time of the accident. It was clear to him early on in the statement that the accused knew he hit a pedestrian.

[12] Detective Parsons testified that at the commencement of the video-taped statement he had indicated to the accused the nature of the injuries to the victim of the collision. He did not specify whether the victim was a pedestrian, a cyclist or a passenger in a car. Rather it was the accused who, in response to the open ended question of “what happened?” first indicated that he had hit “somebody on the road”:

PACK, Mike: Well, I was coming from, uh, Fox and Fiddle. PARSONS, Officer: Okay. PACK, Mike: And going down west on Finch. The light was green. Next thing I know there's somebody on the road. And I was alone in the car at that time so after I, I heard the knock or something I just panicked and I went to leave the car in the road somewhere and I just ran away. I've been walking around senselessly for the whole day since I was thinking I, I ended somebody's life and probably that's what just got me thinking, uh, and got me confused (emphasis added)

[13] In my view, the most literal and logical interpretation of the words “somebody on the road” is that the accused stated he had hit a pedestrian in the context of the entire passage.

[14] Also, while he detected the odour of alcohol on the breath of the accused and discussed the consumption of alcohol with the accused during the taking of the statement, it was clear to Detective Parsons, based on his experience with impaired drivers, both as a breathalyzer technician and an arresting officer, that the accused was not impaired.

[15] There were no other indicia of impairment and the accused appeared by his demeanour to understand the officer’s questions and gave cogent answers.

[16] The accused did not testify on the voir dire.

Analysis

[17] The focus of the inquiry as to voluntariness is on the conduct of the police and the effect of that conduct on the applicant’s ability to exercise free will. In that regard the court will consider the protection of the accused's rights, as well as the need to investigate and solve crimes in order to protect the public. Among the factors to consider include inducements by threats or promises, whether the circumstances in which the utterance was obtained were oppressive, whether the statement was made by a person with an operating mind and whether the police resorted to trickery. (See R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 (S.C.C.) at paras. 33, 47, 47-71.

[18] As stated in S.N. Lederman, A.W. Bryant and M.K. Fuerst in The Law of Evidence in Canada (2018, 5th ed.) at p. 490, “reduced to its essentials, the voluntariness inquiry focuses predominantly, though not exclusively, on the ability of the accused to make a meaningful choice whether or not to confess”.

[19] Ultimately, the burden of proof rests on the Crown to prove beyond a reasonable doubt that the impugned statements were voluntarily made: Oickle at para. 30.

[20] The accused argues that the accused's statements were involuntary on two grounds. First, the police induced the accused to make inculpatory statements through the use of improper leading questions, which were framed to elicit answers that implied the guilt of the accused. Second, the accused did not have an operating mind during the interview due to his intoxication.

(1) Leading Questions

Inducements

[21] Based on the common law rule set out in Ibrahim v. R., [1914] A.C. 599, and restated in Oickle, for a statement to be voluntary, it cannot have been obtained by “hope of advantage” or “fear of prejudice” held out by a person in authority: see Oickle at para. 24. Put another way, the statement cannot have been improperly induced through threats or promises. In the Supreme Court's view, the most important consideration is whether a quid pro quo offer is made as part of the inducement: Oickle, para. 57. Inducements become improper where, standing alone or in combination with other factors, they are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne: Oickle at para. 57.

[22] The defence argues that a number of statements made by the police officer induced the accused to respond in manner that may tend to imply that the accused knew he hit a pedestrian.

[23] These statements include Detective Parson's statement at the outset of the interview that there was a victim that had sustained serious injuries. In regard to this statement I accept the evidence of Detective Parsons that he did not indicate the victim was a pedestrian. On the contrary, it was the accused’s answer at line 195 of the statement, outlined above, that he knew there was somebody on the road, which first introduced the notion that the victim was not only a pedestrian but that the accused knew he hit a pedestrian. However, in response to the question of where the accident happened, the accused responded at line 230 as follows:

PARSONS, Officer: And, and so you said, uh, it was at the intersection of Sentinel? PACK, Mike: Yeah. The light was green for me so as I was coming across it and the next thing I just see an object, huh. I didn't really figure it was a person [indecipherable]. I couldn't understand how - somebody doing at that time there so - and then I was through already. (emphasis added)

[24] There were a number of subsequent questions posed to the accused which were framed in a manner that the accused had hit a pedestrian.

