Her Majesty the Queen v. Benjamin Weiland
Court File No.: CR-16-02297 Date: 2019-05-24 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: Benjamin Weiland, Defendant
Counsel: Michelle Rumble, for the Crown Boris Bytensky, for the Defendant
Heard: March 19, 20 and 21, 2019
Ruling on Voluntariness Application and Section 10(a)/24(2) of the Charter
J. Di Luca J.:
[1] This Ruling addresses a voluntariness application brought by the Crown in relation to a post-arrest videotaped statement given by Mr. Weiland. This Ruling also addresses the defence motion to exclude the statement under sections 10(a) and 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”).
[2] For the reasons that follow, I am satisfied that the Crown has proven voluntariness beyond a reasonable doubt. I am not satisfied that the defence has established a violation of section 10(a) of the Charter on a balance of probabilities.
[3] The statement is admissible.
Background to Investigation
[4] Mr. Weiland is charged with three offences stemming from a police investigation known as “Project Raphael”. The offences relate to a series of text messages he exchanged with an undercover police officer on March 25 and 26, 2016. The specific offences are:
a. s. 172.1(1)(a) – Communication with a person believed to be under 18 for the purpose of facilitating the commission of an offence under s. 286.1(2) [juvenile prostitution].
b. s. 172.1(1)(b) – Communication with a person believed to be under 16 for the purpose of facilitating the commission of an offence under section 151 [sexual interference].
c. s. 286.1(2) – Communicating with a person for the purpose of obtaining sexual services of a person under 18.
[5] Project Raphael was a police investigation into prostitution services made available on a website called Backpages.com. The phase of the investigation which resulted in this case took place on a number of days between March and April of 2016. As part of this phase of the investigation, police placed a number of ads on the Backpages website offering the services of an 18 year old escort. Sexually suggestive language and photographs were included in the ads. Potential customers were instructed to reply by way of text to a particular phone number.
[6] Once potential customers replied to the ad with a text message, a police officer posing as the 18 year old escort from the ad would engage them in a discussion about sexual services. At some point in the discussion, the officer would “reveal” “her” true age as 15. If the suspect continued the discussion he would be directed to a certain hotel room, and upon arrival at the hotel room he would be greeted by a number of police officers and not the anticipated escort.
[7] Mr. Weiland first responded to one of the police placed Backpage ads on March 14, 2016, though for some reason he did not receive a reply from police officers at that time. On March 25, 2016, Mr. Weiland again texted the phone number associated with the ad. A text discussion ensued and during the course of the discussion, Mr. Weiland was advised that the escort was 15 years of age. The discussion continued and an agreement was reached to pay $80 for a half hour of normal sex. Mr. Weiland agreed to bring a condom.
[8] Mr. Weiland was directed to attend room 404 of the Homewood Suites Hotel in Markham. On March 26, 2016 at approximately 12:23 a.m., Mr. Weiland knocked on the door to room 404 of the hotel. He had $140 in cash in his pocket as well as condoms. He was carrying his cellphone in his hand. His arrival was within minutes of the last text message with the undercover police officer.
[9] A number of police officers were waiting inside the room. As soon as they opened the door, Mr. Weiland was quickly taken into the hotel room, taken to the ground and placed under arrest. The arresting officer, Cst. Reickert, indicated that he told Mr. Weiland words to the effect “Police, you are under arrest” while initially taking hold of Mr. Weiland. He did not advise Mr. Weiland of the charges or of his rights to counsel at this time.
[10] It took a few minutes to effect the arrest, place Mr. Weiland in handcuffs and conduct a search incident to arrest. At approximately 12:28 a.m., some five minutes after he was arrested, Mr. Weiland was advised of the reasons for his arrest and read his rights to counsel and caution by another officer, Cst. Merola.
[11] In order to administer the rights to counsel and caution, Cst. Merola used his notebook and a pre-printed form that had been developed for arrests in Project Raphael. A number of the officers present at the time of the arrest were familiar with the use of this form, as they had encountered similar forms on other Project Raphael investigations.
