Court File and Parties

COURT FILE NO.: CR-16-0000325 DATE: 20190102 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JOHN MASSON MAXWELL WHITE Respondent/Accused

Counsel: Monica Heine, for the Crown Richard Litkowski and Jessica Zita, for the Respondent/Accused

HEARD: 27 August (in Napanee) and 28 August (in Kingston) 2018, followed by written submissions.

THESE PROCEEDINGS ARE SUBJECT TO AN ORDER MADE PURSUANT TO SECTION 517(1) OF THE CRIMINAL CODE THAT THE EVIDENCE TAKEN, THE INFORMATION GIVEN OR THE REPRESENTATIONS MADE AND THE REASONS, IF ANY, GIVEN OR TO BE GIVEN, SHALL NOT BE PUBLISHED IN ANY DOCUMENT, OR BROADCAST OR TRANSMITTED IN ANY WAY BEFORE SUCH TIME AS THE TRIAL IS ENDED, OR OTHER ORDER OF THIS COURT.

Graeme Mew J.

REASONS FOR DECISION

(Voluntariness Application)

[1] John White challenges the voluntariness of audio and video statements given by him to the Ontario Provincial Police shortly after he was arrested on a charge that he committed the murder of Gail White.

Facts

[2] The defence takes no issue with the statement of facts and an additional statement of facts prepared by the Crown in support of its application.

[3] Additional facts referred to in this ruling are drawn from the viva voce evidence of the police officers who participated in the arrest, transportation and investigation of Mr. White and their recorded interactions with Mr. White.

[4] On 16 April 2016, Gail White was shot in the head. The Crown alleges that she was shot by John White in the presence of her spouse, Don White, who is John White’s father, and John White’s girlfriend, Jessica White.

[5] At approximately 14:34 on 16 April, officers received a broadcast from the communications centre. Don White had advised that his wife had just been shot by his son. Officers were further advised that the son was seated at a picnic table, with his girlfriend, in close proximity to the home.

[6] Constable Andrew Gibbons, a police officer with the Napanee detachment of the Ontario Provincial Police, responded to the call and was first to arrive at the scene. He was joined shortly afterwards by Constable Brant, an officer with the Tyendinaga Police, and shortly after that by Constables Fransky and Shea of the OPP.

[7] As the officers arrived, Mr. White was seated with a female at a picnic table about fifteen metres from the front door of the residence. Constables Gibbons and Brant approached while Constables Fransky and Shea contained the area and provided cover. Constable Gibbons had a long gun drawn and loaded; Constable Brant a pistol. Constable Gibbons directed both parties to get down on the ground. They both complied. Constable Gibbons then covered Constable Brant as Constable Brant handcuffed the male first and then the female on the ground. Another officer, who had by that time arrived, Constable Yuile, then approached and took custody of Mr. White.

[8] Constable Yuile conducted a pat search on Mr. White and gave him his rights to counsel. Mr. White acknowledged that he understood. He indicated that he wanted to speak with a lawyer. Constable Yuile subsequently read Mr. White his caution which he indicated that he understood; he was then given his supplementary caution and again indicated that he understood. Mr. White was placed in a police vehicle. Constable Yuile subsequently had a brief conversation outside of the vehicle with another officer, Sergeant MacAllister, following which he reattended the vehicle and rearrested Mr. White for murder. He was reread his right to counsel and caution, all of which was understood. Mr. White indicated that he wished to speak with a lawyer at the detachment.

[9] Constable Yuile then transported Mr. White to the Napanee OPP detachment. The only conversation during the transport was in relation to an effort made by the officer to make Mr. White’s handcuffs more comfortable, as he indicated that they were pinching a nerve.

[10] Upon arrival at the detachment, Mr. White was booked in and his personal items were taken, logged and secured in a locker. During the booking procedure, Mr. White listed the medications he was on and told Constable Yuile his lawyer’s name.

[11] A call was then placed to the lawyer identified by Mr. White and a message left. Eight minutes later, the call was returned by a lawyer from the same office. Mr. White then had a twelve minute consultation with that lawyer.

