COURT FILE NO.: 19/691
DATE: 2019/09/23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. P.N.[^1]
BEFORE: Justice I.F. Leach
COUNSEL: Elizabeth Wilson, for the Crown
Henry Van Drunen, for the Accused
HEARD: September 13, 2019
RESTRICTION ON PUBLICATION
By court order made under s. 486.4(1) of the Criminal Code, information
that may identify the person described in this judgment as the complainant may
not be published, broadcasted or transmitted in any manner. This judgment
complies with this restriction so that it can be published.
ENDORSEMENT
[1] The accused, P.N., is charged with one count of sexual interference contrary to s.151 of the Criminal Code, (“the Code”), and one count of sexual assault, contrary to s.271 of the Code. The complainant is M.C.W., the accused’s teenage stepdaughter.
[2] Mr N. has elected to be tried in this court by a judge and jury.
[3] In advance of that criminal jury trial, (now scheduled to take place in December of 2019), the Crown has brought an application asking the court to confirm the voluntariness of statements made by the accused during the course of an extended police interview conducted on September 21, 2016.
[4] The Crown also seeks a corresponding order confirming that an audio-video recording of that police interview of P.N. is evidence that will be admissible at trial.
Background
[5] At the resulting voir dire hearing of the Crown’s application, I was presented with information and evidence that included the following:
a. the Crown’s application record, which included:
i. a copy of a “General Report” prepared by Constable Daryl Perry, documenting information reported to the Ontario Provincial Police (“OPP”) by a manager of the Huron-Perth Children’s Aid Society (“CAS”) on September 17, 2016;[^2] and
ii. a copy of a suggested transcript prepared in relation to the audio-video recording of the aforesaid police interview of P.N., carried out on September 21, 2016;
b. the testimony of Detective Constable (“D.C.”) Sharon Fisher,[^3] the investigating officer who conducted the relevant police interview of P.N.), and the only witness called by the Crown; and
c. the relevant audio-video recording, which was played in part in open court during the course of the voir dire, before a disk of the recording then was made a formal exhibit.[^4]
[6] Although defence counsel cross-examined D.C. Fisher, the defence chose to lead no evidence of its own during the course of the voir dire.
[7] I have considered the entirety of the evidence presented during the voir dire, (subject to the limitations agreed upon by the parties concerning the portion of the recording to be considered), and will have more to say, in the course of these reasons, about certain specifics of underlying events.
[8] For present purposes, however, relevant facts forming the context of my analysis include the following:
The accused, P.N., was born in 1975. In or about 2002, he began a relationship with the mother of M.C.W., who had separated from the child’s biological father. At the time, M.C.W. was approximately 11 months old.
P.N. and the mother of M.C.W. were married in or around 2004, and the couple had two more children together; i.e., a son and another daughter. As the blended family continued to live together, P.N. treated M.C.W. as his daughter.
On or about September 16, 2016, a manager of the CAS telephoned Constable Daryl Perry of the OPP to provide an update concerning an investigation the CAS had been conducting in relation to reports of possible inappropriate physical contact between P.N. and M.C.W. In that regard, the CAS manager informed Constable Perry:
that the reports received by the CAS had included indications that P.N. would wrestle with M.C.W. from time to time, and that such wrestling had included an occasion wherein P.N. had removed an article of M.C.W.’s clothing, as well as other occasions wherein P.N. had tied the bottom of M.C.W.’s pant legs together;
that the CAS had conducted an investigation into the reports, with the investigation had included interviews of P.N., M.C.W., the mother of M.C.W., and the two younger siblings of M.C.W.;
that P.N. had acknowledged “play wrestling” with M.C.W., including an incident where the pajama bottoms of M.C.W. had slipped down;
that P.N. also had acknowledged, in retrospect, how the behaviour might be inappropriate as between himself and a 15-year-old female such as M.C.W.;
that the investigation had not generated any further pertinent investigation, or any other disclosure of inappropriate acts, sexual touching or assaults;
that the CAS accordingly had no immediate concerns about any of the children’s safety; and
that the CAS was about to conclude its investigation when it received a further report from the mother of M.C.W.’s boyfriend, making reference to the same events that had been investigated with “minor additions”, such as a report the wrestling had taken place after P.N. had locked a bedroom door.
In response, Constable Perry documented the telephone report from the CAS manager by creating a “General Report” document. That document then was relayed to D.C. Fisher, who was tasked with following-up on the report.
At the time, D.C. Fisher was assigned to the Listowel detachment of the OPP, and the OPP’s local “Crime Unit”. She had been an officer with the OPP for approximately 8 years, and an officer with the Goderich Police Service before that.
With the assistance of the CAS manager, D.C. Fisher made arrangements to conduct her own interview of M.C.W. on September 20, 2016, at the relevant CAS office. Although M.C.W. came to the CAS office that day, she was very reluctant to speak with D.C. Fisher. When M.C.W. eventually did speak with D.C. Fisher, she was “not very open” with the detective, but did acknowledge that she and P.N. often would wrestle, that P.N. would sometimes tie the bottom of her pajamas together, and that there had been an occasion when her pajama bottoms and underwear had been pulled down. M.C.W. nevertheless also made it clear that that she did not want P.N. charged with an offence, and that she did not want the police to be investigating the reported concerns in any way.[^5]
In cross-examination, D.C. Fisher indicated, (and I accept), that based on the information she had received up until that point, she had no direct information indicating that anything sexual had occurred or been intended, during the reported contact between P.N. and M.C.W., and accordingly was of the belief that nothing improper had occurred. However, D.C. Fisher nevertheless felt that she was duty bound to complete the assigned investigation.