[12] The form used in this case was filled out in part by Cst. Merola and in part by others. The form contains pre-printed reasons for arrest, which list the following offences under the heading “Reason for Arrest”:
172.1(1)(a) CC Luring a Child Under 18 for Prostitution 172.1(1)(b) CC Luring to Invite Sexual Touching 286.1(2) CC Purchasing Sex from a Person Under 18 Years of Age
[13] The form also contains a pre-printed “Rights to Counsel” and “Caution to Charged Person” portion. In the blank spot where the charges are to be listed for these portions of the form, the words “above named offences” is handwritten. The reference appears to be to the charges listed under “Reason for Arrest”.
[14] In terms of advising Mr. Weiland of the charges, Cst. Merola indicated that he read the charges listed on the form under the heading “Reason for Arrest.” He indicated that he did not choose the wording himself. Instead, the wording was chosen by others when the forms were prepared. It was his understanding that the wording was intended to be used verbatim, and he could not recall using any other language when advising Mr. Weiland of the charges. Cst. Reickert could not recall if Cst. Merola read out the wording of the charges as set out on the form. Cst. Bartholomew also could not recall details of what was said to Mr. Weiland during the administration of the rights to counsel.
[15] In response to the reading of his rights to counsel, Mr. Weiland replied that he understood his rights and wanted to speak to counsel. Despite Mr. Weiland’s request to speak with counsel, Cst. Merola asked him a number of questions ostensibly aimed at filling out the biographical details on the arrest from. While some of the questions related to purely biographical details related to issues such as identification and potential release, others strayed into territory that perhaps should not have been discussed prior to contact with counsel.
[16] In terms of the initial five minute delay in providing the rights to counsel, Cst. Merola indicated that there was a bit of an initial struggle and it took some time to get Mr. Weiland settled. This evidence was in contrast to the evidence of two other officers present for the arrest, who indicated that Mr. Weiland presented no difficulties during the arrest.
[17] Approximately 22 minutes after his arrest, Mr. Weiland was taken from the hotel to the police station for booking. None of the three officers who testified about the initial arrest noted any signs of impairment on Mr. Weiland, and all indicated that if they had observed clear signs of impairment they would have noted them. Interestingly, the arrest form used for Project Raphael contains no spot on which an accused’s mental or physical condition is to be noted.
[18] All three officers who testified about the arrest indicated that Mr. Weiland appeared to understand what was happening and indicated so when asked.
The Booking and Interview
[19] Staff Sergeant Staley was the booking sergeant when Mr. Weiland was paraded at the police station at approximately 1:53 a.m. on the morning of March 26, 2016. According to her evidence in chief, when Mr. Weiland was brought into the station she advised him of the charges he was facing, in particular, two counts of “luring” and one count of “purchasing sex from a person under the age of 18”. She asked Mr. Weiland whether he understood and whether he needed further elaboration. He indicated that he understood and, in her view, he appeared to understand. She further indicated that if he did not appear to understand she would have offered further explanation about the nature of the charges. She saw no need to do so in this case.
[20] Staff Sergeant Staley also asked whether Mr. Weiland had any injuries and whether he was on medications, drugs and/or alcohol. Mr. Weiland indicated that was not taking medication but had been seeing a psychiatrist for depression. According to her, Mr. Weiland also indicated that he had not taken any alcohol or drugs. She was challenged on her particular recollection that Mr. Weiland indicated he had not consumed any alcohol, and she maintained that this was his response. She denied that her notes, perhaps, reflected her observations of Mr. Weiland’s condition and not a specific question asked of Mr. Weiland.
[21] As a result of her discussion with Mr. Weiland, Staff Sergeant Staley contacted Mr. Weiland’s father to advise him of the charges and to inquire about whether he knew of counsel of choice for his son. Mr. Weiland Sr. indicated that he could not afford a lawyer.