[12] After being booked in and speaking to a lawyer, Mr. White was taken by the forensic identification unit for the taking of photographs and sampling for gunshot residue. The investigating officer, Detective Constable (now Detective Sergeant) David Peterson, was present during the interaction with the forensic identification unit and again cautioned Mr. White for murder and provided the secondary caution. Mr. White acknowledged that he had the right to remain silent and that he had not spoken to any other officer. He inquired whether a warrant had been obtained for the sampling for gunshot residue and was told in response that the search was being conducted incident to arrest.

[13] Mr. White was not formally interviewed on the day of his arrest. He was lodged in a cell at the Napanee OPP detachment. Constable Yuile testified that Mr. White was put in a white jumpsuit, without undergarments or socks, upon being brought to the police station. The jumpsuit was made out of Tybek, which D/S Sergeant Peterson described as a thin, synthetic material. Later, after complaints were made by Mr. White that he was cold, he was supplied with some extra blankets. However, it was not until the next morning that he was provided with more conventional orange prison garments which D/S Peterson made arrangements to have brought over from the Quinte Detention Centre. He was also provided with socks.

[14] Despite being aware that Mr. White was on a number of medications – Lyrica, Effexor, Vyvanse and Morphine – several hours elapsed between Mr. White’s arrival at the detachment and the medications being retrieved and made available to Mr. White. It was not until 23:30 on the day of his arrest that Mr. White was provided with his medications.

[15] Recordings of Mr. White’s interactions with the police while he was being transported from the scene of his arrest to the OPP detachment, being booked in, being tested for the presence of gunshot residue and interactions related to medication were recorded. The record also confirms that Mr. White spoke to a lawyer, Jason Easton, at 16:41 on 16 April and was provided with a privacy booth for that conversation, which was approximately twelve minutes in duration.

[16] After Mr. White had been provided with prison clothing, he was interviewed by D/S Peterson. The interview was video recorded. It commenced at 07:30 on 17 April, the morning after Mr. White’s arrest. Although, by that time, a determination had been made that Mr. White would be charged with first degree murder, this was not disclosed to Mr. White until after he had been interviewed. He, of course, did know that he had been arrested for “murder”.

[17] Although Mr. White, as the respondent on this voluntariness application, seeks the exclusion of all audio and video statements made by him, no serious issues were raised with respect to any of the interactions which Mr. White had with the police, or with the voluntariness of anything said by Mr. White during interactions with the police (which was very little), save for and except the interview with D/S Peterson on 17 April 2016.

[18] D/S Peterson’s interview of Mr. White lasted for a little over two hours. Mr. White then spoke, again, to a lawyer. Following that, he reasserted his right to silence (he also had to make a video-conference court appearance). D/S Peterson acknowledged that, at this point, he was not going to get any further information from Mr. White.

[19] As will be discussed at greater length below, on at least ten occasions during the interview with D/S Peterson, Mr. White asserted his right to silence, effectively making it clear that he wished to end the interview, return to his cell or speak to his lawyer.

[20] While D/S Peterson was able to engage Mr. White in some discussion – this was particularly so after D/S Peterson obtained, and permitted Mr. White to smoke, three cigarettes – Mr. White spent significant portions of his interview seated, but either staring at the table in the interview room with his right hand over his head or with the upper part of his body and head slumped on the table.

[21] As D/S Peterson acknowledged, and anyone viewing the video tape could readily observe, at several points during the interview, Mr. White was visibly upset. Many of his responses to D/S Peterson’s questions and statements consisted of shrugs or were inaudible.

[22] I reproduce below extracts from D/S Peterson’s cross-examination at the voir dire concerning Mr. White’s assertions of his right to silence taken from para. 19 of the respondent’s written submissions on the voluntariness application:

The instances that were put to Officer Peterson, with references to the transcript of the interview, are as follows:

(i) Page 11, line 405: WHITE: I’d rather just go back to my cell.