On the evening of September 20, 2016), D.C. Fisher accordingly spoke by telephone with M.V., (the mother of M.C.W.’s boyfriend), to arrange an interview. An interview of M.V. was scheduled for 4:00pm the following afternoon. During that telephone conversation, M.V. provided D.C. Fisher with no information about any physical touching between P.N. and M.C.W. beyond the “wrestling” that already had been reported.
Shortly thereafter on the same evening, (i.e., at approximately 7:25pm on September 20, 2016), D.C. Fisher also spoke by telephone to P.N., in order to make arrangements for an interview of him as well. In that regard:
D.C. Fisher advised P.N. that she was a detective, investigating an alleged incident of “inappropriate touching” between P.N. and his step-daughter M.C.W., (i.e., the reported incidents of wrestling), and that she wanted to arrange an interview of P.N. to discuss the incident.
In her testimony on the voir dire, D.C. Fisher clarified and confirmed that, at the time, the “inappropriate touching” she was investigating was focused on reported concerns that there had been wrestling between P.N. and M.C.W. during which M.C.W.’s pajamas had been pulled down, without any indications of other touching.
The detective also confirmed that, at the time of her telephone conversation with P.N. on the evening of September 20, 2016, he was “well aware” of what the detective was investigating in that regard, as the CAS already had completed interviews of the entire family, including P.N., asking questions about such matters.
During the telephone conversation, P.N. was crying but “very cooperative”, indicating that he would meet with the detective the next day. In particular, although P.N. noted that he had to go to work the following day, he expressed his willingness to meet the detective thereafter at any detachment of the OPP. Arrangements then were made for P.N. to meet D.C. Fisher at 6:00pm the following evening, at the Mitchell detachment of the OPP. The detective also provided P.N. with her work cellphone number, in case he needed to contact her.
In her testimony on the voir dire, D.C. Fisher could not recall precisely what more she may have said to P.N. over the telephone about the contemplated interview. However:
She was sure, (and I accept), that she provided P.N. with no indication that he was “required” to speak with her, or “had” to speak with her;
She believed she would have said something to the effect of the interview being an “opportunity” for P.N. to give her “his side of what happened”, or his “side of the story”; and
She candidly indicated her belief that there had been no discussion of P.N. having an option to not speak with her, and thought that was because P.N. had been “so cooperative” and “very eager” to speak with her.
At approximately 3:29pm on September 21, 2016, (i.e., approximately 30 minutes before D.C. Fisher’s scheduled interview with M.V., and approximately 2½ hours before her scheduled interview with P.N.), D.C. Fisher unexpectedly received a telephone call from P.N., wanting to talk about concerns he and his wife had about M.C.W. and her safety. In particular, M.C.W. had not returned home, was known to be in the city of Stratford, and there was concern for her well-being. P.N. and his wife had made attempts to contact the CAS manager for assistance, but the CAS manager was in training that day. Not knowing “who else to turn to”, P.N. placed a call to D.C. Fisher for advice. In the result, D.C. Fisher had a conversation with P.N. about the concerns, and suggested that P.N. contact the Stratford Police Service for further assistance. In response, P.N. indicated that he would follow up on the detective’s advice in that regard.
At 4:00pm on September 21, 2016, D.C. Fisher met with M.V., (the mother of M.C.W.’s boyfriend), at the Listowel detachment of the OPP. The detective conducted a recorded interview of M.V., relating to the detective’s investigation of inappropriate touching between P.N. and M.C.W. that may have occurred during the reported wrestling activity. During that interview, M.V. provided the detective with additional information. In particular, according to M.V., M.C.W. had indicated during the course of conversation that P.N. had touched her and “cupped her vagina” during the course of their wrestling. M.C.W. herself had provided no such indication to the detective.
Following her interview of M.V. at the Listowel detachment of the OPP, on September 21, 2016, D.C. Fisher and her partner D.C. Klamusky proceeded to the OPP detachment in Mitchell, in order to prepare for the interview of P.N. scheduled for that evening. At the time, D.C. Fisher was not in uniform.
However, when D.C. Fisher and her partner arrived at the OPP detachment in Mitchell, on September 21, 2016, P.N. was already there waiting for them. In that regard:
When D.C. Fisher initially met with P.N. at approximately 5:55pm, she admittedly began conversing with him about the intended interview before the audio-video recording was activated.
In her testimony during the voir dire, the detective acknowledged that her notes relating to that initial conversation were limited to an indication that she “spoke with” P.N., and “advised him of the interview process”.
D.C. Fisher did not have a detailed recollection of precisely what was said during that initial conversation with P.N., after her arrival at the Listowel detachment of the OPP. However:
She believed she would have indicated to P.N. that the interview would be captured on video, and that her partner D.C. Klamusky would be monitoring and “scribing” the interview.
D.C. Fisher added that she may or may not also have explained, to P.N., that “scribing” meant that D.C. Klamusky would be taking notes during the interview.
D.C. Fisher was sure, at least to her knowledge, that no threats or promises were made to P.N. to encourage his making of a statement.
D.C. Fisher also was confident that she had not given P.N. any form of indication that “it would be better for him” if he provided a statement.
D.C. Fisher felt, (having regard to certain initial statements she made during the opening minutes of the recording), that she may have had a discussion with P.N., before the audio-video recording began, about concerns regarding the provision of a caution. However, she candidly could not recall what she may or may not have said in that regard, emphasizing that, because she has conducted so many interviews, she could not “say for sure” what she may or may not have said on that occasion.