[22] In cross-examination, Staff Sergeant Staley was asked about the language she used to convey the nature of the charges. She confirmed that the language written in her memo book was the same as the language used on the arrest form. She indicated that it was possible she was using the arrest form when she advised Mr. Weiland of the charges. Staff Sergeant Staley was also asked about some entries she made on a “versadex” computer system. In particular, she was asked about an entry suggesting that she asked Mr. Weiland if he had been advised of his charges. She explained that she had in fact asked this question and received an affirmative response from Mr. Weiland. In re-examination, she indicated that in addition to this exchange, she also advised Mr. Weiland of the charges he was facing as she wanted him to hear the charges straight from her. She indicated that she wanted to make sure he knew what he was charged with.
[23] Cst. Turner was the officer who conducted the interview of Mr. Weiland. Her first involvement with the case came at 2:09 a.m., when she contacted duty counsel for Mr. Weiland while he was in the booking room at the police station. Cst. Turner dialed the 1-800 number for duty counsel and left a message requesting a call back. In her message she provided some basic information, including the charges Mr. Weiland was facing. She described the charges as “luring a person under the age of 18 for prostitution, luring to invitation to sexual touching, and purchasing sex from a person under 18”.
[24] She received a call back from duty counsel at 2:15 a.m., and at 2:20 a.m. Mr. Weiland was placed in private contact with duty counsel. The call with duty counsel was complete at 2:35 a.m. and when Mr. Weiland exited the room, he made no complaints about his consultation. Cst. Turner was not watching Mr. Weiland while he was on the call with duty counsel, and as a result she could not indicate precisely how long he was actually on the phone.
[25] Mr. Weiland was then taken into an interview room and placed on camera. At the outset of the interview, Cst. Turner reviewed a form entitled “Statement of the Accused”. The form contained a list of the charges, as well as a further recitation of the rights to counsel and caution. Mr. Weiland acknowledged that he understood the information and the form and he signed the acknowledgment. He also signed a form acknowledging that the statement was being video recorded.
[26] Cst. Turner observed no indicia of impairment during her interactions with Mr. Weiland. She acknowledged that Mr. Weiland told her he had been drinking, and she further acknowledged that she had no reason to disbelieve him. While she maintained that her belief was that Mr. Weiland was not under the influence of alcohol, she did indicate that if the plan had been to release him from the station, she likely would have tried to arrange for someone to pick him up out of an abundance of caution.
Additional Agreed Facts
[27] At the outset of the hearing, counsel filed agreed facts which were marked as Exhibit 4. The agreed statement of facts details the interactions of a number of officers with Mr. Weiland on the evening of his arrest. Of importance to the issues on the voluntariness voir dire, the agreed statement of facts indicates that none of the officers mentioned made any threat, promise or inducement to Mr. Weiland, nor did they employ any police trickery when dealing with him. There were no circumstances of oppression. Lastly, none of the officers mentioned in the agreed statement of facts either noted or recalled any signs of impairment or intoxication during their dealings with Mr. Weiland.
[28] During the hearing, counsel indicated that they had also agreed that Mr. Weiland’s father had been with Mr. Weiland earlier in the evening on the date of his arrest. They went out for dinner and Mr. Weiland consumed more than one beer while they were together.
Mr. Weiland’s Testimony
[29] At the time of his arrest, Mr. Weiland was 26 years of age. He had no criminal record. In the months prior to his arrest, Mr. Weiland was going through difficult times. He lost his mother to suicide and he was suffering from depression. He was also abusing alcohol. On the evening in question, Mr. Weiland indicates that he consumed more than six drinks. While he had built up a tolerance to alcohol, he felt intoxicated.
[30] In terms of his initial arrest in the hotel room, Mr. Weiland agreed that the officers read him the charges, though he was in a state of confusion and intoxication at the time. He could not recall what charges were read to him. Similarly, in relation to Staff Sergeant Staley, Mr. Weiland could not recall her reading out the charges to him. He could recall few details of the booking procedure, though he indicated that he would not have denied drinking alcohol. He explained that he was in shock at the time and did not really pay attention when the charges were being read to him.
[31] When asked whether there was another time when the charges were read to him, Mr. Weiland initially said no, but then acknowledged that the charges were read to him at the beginning of the videotaped statement.