(ii) Page 15, line 550: WHITE: uh can I just go to my uh cell (u/i) (sniffs)

(iii) Page 16, line 610 and following: WHITE: uh (sniffs) (u/i) I’d like to practice my (sniffs) uh whatever it was (sniffs) D/C PETERSON: you’d like to what sorry WHITE: like to practice my thing that (u/i) right to be silent D/C PETERSON: okay yeah that’s fine WHITE: (sniffs)

(iv) Page 17, line 650 WHITE: I like to practice my…

(v) Page 21, line 810 WHITE: (sniffs) I can’t remember nothing that happened right now except practice my right for silence D/C PETERSON: okay WHITE: (sniffs)

(vi) Page 23, line 885 WHITE: (u/i) wondering why I’m still here (sniffs) D/C PETERSON: well because I’m asking you as a good person to explain to me help me understand what happened and then I’m giving you an opportunity to um to basically and this is I often what I do is I give people paper and if uh they can write an apology to apologize for what they’ve done and then I share that with the person who they’ve hurt

(vii) Page 26, line 1015 WHITE: please just stop blowing smoke up my ass send me back to my cell please or do what you’re going to do to me (sniffs)

(viii) Page 30, line 1180 WHITE: I don’t want to talk want to go back to my cell please (sniffs)

(ix) Page 51, line 2010 WHITE: is it possible to talk to a lawyer for a minute (sniffs)

(x) Page 58, line 2320 and following D/C PETERSON: okay okay and do you got some advice from him WHITE: yeah he said I wish to um I wish to what (u/i) mm practice my right to silence or whatever D/C PETERSON: okay okay so he you WHITE: he told me to shut up D/C PETERSON: okay so you okay and you’re taking his advice WHITE: yeah

Voluntariness: The Test

[23] In considering the voluntariness of a statement to the police by a suspect, a proper balance needs to be struck between the individual’s right to choose whether to speak to the police and society’s interest in uncovering the truth in crime investigations: R. v. Hebert, 1992 SCR 151; R. v. Singh, 2007 SCC 48, [2007] 3 SCR 405 at para. 45.

[24] The Crown bears the onus of establishing, beyond a reasonable doubt, that an accused person’s statement was voluntary. A voluntary statement is one which is made freely and voluntarily, in the sense that it was not obtained by fear of prejudice or hope of advantage held out or exercised by a person in authority, and when the statement is the utterance of an operating mind: R. v. Rothman, [1981] 1 SCR 640. However, the mere presence of doubt as to the exercise of a detainee’s free will in making a statement will be sufficient to render it inadmissible: R. v. Singh, per Charron J. at para. 38.

[25] A statement which is the result of “fear of prejudice or hope of advantage” will be ruled inadmissible. In determining whether there has been a threat, promise or inducement, whether expressed or implied, that causes a suspect to make a statement, the court must consider the cumulative impact of what is said and done on the accused person. R. v. Oickle, 2000 SCC 38, [2000] 2 SCR 3.

[26] In considering whether a suspect’s will is overborne, the court will consider whether a statement resulted from oppressive circumstances, which might include deprivation of food, clothing, water, sleep, access to medication or medical attention or excessively aggressive, intimidating questioning for a prolonged period of time: Oickle, paras. 58-61.

[27] An operating mind can be overborne by a police officer in order to reduce voluntariness to an extent sufficient to remove the statement from a trier of fact: R. v. Spencer, 2007 SCC 11, [2007] 1 SCR 500. Relevant considerations include:

a. Threats; b. Promises; c. Oppression; d. The requirement of an operating mind; and e. Police trickery.

Discussion and Analysis

[28] The Crown’s position is that there were no threats, promises, oppression or police trickery, and that Mr. Wright had a fully operating mind during the course of his interview with D/S Peterson and that no efforts were made by any police agent to override Mr. White’s operating mind.