D.C. Fisher did not have a firm recollection of where her conversation with P.N. before the recorded interview may have occurred; e.g., in the lobby of the OPP detachment of Mitchell, and/or in that detachment’s interview room.[^6]
In her testimony, D.C. Fisher confirmed that, according to her notes, she initially met P.N. at 5:55pm, that her interview of P.N. began at 6:12pm., (i.e., approximately 17 minutes after her initial meeting with P.N.), and that her interview of P.N. concluded at 8:54pm. In that regard:
Those time specifications are not consistent with the automated timestamp indications on the audio-video recording of the interview, (and the corresponding indications in the draft transcript, prepared by a transcriptionist working from the recording), indicating that the interview commenced at 6:01pm and concluded at 20:44pm.
However, the duration of the interview recorded in the detective’s notes, (approximately 2 hours and 42 minutes), and the duration of the interview indicated by the automated timestamps, (approximately 2 hours and 43 minutes), are roughly the same. In my view, that indicates, albeit indirectly, that the timepiece relied upon by the detective in making her notes and the automated timer on the recording device were measuring the passage of time at the same rate, but were not synchronized and instead deviated by approximately 10 minutes.
To the extent there is a contradiction between the precise times noted by D.C. Fisher in her notes, and the timestamps automatically added to the recording, I prefer and accept the former as being accurate. Beyond what I think was the greater probability of the detective noticing that her time-piece was inaccurate, (as opposed to the detective or her partner noticing that the time-setting of the recording device was inaccurate), I also have regard to the content of the recording. In particular, at the outset of the recorded interview, the detective makes explicit reference to having met P.N. for the first time “about 15 minutes” before the recording began, which generally accords with the time indications in the detective’s notes; i.e., of having met P.N. at 5:55pm, with the interview beginning thereafter at 6:12pm. That interval is obviously much closer to “about 15 minutes” than the six minutes that would have elapsed between a 5:55pm initial meeting time, (which I think the detective would have taken care to note correctly), and commencement of recording at 6:01pm, as indicated by the first automated time-stamp on the recording.
For present purposes, the important point is that there appears to have been a fifteen to seventeen-minute period of initial interaction between D.C. Fisher and P.N. that was not the subject of any audio-video recording. Nor was that initial interaction the subject of any detailed notes, made by the detective, to assist her recollection of events that had happened approximately three years before the voir dire hearing.
Once the audio-video recording had been activated, the precise statements made by D.C. Fisher and P.N. to each other at the outset of the interview are set forth in the prepared transcript, the accuracy of which I have approved, subject to the required revisions indicated herein. By way of summary, however:
After an initial indication by D.C. Fisher to P.N. that she had forgot to turn on the video recording, there were preliminary confirmations of the timing of their first meeting, where the interview was taking place, and Mr N.’s identity and birthdate.
The detective then noted and generally described the prior telephone conversations between herself and P.N., intermittently asking P.N. for confirmation that she was describing those telephone conversations accurately. In that regard:
The detective noted the first call the evening before, requesting and receiving P.N.’s agreement that the call “was just about having [P.N.] come in for an interview”, in response to which P.N. had indicated that an interview was something he was “willing to do”, and that he “would come to whatever detachment worked”.
The detective then noted that P.N. had called her that afternoon, “out of concerns for M.”, in response to which P.N. explained that his wife had been making unsuccessful attempts to contact the CAS manager, that P.N. had suggested to his wife that he would “call the detective and ask her some advice ‘cause [they] didn’t know what to do”, and that P.N.’s wife (and M.’s mother), had agreed with the suggestion. The detective asked P.N. to confirm “that was the conversation”, and that the detective had make a recommendation for P.N. and his wife to contact the Stratford Police. P.N. did so.
The detective also then asked P.N. to confirm that he had been waiting for her when she arrived at the Mitchell detachment of the OPP and entered its doorway, and that she and P.N., after entering the interview room, had a conversation “surrounding M.”; e.g., discussing where M.C.W. was, and what had happened when the Stratford Police had followed up as requested. In response, P.N. confirmed that as well.
Finally, by way of preliminaries, D.C. Fisher and P.N. exchanged the following comments, which I think worth replicating in detail here:
FISHER: Okay. And so, P., um, I also said to you that I, I would also, because I was going to interview you…
P.N.: Yes.
FISHER: …I was just going to caution you and let you know that…
P.N.: Yes.
FISHER: …because I don’t know the conversation we’re going to have tonight…
P.N.: That’s correct.
FISHER: …that I, I just wanna caution you that whatever you say can be used as, as evidence.
P.N.: Yes.
FISHER: Um, if you tell me something that is criminal…
P.N.: Yes.
FISHER: …um, then, you know, I will stop you at that time and, and…
P.N.: Yes.
FISHER: …we’ll review that.[^7]
P.N.: Yes.
FISHER: So you understand…
P.N.: No worries. This is safe.
During the interview that followed, (or, at least, the portion of the recorded interview counsel asked me to watch and consider for purposes of the voir dire), successive topics addressed during the conversation included the following:
P.N. spoke with D.C. Fisher about M.C.W. “going through depression”, “suicide stuff” and “little stupors or whatever”. He described episodes of M.C.W. sitting in her room at length, “being all mopey”, and speaking about loneliness.
P.N. described how M.C.W. willingly had engaged in bouts of play wrestling with him, (similar to what he did with her two siblings as well), in a manner that made her temporarily less troubled, more interactive and a bit more cheerful.
P.N. spoke at various points about his blended family dynamics, and how he, his wife had M.C.W. had tried to address various related concerns M.C.W. had while growing up; e.g., about whether M.C.W. had been a wanted child, why her parents had separated, and whether she was as loved as her siblings.
There was a discussion of past CAS involvement, with P.N. explaining that initial contact from the CAS had stemmed from a false allegation made by a malicious former babysitter, whom M.C.W. disliked, and who had been fired for stealing, and that the second contact from the CAS had been prompted by P.N.’s reported use of spanking discipline.