[32] In terms of his understanding of the charges, Mr. Weiland explained that at no time did he understand what he was being charged with. He explained that the reference to “luring” suggested in his mind a reference to fishing or using a lure to trick someone to do something. In his view, the description of the charges made it sound to him like he was a pimp trying to lure a person into providing sexual services. In relation to the charge of juvenile prostitution, Mr. Weiland explained that the description of the charge made it sound like he had actually paid for sex with an underage prostitute. In support of this understanding, Mr. Weiland made reference to a portion of his statement wherein he was asked by Cst. Turner what he would have done if a 15 year old girl had answered the door at the hotel. He replied that the bottom line was that there was no 15 year old and no exchange of money. Mr. Weiland also explained that he believed he was under arrest for the offence of “general prostitution”.
[33] In cross-examination, Mr. Weiland was asked a number of questions regarding his specific recollection of the events following his arrest. He agreed that it was possible that Cst. Merola read out the charges as listed on the arrest form, though he could not recall for sure. He agreed that it was possible that Cst. Merola asked him if he understood. He did not deny indicating that he understood the charges. He agreed that he never asked for any explanation of the charges.
[34] When challenged on his evidence, Mr. Weiland simply and repeatedly maintained that he did not understand the charges. He also maintained that he believed he was under arrest for “general prostitution” despite the language used by the various officers. He maintained that he did not understand what was meant by “luring”, and he did not appreciate that he was under arrest for offences allegedly involving someone under the age of 18.
The Issues
[35] There are two issues in this voir dire; voluntariness and section 10(a)/24(2) of the Charter. While the arguments advanced by counsel overlap, I am mindful that the Crown bears the onus of proving the voluntariness of Mr. Weiland’s statement beyond a reasonable doubt, and the defence has the onus of establishing a violation of Mr. Weiland’s Charter rights on a balance of probabilities.
[36] In this regard, I also note that Mr. Weiland testified on this voir dire. In relation to the voluntariness issue, the assessment of his evidence is governed by the W.D. analysis. I do not need to believe his evidence in order to find that the statement is involuntary. It is sufficient if I am left with a reasonable doubt about voluntariness on the basis of his testimony. Even if I completely reject his testimony, I must nonetheless examine the balance of the evidence that I do accept to determine whether the Crown has proven voluntariness beyond a reasonable doubt.
Section 10(a) of the Charter
[37] Section 10(a) of the Charter imposes an informational obligation on police officers who place persons under arrest or detention. The duty requires that detainees be promptly advised of the reasons for their detention. The purpose is to ensure that detainees generally understand the jeopardy they are facing so that they can make an informed choice about submitting to arrest or detention, and exercising their right to counsel as guaranteed by section 10(b) of the Charter, see: R. v. Evans, [1991] 1 S.C.R. 869 at p. 886-7, R. v. Smith, [1991] 1 S.C.R. 714 at p. 728, and R. v. Latimer, [1997] 1 S.C.R. 217.
[38] The purpose of section 10(a) is also linked to assisting detained persons in deciding whether to say anything in response to the charge; see R. v. Evans, supra, at para. 2, per Sopinka J., concurring in the result. In this regard, the section 10(a) right compliments the section 10(b) rights, which seek to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it: see R. v. Nguyen, 2008 ONCA 49 at para. 20.
[39] In assessing compliance with section 10(a), it is clear that the police do not need to employ specific or formalistic language in conveying the reason for the arrest or detention; see R. v. Mann, 2004 SCC 52 at para. 21 and R. v. Mueller, 2018 ONSC 2734 at para. 18. It is sufficient if the police provide a detainee with a general description of the reason for the arrest or detention. The police also do not need to provide a full explanation of the charges the accused is facing, nor do they need to describe or explain the elements of the offence: see R. v. W.L., 2016 ONSC 5141 at paras. 56-59. In R. v. Smith, supra, at paras. 27-28, McLachlin J. (as she then was), writing for the Court, addressed the scope of the section 10(a) obligation within the context of a waiver of section 10(b) rights. She explained:
It has never been suggested, however, that full information is required for a valid waiver. Indeed, if this were the case, waivers would seldom be valid, since the police typically do not know the whole story when the accused is arrested. Nor is the failure of the police to precisely identify the charge faced in the words of the Criminal Code necessarily fatal. In the initial stages of an investigation the police themselves may not know the precise offence with which the accused will be charged. Moreover, the words of the Code may be less helpful to a lay person than the more common parlance in communicating the extent of the jeopardy. Finally, the degree of awareness which the accused may be reasonably assumed to possess in all the circumstances may play a role in determining whether what the police said was sufficient to bring home to him the extent of his jeopardy and the consequences of declining his right to counsel.