[29] By contrast, according to Mr. White, any statements made by him to D/S Peterson - which are presumptively inadmissible pursuant to the common law voluntariness rule - should be excluded. Mr. White submits that his will was overborne by the cumulative effect of:

a. Persistent police questioning in the face of multiple and clear assertions of his right to remain silent; b. The use of a questioning method known as the “Reid Technique”; and c. His emotional state throughout large parts of the interrogation.

[30] On behalf of Mr. White, I was referred to several authorities in which, on multiple occasions, a detained or accused person had asserted his right to silence, only for police questioning to continue.

[31] In R. v. Hankey, during the course of a three hour police interview, an accused made more than sixty (60) statements indicating either his unwillingness to talk or his desire to speak to a lawyer. Despite this, the interviewing police officer persisted with his questioning. Panet J. found that the combination of persistent questioning, along with the accused’s assertions that he did not want to talk and wished to speak to a lawyer, led to adversely affect the operating mind of the accused, such that the videotaped statement was involuntary.

[32] In R. v. Davis, 2011 ONSC 5564, the accused was in the interview room for approximately six hours from 03:11 until 08:35 during the course of which he was actually questioned for approximately three hours. Van Rensburg J. found that the accused had expressed a desire not to speak to the officer more than 100 times during the course of the interview which, when considered in the context of all of the other circumstances, she found to be in violation of the accused’s right to remain silent.

[33] In R. v. Mohamad, 2014 ONSC 1348, statements made by an accused person after he had complained of being tired (after being interviewed for approximately three hours) and repeated several times that he did not wish to speak further and wish to invoke his right to remain silent were ruled to be inadmissible.

[34] Notwithstanding these authorities, it is clear from cases considering both the common law rule and the Charter of Rights, that although police persistence in continuing an interview, despite repeated assertions by a detained person that he or she wishes to remain silent, may raise a strong argument that any subsequently obtained statement was not the product of a free will to speak, such conduct will not necessarily result in the exclusion of the statement.

[35] The same applies to persistent questioning generally. See, for example, R. v. McKay, 2018 BCSC 1525, where the court rejected an argument that persistent questioning of an accused person despite his repeated assertions that his memory was not that good, did not result in a manipulation of the accused’s memory and, hence, was not oppressive.

[36] I note that Mr. White purported to invoke his right to silence far fewer times than his counterparts in cases such as Davis and Hankey. However, an assessment of voluntariness is not governed solely by a head count of how many times the assertion of an accused’s right to silence is made but ignored.

[37] Ultimately, as all of the authorities that have been cited make clear, each case will necessarily be fact-specific. As van Rensburg J. explained, in R. v. Davis, at para. 12:

In each case the question of voluntariness depends on a review of the particular facts: the conditions surrounding the interrogation, and what was said by the officer and by the accused, considered in the overall context, which includes the conduct of the parties, the reactions of the accused and the substance of what he said. The court must carefully consider whether in all the circumstances what was said by the accused was the product of improper questioning or oppressive circumstances, or resulted from the exercise of the free will of the accused. If there is any doubt on the question, the statement must be excluded.

[38] After each of Mr. White’s assertions that he wished to exercise his right to silence or go back to his cell, D/S Peterson continued on. For example, when Mr. White said “wondering why I’m still here”, which the officer acknowledged meant that Mr. White wondered why he was still in the interview room, the response of D/S Peterson was not “what do you mean here” or words to that effect, but rather, “well I’m asking you as a good person to explain to me …”.

[39] And a little later, when D/S Peterson is talking about the distinction between a good person who makes a bad mistake and a cold blooded killer without conscience and says to Mr. White “I don’t see that John. We all have our breaking points John”, Mr. White responds “Please stop blowing smoke up my ass and send me back to my cell or do whatever you’re going to do to me.” And yet, D/S Peterson persisted.

[40] I pause to note that there was no evidence to support any conclusion that the inadequate clothing provided to Mr. White or the late provision to him of his medication had any material effect on his operating mind. And there is certainly no suggestion that his medications were withheld as some form of inducement.

[41] Despite Mr. White’s protests, I do not find that the persistence of D/S Peterson’s questioning, or physical factors that have been discussed, were such that taken alone they would rise to a level of being regarded as oppressive and, thus as having overborne Mr. White’s operating mind.