At various times, the conversation returned to discussion of troubled and troubling behaviour by M.C.W. In that regard:
P.N. described how M.C.W. had been “lashing out”, expressing anger, (e.g., about such matters as her mother’s alcohol consumption, having to vacation with family, and not being provided immediately with a new cellular phone), and about M.C.W. otherwise acting erratically;
There was discussion of M.C.W. recently experiencing a concussion, of M.C.W. again being focused on thoughts of loneliness and suicide, and about M.C.W. recently learning that she may have been the result of an unwanted pregnancy; and
There was renewed talk of more immediate concerns related to M.C.W. not returning home, and perhaps being afraid to do so.
P.N. described, in detail, the type of play wrestling he did with his children, including M.C.W.
When asked by D.C. Fisher if there had ever been occasions of P.N. and M.C.W. interacting behind closed doors, P.N. voluntarily segued, without hesitation, into a discussion of how he had provided M.C.W. with approximately 15 massages, while M.C.W. was nude. In that regard, P.N. said:
that he and his wife both received massage therapy treatment from professionals;
that the suggestion of M.C.W. receiving massage therapy had originated with a letter from M.C.W.’s doctor, recommending such treatment;
that M.C.W. had asked P.N. if he would provide her with such massages, to address ongoing problems she had with aches and pains;
that P.N. had agreed to provide such massages, trying to emulate the techniques, (including states of dress), employed by the professional massage therapists he and his wife had been seeing;
that he accordingly had run his closed hands on areas of M.C.W.’s nude back, buttocks, legs, sides and front, using the palms of his closed hands;
that he tried to be “very, very professional” when providing such massages, that there had “never been anything sexual in anything” he and M.C.W. had done, and that the massages were “not a turn on” for him;
that he accordingly had never touched M.C.W.’s vagina, never “cupped” or “copped a feel” of her breasts, and never touched her for a sexual purpose;
that he had given similar massages to his other two children; and
that he had remained fully clothed, or at least had his boxer shorts on, while providing such massages.
D.C. Fisher, (who seemed visibly surprised and taken back by P.N.’s revelation of such massage activity, especially between P.N. and his 15-year-old stepdaughter while the latter was nude), went on to ask further questions about standards of nudity practised within the relevant home, indicating to P.N. that “Everybody’s house is different” in that regard. In response, P.N. freely acknowledged that, while he and his wife were “not nudists”, they and their children had seen each other nude “lots of times”, as members of the family frequently walked around the house without clothing.
At one point, D.C. Fisher indicated to P.N. that M.C.W. was telling the detective that P.N. “would cup her vaginal area”; a suggested action which P.N. firmly denied. During the voir dire, D.C. Fisher acknowledged that M.C.W. actually had provided no such indication to the detective. (At the time of the recorded interview of P.N., the detective admittedly had received such an indication only from M.V., who had provided the detective with nothing more than a hearsay account of what M.C.W. was supposed to have said in that regard.) When questioned further about that, D.C. Fisher acknowledged having tried – in an apparent attempt to prompt further possible disclosures or admissions from P.N. - to make P.N. think M.C.W. had made such a claim directly to the detective.
Similarly, although D.C. Fisher may have suggested to P.N. that M.C.W. had told the detective of P.N. “licking her stomach”, (a suggestion which prompted a similar firm denial from P.N., who nevertheless acknowledged having given M.C.W. “those raspberry things”), D.C. Fisher admitted during the voir dire that such information may not have come from M.C.W., but from another source she could not recall.
During the course of the interview, P.N. was treated with kindness by D.C. Fisher, and there were repeated indications that he was not under arrest. For example:
D.C. Fisher testified, and I accept, that the door of the relevant interview room remained unlocked at all times.
The detective left the room a number of times, (e.g., to get water for herself and P.N., and to take a personal break), without locking the interview room’s door behind her;
The detective asked P.N. if he “needed to use the washroom or anything”; and
When P.N. did ask to use the washroom, he was permitted to do so, given directions in that regard, and travelled to and from the relevant washroom, and back into the interview room, without any escort.
At the conclusion of the recorded police interview on September 21, 2016, P.N. was not arrested or charged with any offence. In her testimony, D.C. Fisher said, and I accept, that she did not feel she had reasonable and probable grounds to arrest P.N. at the time. In particular:
the information P.N. had shared about his massaging M.C.W. was not something the detective previously had heard from anyone else; and
the further explanations and details P.N. had provided to the detective, (e.g., concerning the circumstances in which the massages were said to have been undertaken, and the family’s practices in relation to nudity around the home), along with P.N.’s firm denials of any sexual intent or purpose, caused the detective to doubt the existence of criminal intent on the part of P.N.
In January of 2017, the CAS once again contacted the OPP, noting that it had received a further report, (in the wake of P.N. separating from his wife), indicating that M.C.W. had been touched sexually by P.N. In that regard:
A uniformed officer was dispatched to address the concern, and interviewed M.C.W. at the family home. During that interview, (which was not recorded), M.C.W. is said to have made disclosures to the officer suggesting or indicating such sexual touching of M.C.W. by P.N.
However, when the matter was referred to the Crime Unit, and efforts were made to conduct a recorded interview of M.C.W., she once again refused to co-operate. In particular, during attempts to interview M.C.W. at the CAS office on January 18, 2017, M.C.W. refused to repeat, (to the interviewing officer, or to representatives of the CAS who to tried to interview her as well), any of the statements previously made to the uniformed officer.
In the result, P.N. once again was neither arrested nor charged with any offence.