The question reduces to this: in this case was the accused possessed of sufficient information to make his waiver of counsel valid? To my mind, to establish a valid waiver of the right to counsel the trial judge must be satisfied that in all the circumstances revealed by the evidence the accused generally understood the sort of jeopardy he faced when he or she made the decision to dispense with counsel. The accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told.
[40] In R. v. Evans, supra, McLachlin J. provided the following test for assessing compliance with section 10(a) of the Charter:
When considering whether there has been a breach of s. 10 ( a ) of the Charter , it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10 ( b ).
[41] While the test is often described as objective, the accused’s subjective understanding of the information conveyed often provides an insight into the sufficiency of that information: see R. v. Mueller, supra, at paras. 19 and 20.
[42] I turn next to assessing the evidence on this issue, and in this regard I make the following findings. I am satisfied that Cst. Merola advised Mr. Weiland of his reasons for arrest using the language contained on the pre-printed arrest form. This information was accompanied by the standard right to counsel and caution taken from the back of the officer’s memo book.
[43] I am also satisfied that Mr. Weiland told Cst. Merola that he understood the right to counsel and caution at that time, though I accept that he was in shock and possibly confused following his initial arrest. Mr. Weiland has a limited recollection of what was said to him in the minutes following his arrest. This is not surprising, as the evidence suggests that Mr. Weiland was in some degree of shock or surprise following his arrest. He obviously had not anticipated that he would be met by a number of police officers when he knocked on the hotel room door. He was physically taken to the ground and handcuffed.
[44] I am further satisfied that the reasons for arrest were provided on two subsequent occasions once Mr. Weiland was brought back to the station. First, I accept that Staff Sergeant Staley advised Mr. Weiland of the nature of the charges while he was being paraded, and that he indicated that he understood the charges. Mr. Weiland had no real recollection capable of contradicting this evidence. While not germane to the issues I need to decide, I accept that Mr. Weiland would have had no reason to deny alcohol consumption when he spoke with Staff Sergeant Staley. Indeed, minutes later he told Cst. Turner about his alcohol consumption. In this regard, I find that Staff Sergeant Staley’s recollection was likely incorrect.
[45] Second, the video of the statement reveals that Mr. Weiland was again advised of the charges at the outset of the interview when he was provided with a further caution and rights to counsel. At that time, he not only verbally indicated that he understood what he was being told but he also signed a form indicating the same.
[46] I also accept that Cst. Turner advised duty counsel in a voicemail message of the three charges, using language similar to the language stated in the arrest form. Mr. Weiland consulted with duty counsel in private before making his statement. He raised no issue about the advice he received from counsel either at the time or in his evidence before me. While I am not to speculate as to what advice he may or may not have been given, I do find that reasons for his arrest were conveyed to duty counsel prior to his consultation.
[47] I turn next to assessing whether the use of the language on the form, which was repeated verbally on more than one occasion, satisfies the requirements of section 10(a) of the Charter. In this regard, the defence raises two central concerns. The first concern relates to the use of the word “luring” in describing the first two offences that Mr. Weiland was facing, when the essence of the offences is electronic communication. The second concern raised by the defence relates to the fact that in describing the third offence, the police made no mention that the offence was premised on “communicating for the purpose” of committing the offence rather than a completed act of juvenile prostitution. As such, the defence argues that Mr. Weiland was misled as to the nature of the offence he was under arrest for.