[25] At lines 276 to 315 the following exchange occurred:

PARSONS, Officer: All right. So this pedestrian, um, where, was he? Where was he coming from? PACK, Mike: He's coming the - I- he – I assume - 'cause I did not see him at, at at all. I saw the light was green and I proceeded. The next thing I know I just saw a shade or an object moving this way and the next thing he's on the car so ... PARSONS, Officer: Okay. So when you say ''this way'', from your left to your right? PACK, Mike: Yes. PARSONS, Officer: Okay. Um, was - wh-, where was he in relation to the intersection? PACK, Mike: So [clears throat] - okay, so I'm in this lane. The intersection is now - I passed the first (1st) one-- PARSONS, Officer: Okay. PACK, Mike: --so it's now the second (2nd) one. PARSONS, Officer: Okay. PACK, Mike: So I would probably say he came behind out of the, the, the light or the - on the isl-, the, the island there. PARSONS, Officer: Okay. PACK, Mike: So that’s why I didn’t see him. Was if… PARSONS, Officer: Wa-. Was he in the crosswalk? PACK, Mike: No. PARSONS, Officer: Okay. PACK, Mike: He’s just on the other side of the crosswalk.

[26] At lines 424 to 473 the following exchange occurred:

PARSONS, Officer: Okay. So show me, uh, put a ‘P’ and a circle around it where the pedestrian was when your car hit him. PACK, Mike: I would probably think around here. PARSONS, Officer: Okay, so just put a 'P' there just so... PACK, Mike: Yeah. PARSONS, Officer: All right. And, and, and draw which lane your car was in. Maybe just draw a car or... PACK, Mike: Uh-hnh. Okay, so my car is here. PARSONS, Officer: Okay. And then maybe just put 'me' in the car and that way we know it's your car. And then put an arrow which way you're going. All right. And so you think the pedestrian was crossing from the south side to the north side. PACK, Mike: Yes. PARSONS, Officer: All right. Okay. So that, that helps a little bit. Um, and you've told me you had a green light so that would mean the pedestrian didn't - wasn't crossing properly. Is, is that right? PACK, Mike: Yes. PARSONS, Officer: Okay. Where was the pedestrian the very first (1st) moment you saw him? Where was he? PACK, Mike: Uh, just on the island ‘cause this is, like, an island here-- PARSONS, Officer: Right. PACK, Mike: --and then… PARSONS, Officer: So the island in the centre of the road? PACK, Mike: Yeah. PARSONS, Officer: Okay. PACK, Mike: So I, I saw him probably for, like, two (2), three (3) seconds. Not really heading - I didn't, I could not do anything. I could not break, I could not swerve. So just - I did not see him this side so I just saw him just, like, stepping off the island — (emphasis added)

[27] At lines 543 to 556 the following exchange occurred:

PARSONS, Officer: So af-, uh, okay, well let's, listen, we'll get to that after. So when your car hit him what happened to the pedestrian? PACK, Mike: I have no idea. PARSONS, Officer: Was he thrown in the air? PACK, Mike: I – I don't know I think – ‘cause I didn’t, I only saw him, the movement and then I was already past. PARSONS, Officer: Okay. PACK, Mike: So I didn't really look in the rear view and I don't know why I didn't stand. I, I was thinking I should stand but I just panicked and just drove and left the car somewhere and I just been walking around all night thinking that - thought I was - I ended his life.

[28] Finally at lines 614-623 the following exchange occurred:

PARSONS, Officer: Um, okay, w-, why didn’t you stop? What was the reason you didn’t stop. What happened? PACK, Mike: I explained. I don’t know. I was, I was heading home. I panicked and I, I was just, like, driving, thinking everything is normal. I drive there everv day. I didn’t assume that somebody can be there and as soon as I hit them I just, like, oh, I just drove off and went to leave the car in the road and just started walking.