On or about June 29, 2018, M.C.W. then “reached out” to the OPP, asking for the investigation of P.N.’s possible inappropriate touching of M.C.W. to be re-opened. Arrangements accordingly were made for M.C.W. to be interviewed by the police, and a video-recorded statement was provided by M.C.W. to the police on August 7, 2018. During the course of that recorded interview, M.C.W. spoke of the massages that P.N. had given to her.
Officers of the OPP felt that information provided during that last interview of M.C.W. gave rise to reasonable and probable grounds for P.N. to be arrested and charged with an offence.
[9] With the above in mind, I turn now to consideration of whether or not statements made by the accused to D.C. Fisher, during the recorded police interview on September 21, 2016, were voluntary in the sense required by law, so as to permit the Crown’s leading evidence of such statements at trial.
Analysis
[10] General principles relating to voluntariness of statements made by an accused were restated and emphasized by the Supreme Court of Canada in the seminal case of R. v. Oickle, supra, and have since been repeated in decisions such as R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500. They include the following:
Statements by an accused will not be admissible if they are made under circumstances that raise a reasonable doubt as to voluntariness.
The burden is on the prosecution to prove beyond a reasonable doubt that a statement was voluntary.
Application of the “confessions rule” or “voluntariness rule” is necessarily contextual, because “hard and fast” rules cannot account for the wide variety of circumstances that may vitiate voluntariness, including sensitivity to the particularities of the accused.
A trial judge making a voluntariness determination therefore must consider all relevant factors when reviewing such statements, always keeping in mind the twin goals or objectives of protecting the rights of an accused without unduly limiting society’s need to investigate and solve crimes. However, the factors to be considered include the following:
i. Whether statements were induced by threats, (including but not limited to threats of violence), or promises, (including but not limited to offers of leniency, counselling, or other forms of “quid pro quo” in exchange for the accused speaking with police) .
ii. Whether a statement was induced by a desire to escape oppressive conditions, (including but not limited to deprivation of food, clothing, water, sleep or medical attention, denial of access to counsel, and/or excessively aggressive or intimidating questioning for a prolonged period of time);
iii. Whether an ostensible statement by the accused was made at a time when the accused lacked “an operating mind”; a requirement which, according to the Supreme Court of Canada, “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”; and
iv. Whether the police used “trickery” to obtain a statement from the accused, recognizing that courts must be wary not to unduly limit police discretion, and that resort to tricks and other forms of deceit are not prohibited so long as they are not “so appalling as to shock the community”.
[11] Again, that list of factors is not exhaustive, but those are the four principal areas or situations giving rise to possible doubt concerning voluntariness, identified by the Supreme Court of Canada, which therefore understandably have been the focus of subsequent decisions.
[12] With the above in mind, I turn to consideration of whether statements made by the accused to D.C. Fisher, during the course of the recorded police interview on September 21, 2016, were voluntary.
[13] In the course of my analysis in that regard, I will consider arguments advanced by defence counsel. In doing so, I nevertheless do not lose sight of the fact that it is the Crown which bears the onus of proving the voluntariness of the accused’s statements beyond a reasonable doubt.
[14] I think it fair to say that, in this case, there really were no defence suggestions that statements by the accused may have been induced by his being subjected to “oppression” or oppressive conditions, and I independently find in any event that the evidence presented to me in the voir dire contained nothing to suggest any such concerns. In that regard:
In R. v. Oickle, supra, at paragraphs 58-62, the Supreme Court of Canada provided descriptions and examples of the sort of “inhumane” or “distasteful” conditions that may be created by police to create oppressive circumstances sufficient to overbear a suspect’s will to the point of making him or her doubt his or her own memory, and/or offer a “stress compliant confession” to escape such conditions. In particular, the Supreme Court offered an expressly non-exhaustive list of relevant factors in that regard, mentioned above, which included the following: “depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and aggressive, intimidating questioning for a prolonged period of time”.[^8] Another possible source of oppressive conditions was said to be police use of non-existent evidence.[^9]
In my view, there were no such conditions evident in the case before me. Without limiting the generality of the foregoing;
The accused was permitted to attend the interview voluntarily, at a negotiated time in the evening, when he normally could be expected to have attended for the interview having slept and ate sufficiently, and without needing medical attention.
Apart from a passing reference by P.N. to his not having eaten much in two days, there are no expressions of discomfort, and in response to a question by D.C. Fisher as to whether he needed anything, the accused responded by saying “No, I’m good.” In my view, the accused appeared comfortable and relaxed throughout the interview.
In my view, D.C. Fisher treated the accused with kindness and respect throughout the course of the interview. She provided the accused with water and, as noted above, made inquiries about whether he wanted to use the washroom or needed anything else. She conducted her questioning in a benign, friendly and courteous tone throughout the interview. In my view, such questioning was never aggressive or intimidating, and the length of interview I was asked to consider, for purposes of the voir dire, was less than two hours.
The accused’s ability to leave the interview room and OPP detachment at any time may not have been expressly discussed. However, the door remained unlocked at all times, and the accused’s demonstrated ability to proceed to and from the detachment’s washroom unescorted, along with the reality that he was never arrested or charged at any point that evening, provide indirect indications that P.N. was free to terminate the interview and leave at any time he wished.
As for the possibility of conditions of oppression being brought about by police use of “non-existent evidence”, I think the only possible concerns in that regard relate to the detective’s express indication during the interview that M.C.W. was telling the detective P.N. had cupped her vagina, and the detective’s implicit if not explicit suggestion that M.C.W. similarly had told the detective that P.N. had licking M.C.W.’s stomach. In that regard:
D.C. Fisher did in fact have evidence indicating that P.N. had cupped M.C.W.’s vagina. However, it took the form of hearsay evidence provided to the detective by M.V., (who claimed she had heard M.C.W. make such an indication), rather than a far more compelling accusation provided to police directly from the complainant herself. By mischaracterizing the manner in which she received evidence of M.C.W. claiming that P.N. had cupped her vagina, D.C. Fisher suggested incorrectly that the evidence was stronger than it was. But the evidence did exist.