[48] Starting with the first concern, the language used to describe the first two charges on the arrest form includes the word “luring.” The defence argues that the use of the word “luring” is misleading. The defence notes that the offence provision in question makes it an offence to use electronic communication devices to communicate with a person under a certain age for the purpose of facilitating the commission of a further offence, typically a sexual offence. The word “luring” does not appear anywhere in the text of section 172.1 or 172.2 of the Criminal Code. It does, however, appear as a marginal note and as a heading in the Criminal Code.
[49] The defence further argues that in common parlance, the concept of “luring” suggests an act of attraction or an attempt to draw or entice someone into doing something. Used in the context of the offences in question in this case, the defence argues that the use of the word “luring” would have reasonably conveyed to Mr. Weiland that he was being charged for trying to draw or “lure” a young person into acts of prostitution.
[50] Indeed, in Mr. Weiland’s own evidence he sought to draw an analogy between “fishing” and “luring”, and he explained that he was confused about the use of the word luring because it made it seem like he was being accused of being a pimp who was trying to “lure” persons into prostitution.
[51] In relation to the second concern, the defence argues that the language used on the arrest form suggested a completed act of juvenile prostitution rather than more accurately describing the offence as communicating for the purpose of engaging in juvenile prostitution. The defence argues that Mr. Weiland would have been misled into believing that he was under arrest for a completed act of juvenile prostitution, which is an offence he clearly did not commit.
[52] In the circumstances of this case, I find that the descriptions of the offences provided to Mr. Weiland are unobjectionable and do not amount to a violation of section 10(a) of the Charter. I reach this conclusion for the following reasons.
[53] First, I am satisfied that the description of the charges, which was conveyed repeatedly to Mr. Weiland, provided him with a sufficient indication of the nature of his jeopardy. I do not fault the officers for using the word “luring” in describing the first two offences. “Luring” is specifically used in the Criminal Code to describe the first two offences in question. While a marginal note or heading is not to be used in interpreting the wording of the section, I am not prepared to find that it is improper to refer to the offence using the heading or marginal note found in the Criminal Code for the purpose of complying with section 10(a) of the Charter.
[54] While I agree that “luring” has connotations that extend beyond the confines of the charges in question, I do not find that Mr. Weiland was misled as to the reasons for his arrest in the circumstances of this case. When viewed in context, Mr. Weiland would have been under no misapprehension as to the reason for his detention. The context includes the fact that he was engaged in the text messages that form the basis for his arrest moments before attending at the hotel room where he was arrested.
[55] It must be remembered that the police are not required to provide a precise legal description of the reason for the arrest or detention. Indeed, it is often the case that the precise nature of the charges remains unclear at the time of arrest. What must be conveyed to the detainee is the general nature of the reason for the detention. The language used here did that amply. Moreover, the language used here was sufficient to impress upon Mr. Weiland the need to consult with counsel, which he did as soon as he was provided an opportunity.
[56] Second, I do not accept Mr. Weiland’s testimony that he did not understand what his charges were. His testimony in this regard stands in contrast to the fact that he repeatedly told the officers that he understood the charges. While I accept that Mr. Weiland would have been shocked and perhaps confused at the time of his initial arrest, he had the charges described for him on two further occasions once back at the station. On those further occasions, he again re-iterated that he understood the charges.
[57] More problematically, Mr. Weiland’s evidence revealed a very limited recollection of the details of what actually transpired. Despite his very limited recollection, he was steadfast in stating that he simply did not understand the charges. When pressed on aspects of his recollection, he simply repeated that he did not understand the charges. My impression in listening to his evidence, was that he was intent on telling the court he did not understand the charges despite being unable to provide any details in terms of his recollection.
[58] Mr. Weiland was also steadfast in his belief that he was charged with “general prostitution” and not offences related to persons under the age of 18. This assertion is difficult to accept in view of the number of times that Mr. Weiland was advised of the charges, which included the phrase “person under the age of 18” repeatedly. The assertion is also contradicted by the nature of the discussion that Mr. Weiland has with Cst. Turner, as captured in the videotaped statement. This conversation makes it very clear that the central issue is the age of the person that Mr. Weiland was communicating with. Indeed, Mr. Weiland himself starts the discussion by explaining that the ad he responded to indicated that the escort was 18 years of age. He then immediately noted that when he texted the person “she” indicated “I’m underage”.