[29] Courts have recognized that leading questions may qualify as improper inducements under certain conditions, such as where a quid pro quo may be inferred. For instance, in R. v. Klaus, 2017 ABQB 689, 71 Alta. L.R. (6th) 132, the police posed a number of leading questions to the accused while delaying the accused's access to a washroom despite several requests. Macklin J. observed at para. 32 that the accused "may have concluded from the delay that access to a washroom was contingent on 'giving something' to the interviewers or agreeing to their leading questions". In Macklin J.'s view, this raised a reasonable doubt as to whether his will was overborne.

[30] Similarly, in R. v. Billy, [2010] O.J. No. 6189, Pomerance J. ruled that the videotaped police interview of a Crown witness was inadmissible under the principled hearsay exception. In support of her ruling, she noted in that the witness, who made numerous requests to leave the interview, was subject to a number of suggestive questions by the police. When considered in context, Pomerance J. suggested that the elicited statement was "marred by an implicit quid pro quo" that the witness would only be released if she adopted certain propositions put to her by the police (para. 59). Although Pomerance J. was applying a different legal standard (namely, the threshold reliability test for hearsay statements), her observations are nonetheless useful when assessing whether a statement to a person in authority was voluntary.

[31] In my view, this case is distinguishable from the circumstances of Klaus and Billy. In both of those cases, the leading questions posed by police were paired with varying degrees of oppressive circumstances. In Klaus, the accused was deprived access to a washroom for three hours and 44 minutes, despite several requests (para. 32). In Billy, although the witness expressed her desire to leave on 25 occasions, the police did not allow her to leave and did not discontinue their questioning (para. 55). In the case at bar, there is no similar indicia of oppressive circumstances during the police interview which would give rise to an implicit quid pro quo and suggest that the accused's will has been overborne.

Police Trickery

[32] In Oickle, the court indicates that police trickery may be considered when determining if a confession was voluntary (para. 65). According to Lederman et. al., supra, there are two facets to this inquiry (p. 510). First, a court may exclude a confession where police trickery is so appalling as to shock the community (Oickle, para. 66). Second, police deception falling below the threshold of the community shock test remains a relevant factor in the overall voluntariness analysis (Lederman et. al., p. 513).

[33] In my view, the use of leading questions during the interrogation of a suspect, without more, would be insufficient to "shock the community". Further, even on a more relaxed standard, I find it difficult to see how the questions posed by Detective Parsons deprive the accused of his ability to make a "meaningful choice" in providing his statements. In Oickle, the Supreme Court found that the police's manner of interrogation, "while persistent and often accusatorial, was never hostile, aggressive, or intimidating", and did not render the accused's statement involuntary (para. 2). Indeed, at para. 15 of Oickle, the Court notes as follows:

Vigorous and skillful questioning, misstatements of fact by the police, and appeals to the conscience of the accused do not necessarily make a resulting statement inadmissible.

[34] Further, as stated in R. v. Precourt (1976), 18 O.R. (2d) 714 (C.A.), at p.721 (and cited in Oickle at para. 33):

Although improper police questioning may in some circumstances infringe the governing [confession] rule, it is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminal investigation…

[35] In my view the questioning by Detective Parsons was entirely proper. At the commencement of the interview Detective Parsons outlined the injuries suffered by the victim, but did not indicate whether the victim was a cyclist, a passenger in a car, or a pedestrian. It was the accused who stated, in response to an open ended question as to what happened, who first identified that the victim was a pedestrian when he stated “Next thing I know there’s somebody on the road.”

[36] Detective Parsons was entitled to infer from this statement of the accused in the context of his entire answer that the accused was referring to hitting “somebody” who, on a literal and logical interpretation of the phrase “somebody on the road”, was also a pedestrian.

[37] It was only after the accused’s statement that the accused knew he hit somebody on the road that the officer followed up with questions that presumed the accused saw and hit a pedestrian. Although the accused later stated that he only observed “a shade” or “movement” or “an object” at the time of the accident, this does not displace the fact that the accused was the first to suggest that the victim was a pedestrian and that he knew that he hit a pedestrian.

[38] By contrast, in Billy, the answers prompted by the police did not follow from the witness's prior statements. As Pomerance J. notes at para. 53,

[the crux of the impugned statement] did not originate with [the witness]. This notion was introduced and amplified by the police in their questions. It was only after several repeated suggestions that [the witness] shifted her account and said that she had been threatened [by the accused].