Similarly, D.C. Fisher testified, (and I accept), that she had received evidence indicating that P.N. had applied his mouth to the stomach of M.C.W., although she could not recall whether or not M.C.W. or someone else had provided that information to the detective.
In any event, I think it clear that neither indication made by the detective to P.N., during the course of the interview, induced a stress-compliant confession. P.N. continued to firmly deny that he had ever cupped M.C.W.’s vagina. Similarly, he effectively denied any sexual intent behind his admitted administration of a “raspberry” to M.C.W.’s stomach.
[15] In my view, this case also clearly involves no “police trickery” rising to the level which would prevent a finding that interview statements made by P.N. were voluntary. In that regard:
I think it fair to say that suggestions of possible “police trickery” in this case were confined to:
D.C. Fisher over-stating, in the manner already noted, the nature and strength of the evidence she had of P.N. cupping M.C.W.’s vagina and/or licking M.C.W.’s stomach; and
a broader suggestion that D.C. Fisher misled P.N. by somehow suggesting, in her opening comments to P.N. on the recording, that she did not yet have any evidence indicating criminal conduct on his part - whereas the detective was in possession of evidence, (i.e., the hearsay indications provided by M.V.), indicating that P.N. had cupped the vagina of his 15-year-old stepdaughter; i.e., a touching arguably displaying inherent sexual purpose, thus constituting an apparent crime.
By her own admission, D.C. Fisher acted deliberately in saying to P.N., inaccurately, that M.C.W. herself was telling the detective that P.N. had cupped her vagina. D.C. Fisher also acknowledged that she did so in an effort to elicit possible further disclosure from the accused.
Reading the interview questions of D.C. Fisher in context, and having regard to the detective’s admission during her voir dire testimony that the indication of P.N. licking the stomach of M.C.W. may have come from someone other than the complainant, I think it fair to say that D.C. Fisher deliberately or at lease recklessly engaged in the same form of deception, for the same purpose, in relation to the stomach-licking accusation as well.
In my view, there nevertheless was no “police trickery” insofar as D.C. Fisher did not acknowledge or emphasize to P.N. that she possessed information from M.V., before her interview of P.N., indicating that P.N. may have engaged in inappropriate sexual touching, as far as M.C.W. was concerned. At no time did D.C. Fisher indicate to P.N. that she had no such information. Moreover, as D.C. Fisher emphasized in her voir dire testimony, and demonstrated at the time of her interview of P.N., (i.e., by not arresting or charging him), the detective was of the sincere belief that the hearsay evidence provided by M.V., in the absence of more, fell short of establishing reasonable and probable grounds to believe that a crime had been committed.
In any event, to the extent such potentially misleading indications and omissions by D.C. Fisher might be characterized as “police trickery”, I do not think they rise to the level of such trickery, contemplated by the Supreme Court of Canada in R. v. Oickle supra, and other decisions, required to vitiate the voluntariness and admissibility of an accused’s statements to the police.
In that regard, I am mindful of the Supreme Court of Canada’s emphasis that, in contrast to consideration of threats and promises, oppression and the need for an “operating mind”, use of police trickery is not only related to voluntariness, (insofar as may have induced an accused to make a statement that is unreliable and untrue), but involves a distinct inquiry insofar as it also has the more specific objective of maintaining the integrity of the criminal justice system.[^10]
However, I also am mindful of the Supreme Court of Canada’s emphasis on bearing in mind the twin goals of protecting the rights of an accused without unduly limiting society’s need to investigate and solve crimes, and its acknowledgement that a level of police trickery is tolerated so as not to frustrate the latter goal. In particular, I think it helpful to bear in mind the Supreme Court’s following additional indications, in relation to alleged police trickery and voluntariness:
Courts should be wary not to unduly limit police discretion.[^11]
The investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The police, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not, through the confession or voluntariness rule, be hampered in their work. What should be repressed vigorously is conduct on the part of the police that shocks the community.[^12]
There may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community.[^13] However, the situations and occasions deserving such “immediate and vigorous rebuke” will be “very rare” and “very few”.[^14] In particular, to meet that standard, the “trick” resorted to by the police must be “a dirty trick” that “shocks the community”, and that is a “very high threshold”; a threshold “higher … than that to be attained to bring the administration of justice into disrepute in the context of a violation of the Charter”.[^15]
Examples of police trickery that might “shock the community”, in the sense required, include the following: a police officer pretending to be a lock up chaplain and hearing a suspect’s confession; a police officer pretending to be a duty legal-aid lawyer to elicit incriminating statements from an accused; and police injecting truth serum into a diabetic suspect, pretending it is the suspect’s daily shot of insulin, in order to use resulting statements in evidence.[^16]
In my view, the alleged “police trickery” of D.C. Fisher in this case obviously pales in significance to the examples provided by the Supreme Court of Canada, and does not rise to the very high threshold required to satisfy the “community shock test”. Nor do I see anything in the evidence to suggest that any conduct of D.C. Fisher, in that regard, somehow undermined the reliability of what the accused may have told the detective.