[42] However, the analysis does not, in my view, end there.

[43] The so-called Reid Technique has been the subject of academic and judicial scrutiny and criticism: See, for example, “Interrogations and False Confessions: A Psychological Perspective” (2014), 18 Canadian Criminal Law Review at 153-170, R. v. Barges, [2005] O.J. No. 5595 (S.C.J.), R. v. Chapple, 2012 ABPC 229 at para. 122, R. v. T.(C.), 2015 ONCJ 229 at para. 21, R. v. Thaher, 2016 ONCJ 113 and R. v. R.(M.), 2015 ONCJ 391 at para. 47.

[44] Although D/S Peterson acknowledged familiarity with the Reid Technique, he resisted the proposition that he used this technique in its entirety. I accept his answers. However – and D/S Peterson did not assert to the contrary - there were elements of the approach taken by D/S Peterson in his questioning of Mr. White which utilised methodology similar to aspects of the Reid Technique.

[45] An example would be the presentation to Mr. White of two alternatives, neither of which harboured any doubt about Mr. White’s guilt, namely (a) are you a decent person who made a mistake, or (b) are you a cold callous person? Of some significance, it will be recalled, is that at the time of the interrogation, D/S Peterson knew that Mr. White was charged with first degree murder, but never told Mr. White that this or alerted him to what it meant (i.e. that he was alleged to have planned and deliberated on the killing).

[46] Furthermore, as set out in para. 30 of Mr. White’s submissions on the voluntariness application:

A summary of some of the language used by Officer Peterson (much of which is in a monologue form) informs the flavour of the interrogation techniques used:

Page 15-16: want to have a better understanding of the person who I’m sitting across from… decent person who’s been put in a situation and they made a mistake… no doubt what happened…it’s very important for me to understand why”

Page 20, line 755-21 line 810: “you’ve had a lot of stress in your life…you can’t work because of your medical condition…living arrangement wasn’t working out with your dad…yesterday was the last straw…people can only take so much…she [Gail] brought up your Mom’s name”

Page 21, line 815-23, line 900: “no doubt in my mind what happened, trying to make sense of it…you are a decent person…switch got turned on, why?...I’m asking you as a good person to help me understand…giving you an opportunity to apologize,”

Pages 24-28 (mainly monologue): “isn’t a unique situation…happens quite a bit…can only take so much…good people have bad things happen…they lash out sometimes at the object of their problem…one of two ways: good person in a bad situation or a planned incident…you obviously made a bad decision…did you want to apologize or explain…if you speak to me…it becomes information for the courts…I would relay that [apology] to your Dad” …

Page 30, line 1185: “this is an opportunity for you…hate for that to be squandered”

Page 31, line 1210-1215: “if you man up and say I feel really bad I made a really bad mistake…shows you have the moral fortitude to stand up and say look it I messed up”

Page 32, line 1260: reference to “cold callous” person versus a person who was in a bad situation and “just snapped”

Page 33 line 1300: reference to White as a “smart person”

Page 34: reference to potential involvement of Jessie: two scenarios: “maybe Jessie got the gun for you…preplanning…”, or it was just a combination of things…you couldn’t take it anymore…you snapped, you lost it…you’re the only one that knows that”

Page 36: “talking to me…isn’t going to help you legally right…but as a human being…if you say something it’s going to be used against you right but on the other hand you have a family and you do have loved ones…and sometimes they deserve an explanation and sometimes that’s more important”

Page 37, line 1455: “don’t want to compound one mistake…you’ve dug yourself into a deep hole…why we talk to people in situations like this is to give you a chance to dig yourself out a little bit…part of every any investigation is try and understand why and what led up to this…”

Pages 47-51: ongoing references to family members and apologies to father and family and restoring a future relationship: “you care about them…these are important people…you’ve got to live with this…these are people you care about…this is tearing you apart…you’re lucky to have Jessie…Jessie’s in your corner…reference to “legal ramifications versus moral ramifications”…you’ve got to live with yourself after this happened”…

[47] I have carefully reviewed the video tapes of D/S Peterson’s interview with Mr. White – not just when they were played in court while D/S Peterson was in the witness box but, subsequently, on multiple occasions as I have deliberated.