[39] In my view, Detective Parsons was entitled to pursue his line of questioning, notwithstanding the modification made by the accused to his earlier answer that he knew he hit a pedestrian.

[40] In the circumstances of this case, while the burden is on the Crown to establish voluntariness beyond a reasonable doubt, there is no positive evidence from the accused, who did not testify on the voir dire, that the reason he stated he had hit a pedestrian was because of the prompting or leading questions of the police officer, as his counsel argues. Nor was there any evidence from the accused on the voir dire to explain why on the one hand he stated he knew he hit a pedestrian and on the other hand he stated he was uncertain as to what he hit.

[41] The accused suggests that I infer from the apparent inconsistency that the inconsistency is due to prompting by the police. However, the inconsistency, in the absence of any explanation, may be due simply because the accused is untruthful or because he learned that he hit somebody from a source other than Detective Parsons. Moreover, the inconsistency may be more apparent than real in that given the accused’s initial position that he knew that he hit a pedestrian, his subsequent position that he saw only a movement, a shade or an object at the time of impact, is not necessarily inconsistent with his having “a good reason to believe” that he hit a pedestrian in light of all of the other circumstances known to him at the time of the collision.

[42] The probative value and the reliability of the statement will ultimately be determined by the trier of fact. However, at present, in my view, the prejudicial effect does not outweigh the probative value of the statement.

[43] In any event, in my view, Detective Parsons was entitled to attempt to resolve any inconsistency between the competing narratives in the course of the interview. The manner of questioning is well within the parameters accepted in Oickle, supra, at paragraphs 2 and 15.

[44] I am satisfied beyond a reasonable doubt that the statement of the accused to Detective Parsons was voluntary and that the will of the accused was not overborne by the nature of the questions asked of the accused by the police.

Intoxication

[45] During the course of the interview Detective Parsons told the accused that he could smell alcohol on his breath and that he should not be able to smell alcohol on his breath at 2:00 pm in the afternoon. The accused explained that after he parked the car he went to a bar and had four drinks before 7:00 in the morning before turning himself in to the police.

[46] The defence submits that the fact that the accused had been drinking raises a concern that he was not equipped to resist the officers’ suggestions.

[47] On the issue of impairment or intoxication I accept the evidence of Detective Parsons that apart from the odour of alcohol on the breath of the accused he observed no other indicia of impairment, such as slurring of speech, difficulties of balance or mobility or bloodshot eyes. I accept the evidence of Detective Parsons, who had experience with impaired drivers as a breathalizer operator, that the accused was not impaired and that he would have delayed the interview if he thought that the accused was impaired.

[48] My own observations of the accused during his video-taped interview confirm no evident signs of impairment. Indeed, I observed that the accused, by his demeanour, and by the manner in which he answered questions appeared to be engaged in the process, understood the questions and answered them in a relatively cogent manner. Finally, the accused did not testify on the voir dire and, accordingly, there is no positive evidence that he was not equipped to resist the officer’s suggestions, as his counsel seeks to have the court infer merely on the basis that the odour of alcohol was detected on his breath.

[49] In R. v. Whittle, [1994] S.C.J. No. 69 the Supreme Court of Canada outlined the operating mind test pertinent to assessing whether the statement of the accused is voluntary as follows at para. 45:

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

[50] This test constitutes a relatively low bar. I am satisfied beyond a reasonable doubt that the accused had an operating mind during the interview with Detective Parsons and that his ability to understand the questions asked by the officer and to articulate his answers in response was not compromised by the ingestion of alcohol. I accept the opinion of the officer as to his sobriety.

Conclusion

[51] In conclusion, I am satisfied beyond a reasonable doubt that the will of the accused was not overborne by the questions of the officer presuming that the accused had hit a pedestrian for the reasons which I have outlined.

[52] I am satisfied beyond a reasonable doubt that the accused had an operating mind during the course of the interview and that his prior ingestion of alcohol did not render him unable to resist the suggestions made by the police officer.

[53] I am satisfied beyond a reasonable doubt that the will of the accused was not overborne either by the manner of questioning or by the police officer or by the ingestion of alcohol prior to the interview or by a combination of both. In my view, the statement of the accused was voluntary and is admissible in evidence.

THEN J.

RELEASED: April 17, 2019