[16] As for “threats”, “promises” or proffered “quid pro quos”, which may have militated against a finding of voluntariness, in relation to the interview statements provided to D.C. Fisher by the accused, I similarly am satisfied that there were no such concerns in this case. In that regard:
In my view, the evidence presented on the voir dire provided no indication whatsoever of any threats being made to P.N., to encourage the making of his interview statements. Without limiting the generality of the foregoing:
D.C. Fisher denied the making of any such threats;
Defence counsel did not suggest the making of any such threats; and
As I already have noted, the accused was treated with courtesy and respect throughout the relevant police interview. He was never mistreated. Nor were there any express or implied threats of ill treatment or more punitive consequences for the accused if her failed to speak with D.C. Fisher.
Similarly, in my view there were no relevant promises made, or “quid pro quos” offered by D.C. Fisher, to induce any statement from the accused. Without limiting the generality of the foregoing:
Although the detective acknowledged possibly having indicated to P.N. that the interview was an “opportunity” for him to provide the detective with “his side of the story”, there is no evidence whatsoever to suggest that any such indication was ever accompanied by any form of promise that the accused would receive favourable treatment or any other kind of benefit if he chose to exercise that opportunity.
In particular, there is no evidence to suggest, let alone indicate, that P.N. exercising an opportunity to provide his “side of the story” would result in any “hope of advantage”, as far as criminal proceedings were concerned. Nor is there any evidence to indicate or suggest that P.N. was promised or offered leniency in exchange for any statements he might make to D.C. Fisher during the interview.
More generally, in my view, there was no promised benefit of such a nature that, when considered in light of the relationship between D.C. Fisher and the accused, and all the surrounding circumstances of the confession, would tend to induce P.N. to make an untrue statement”.[^17]
Defence counsel suggested that P.N. had been “induced” to speak with D.C. Fisher by comments indicating that she would stop P.N. if he said anything criminal and revisit the matter of a caution at that time, such that P.N. was misled into thinking that what he was saying during the interview would not be used against him unless and until the detective stopped and cautioned him further, as promised. However, while I think that is a concern, (for the reasons outlined below), in my view the “promise” relied upon by the defence in that regard raises concerns more properly addressed under the “operating mind” requirement for statements to be considered voluntary – to which I turn next.
[17] As noted above, the Supreme Court of Canada has explained that the relevant “operating mind” requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”.[^18]
[18] In this case, there is absolutely no question that P.N. knew he was speaking to a police officer.
[19] In my view, whether or not P.N. had the requisite “operating mind”, at the time of his police interview by D.C. Fisher, accordingly turns on whether the evidence establishes that the remaining aspects of the “operating mind” requirement described by the Supreme Court of Canada were present at the relevant time.
[20] The limited nature of the threshold that has to be met in that regard has been described and emphasized by the Supreme Court of Canada in the following terms:
The operating mind test … 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 operating 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.[^19]
[21] In this case, I think there is no evidence to indicate or suggest that the accused lacked the cognitive ability to understand what he was saying to D.C. Fisher during the course of the interview.
[22] To the contrary, in my view the behaviour and responses of the accused, throughout the that portion of the interview I was asked to consider, make it abundantly clear that he was intelligent, articulate and appropriately responsive to the detective’s questions and comments. In my view, there were no indications that the cognitive ability of the accused was impaired; e.g., by matters such as lack of sleep, drugs or alcohol.
[23] In my view, the real concern about voluntariness of the accused’s police interview statements, in this case, centres on the other aspect of the second component of the “operating mind” requirement described above; i.e., on whether the accused had awareness or knowledge that what he was saying to D.C. Fisher could be used “to his detriment”, in “proceedings against the accused”.
[24] In approaching that aspect of the second component of the “operating mind” requirement in this case, I think it helpful to note some of the more particular and explanatory descriptions of that component which were canvassed and relied upon by Justice Sopinka, in R. v. Whittle, supra, when formulating the summary of the “operating mind” requirement adopted and since repeated by the Supreme Court of Canada. In that regard, reference was made to:
the comments of Justice Beetz in Horvath v. R., 1979 CanLII 16 (SCC), [1979] 2 S.C.R. 376, who indicated at p.425 that the component refers to “an awareness of what is at stake in making a statement to a person in authority”; and
the comments of Justice McIntyre in R. v. Clarkson, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, who indicated at p.399 that the focus is on whether the accused “was aware of the consequences of making the statement on the particular occasion in question”, and that “to be aware of the consequences in this particular context simply means to be capable of understanding that [his or] her statement could be used in evidence in proceedings to be taken against [him or] her”.
[25] In that regard, Crown counsel in this case relied in large measure upon the accused’s apparent awareness that D.C. Fisher wished to speak with P.N. about the indications that he had engaged in inappropriate touching with M.C.W. during the reported “wrestling” activity” with his stepdaughter, (in respect of which there already had been a CAS investigation that had included P.N. being interviewed and questioned in that regard), and the “caution” provided by D.C. Fisher during the opening stages of the recorded police interview conducted on September 21, 2019.
[26] I think it fair to say that such circumstances may probably have been sufficient to bring home to the accused that things said by him to D.C. Fisher, during the course of the police interview, might be used as evidence in criminal proceedings against the accused. In particular:
a. P.N. knew, as a result of the CAS investigation, that there were concerns about the propriety of the manner in which he had touched his teenage stepdaughter, at least during the course of his reported “wrestling” activity with M.C.W.;
b. In my view, P.N. knew or reasonably ought to have known that involvement of the police, beyond the CAS investigation that had already taken place, represented concern that his touching activity in relation to M.C.W. might rise to the level of a criminal offence; and
c. in her remarks to P.N., near the beginning of the recorded interview, D.C. Fisher expressly said “I just wanna caution you that whatever you say can be used as, as evidence”.
[27] However, I also am very mindful that mere probability that P.N. comprehended that his interview statements might be used in criminal proceedings against him is not sufficient.