[48] Significant swathes of the interview consist of monologues by D/S Peterson in which he puts forward various theories and permutations about what happened and why, almost none of which are responded to by Mr. White in any meaningful way.

[49] In Barges, at paras. 82-98, Glithero J. found that the existence of lengthy monologues or police soliloquies had an appearance “much more of a statement by the police than it does to a statement by the accused”.

[50] Glithero J. was concerned that a jury might improperly use an accused’s lack of a meaningful response to pages and pages of such police allegations and theories. At para. 98, he said:

… The police theories have no probative value if unadopted by the accused, but have prejudicial effect as constituting a theorization which the officers would not be able to advance, directly, when giving their own evidence.

[51] A.J. O’Marra J. had similar concerns in R. v. Biddersingh, 2015 ONSC 5904. There, an accused had made reference to speaking to a lawyer more than fifty times during the course of an interview. As A.J. O’Marra J. noted, at para. 84 of his decision, most of the interview involved the officer asking questions and making suggestions to the accused which elicited very few responses, “certainly none of which could be considered inculpatory”.

[52] The same can be said of the interview that D/S Peterson conducted with Mr. White. It gives rise to similar concerns on my part as those expressed by Glithero J. and A.J. O’Marra J.

[53] I would add that it is questionable whether Mr. White’s said much that could be regarded as truly inculpatory. The fact that there may not have been a “confession” as such is part of the context to be considered, but does not change the test to be applied: R. v. Davis at para 13, citing R. v. Holmes, (2002), 62 O.R. (3d) 146 (C.A.).

Conclusion of Voluntariness Issue

[54] Having carefully reviewed all of the circumstances in this case, I am not persuaded that Mr. White’s statement was voluntary. The combined effect of the persistence of the police questioning, despite the Mr. White’s assertion of his right to silence, and the methodology employed in the interview raise a reasonable doubt as to the voluntariness of his statements. To adapt van Rensburg J.’s conclusions in R. v. Davis, at para 36, by continuing the questioning, the officer demonstrated that while the right to remain silent may have existed in theory, it ultimately provided no protection to Mr. White.

[55] I would, accordingly, dismiss the Crown’s application to have the videotaped statement of Mr. White to Detective Sergeant on 17 April 2016 ruled admissible.

Residual Discretion

[56] If I am wrong in my conclusion on the issue of voluntariness, I would, as A.J. O’Marra J. did in R. v. Biddersingh, nevertheless exercise my discretion to exclude evidence where the probative value of the admission of the evidence is outweighed by the prejudice to the accused: see R. v. Biddersingh at para. 85, referring to R. v. Seaboyer, [1991] 2 SCR 577.

[57] As submitted on behalf of Mr. White in para. 41 of his written submissions:

… in this case, the interrogation process is characterized by lengthy portions of Officer Peterson speaking at large, punctuated periodically with terse and largely unresponsive comments by White, or assertions of the right to silence, the wish to be returned to his cell or the right to speak to counsel or references to having spoken to counsel.

[58] If the jury were to hear what Mr. Justice Glithero in Barges described as “all these colourful and damning accusations by the police coupled with the choice of the accused to say nothing in response”, the jury would be presented with a narrative which the officers would not be able to advance directly when giving their own evidence at trial. That, in my view, could result in an injustice despite any instructions that might be given to the jury on how to treat such evidence.

[59] To echo the sentiments expressed in Biddersingh, in my role as a guardian of the Constitution, charged with the responsibility of giving effect to the Charter’s guarantee of an accused right to a fair trial, I would exercise my discretion to exclude the video statement given by Mr. White to D/S Peterson on that basis, aside and apart from my conclusion on the voluntariness issue.

Graeme Mew J.

Released: 02 January 2019