[59] On the whole, Mr. Weiland’s evidence ultimately had a rote quality to it that leaves me with both reliability and credibility concerns. I am unable to accept his assertions that he did not understand why he was placed under arrest.
[60] In terms of the concern with the description of the third offence, I do not find that the distinction between “purchasing sex from a person under the age of 18” and “communicating for the purpose of purchasing sex from a person under the age of 18” to be a distinction resulting in a section 10(a) violation. While I accept that there is a legal distinction between the two forms of the offence, I am not prepared to find that a section 10(a) violation arises when one description is used instead of the other. To so find would be tantamount to requiring the police to advise a detainee with specificity of the exact nature of the charge alleged.
[61] In any event, Mr. Weiland’s own evidence also presents a significant hurdle in this regard. I accept that when asked in the statement what he would have done if a 15 year old answered the door, Mr. Weiland answered words to the effect that the bottom line is that a 15 year old did not answer the door and no sex was purchased. Counsel’s argument is that this passage demonstrates that Mr. Weiland was misled about the nature of the offence he was facing. The difficulty with this argument, is that Mr. Weiland’s own evidence on the voir dire was to the effect that he believed he was charged with the offence of “general prostitution” and not prostitution relating to an under aged person. In his evidence, Mr. Weiland does not suggest that he was confused about the nature of the offence in terms of whether it was a completed act of prostitution, or merely communication for the purpose of prostitution.
[62] On the whole, I am not satisfied that Mr. Weiland’s rights under section 10(a) of the Charter were violated. As a result, I need not consider section 24(2).
Voluntariness
[63] In terms of voluntariness, the defence accepts that this is not a case where the police made a threat or promise, or offered an inducement that rendered the statement involuntary. The defence also accepts that there were no circumstances of oppression. Lastly, the defence also accepts that there is no issue that Mr. Weiland had an operating mind when he made the statement, despite being under the influence of alcohol and under some degree of personal distress.
[64] The concern raised is whether the descriptions of the offences provided to Mr. Weiland were misleading and incomplete, and resulted in Mr. Weiland effectively being deprived of the ability to make a meaningful choice about whether or not to make a statement; see R. v. Paternak (1995), 1995 ABCA 356, 101 C.C.C. (3d) 452 (Alta.C.A.) and R. v. Archer, 2014 ONCJ 521.
[65] In support of this argument, the defence relies essentially on the arguments canvassed above in relation to the section 10(a) Charter claim. The defence suggests that Mr. Weiland’s will was overborne in the sense that he decided to make a statement because he was provided with misleading information about the nature of the charges.
[66] I repeat that in assessing this claim, I am mindful that the onus of establishing voluntariness rests with the Crown beyond a reasonable doubt. In other words, if I have a reasonable doubt that Mr. Weiland’s statement was the result of his will being overborne in the manner suggested, I must find his statement involuntary.
[67] This issue is very narrow. There is nothing in the statement, and nothing in the conduct of the police officers prior to the taking of the statement that suggests any other concern with respect to voluntariness.
[68] In terms of Mr. Weiland’s evidence, as I have already indicated it raises both credibility and reliability concerns. Mr. Weiland revealed a limited recollection of the details of the events leading up to the taking of the statement. Despite being unable to recall specific details, he remained steadfast in his repeated assertion that he simply did not understand the charges he was facing. This assertion is contradicted by his comments to the police officers upon being advised of the charges and by the nature the answers he gave during the statement.
[69] On the whole, Mr. Weiland’s evidence does not leave me with a reasonable doubt about the possibility that he was misled by the description of the offences. While I accept that he perhaps did not have a complete understanding of the specific nature of the offences involved, I am not at all concerned that his will was overborne in the sense that his misunderstanding of the nature of the offences effectively deprived him of the ability to make a choice about whether or not to speak to Cst. Turner.
[70] In the end result, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Weiland’s statement is voluntary.
[71] The statement is admissible.
J. Di Luca J. Released: May 24, 2019