[28] As noted above, the precondition for admissibility of an accused’s statements to police, in a criminal proceeding against the accused, is the Crown’s proof of voluntariness beyond a reasonable doubt.
[29] As the Supreme Court of Canada has emphasized,[^20] a reasonable doubt is not a doubt based on sympathy or prejudice. Nor is it an imaginary or frivolous doubt. Rather, it is a doubt based on reason and common sense. It is a doubt logically connected to the evidence or the absence of evidence.
[30] I also bear in mind that the standard of “proof beyond a reasonable doubt” does not require proof to an absolute certainty; i.e., proof beyond any doubt.^21 The Crown is not required to meet that impossibly high standard when attempting to prove, beyond a reasonable doubt, that statements made by an accused to police were voluntary.
[31] Having considered the matter in detail and at some length, I have what I consider to be a reasonable doubt as to the voluntariness of the statements made to D.C. Fisher by P.N. during the course of his police interview. In particular, having regard to the above definitions:
a. I have what I consider to be a reasonable doubt as to whether P.N., at the relevant time, comprehended that the statements he was making to the detective could be used as evidence in criminal proceedings against him; and
b. I accordingly have what I consider to be a reasonable doubt as to whether, at the relevant time, P.N. had an “operating mind” in the sense required by law.
[32] In that regard, I am influenced by the total effect of a constellation of factors, each of which independently may not have sufficed to create that reasonable doubt in my mind.
[33] First, the evidence of P.N. having received a timely caution, sufficient to bring home the possibility of his interview statements being used against him in criminal proceedings, is problematic in this case. In that regard:
a. In its standard form, a “primary caution” provided by police involves an express statement by the police, specifically indicating to the recipient that he or she may be charged with a criminal offence but has the right to remain silent, and that anything said during a police interview can be used against him or her if he or she is charged with a crime.[^22]
b. Police provision of an express caution in the standard form may go a long way towards establishing, beyond a reasonable doubt, that an accused had the requisite awareness of consequences contemplated by the “operating mind” requirement.[^23]
c. However, I also am mindful of the reality, emphasized by our Court of Appeal, that the provision of such a caution is neither a requirement nor a guarantee of voluntariness. Even where a person is a suspect, the absence of the standard caution is only one factor to be considered in the voluntary analysis – just as the presence of such a caution does not automatically lead to the conclusion that a statement was voluntary.[^24]
d. Moreover, I bear in mind that, despite the absence of a primary caution in the standard form, its purpose might be achieved in other ways; e.g., if it otherwise was “brought home” to an accused that he or she “did not have to give the statement and that there were potential adverse consequences in doing so”.[^25]
e. In this case, D.C. Fisher candidly acknowledged during her voir dire testimony that she was unsure of what she may or may not have said to P.N., in terms of providing him with a primary caution, during her preliminary interactions with P.N. at the Mitchell detachment of the OPP before the recording device was activated. That the detective said something in that regard seems reasonably clear, as she makes reference, during the early stages of the recorded interview, to having said something about such matters to P.N. before the recording device was activated.[^26] But again, the detective honestly could not recall what her comments in that regard may have been. In the result, the evidence led by the Crown, in relation to provision of a caution to P.N., effectively rises no higher than the brief comments made by D.C. Fisher in that regard during initial stages of the recorded interview.
f. In a number of ways, those recorded comments by D.C. Fisher fall short of delivering the primary caution in its standard form. In particular, there is no express reference to the possibility of P.N. being charged with a criminal offence, there is no express comment indicating and/or emphasizing P.N.’s right to silence, and there is no inclusion of an express indication that the interview statements provided by P.N. during the interview could not only be used as evidence, but used as evidence against him if he was charged with a crime.
[34] Second, the defective form of primary caution provided by D.C. Fisher to P.N. during the initial stages of the recorded police interview was not delivered in isolation. To the contrary, it was immediately accompanied by what I view as problematic indications and/or assurances, made by the detective to P.N. that, if he told her “something that is criminal”, D.C. Fisher would “stop [P.N.] at that time”, and “review that”. In that regard:
a. I agree with defence counsel that those supplementary comments, immediately added to the defective form of primary caution delivered to P.N. by the detective, were at the very least ambiguous. In particular:
i. They might be construed as an indication by the detective that, if something heard by her during the course of the interview caused her to form reasonable and probable grounds to arrest P.N. for the commission of an offence, she would have paused, before proceeding further, to advise P.N. of that, advise P.N. of his rights to counsel, and provide P.N. with an opportunity to exercise those rights, before she also then delivered, to P.N., a further recitation of a primary caution as well as a secondary caution.
ii. However, especially to a lay person, I think the comments of the detective might fairly have been construed as an indication that, unless and until the detective stopped P.N. to advise him that he had told the detective “something that is criminal”, and revisited the need for a “caution” about the possibility of such statements being used as evidence, P.N. could keep talking on the assumption that what he was saying was not criminal and therefore not usable as evidence in a criminal proceeding against him.
b. In that regard, D.C. Fisher testified, and I accept, that she intended the first meaning. However, I also find that there was nothing said by her, in that regard, to make that intention clear to P.N., and bring home to him that everything he was about to say to the detective could be used in criminal proceedings against him even if the detective did not “stop” him, and “review” the need for a caution in that regard.
c. Although Crown counsel emphasized that P.N. had not given testimony on the voir dire to confirm that he may have had such an alternative understanding of the detective’s comments, I think it important to emphasize, once again, that it is the Crown which bears the burden of proving voluntariness of an accused’s statements to police beyond a reasonable doubt, and not the accused who must prove that his statements were not voluntary in the sense required by law. Moreover, for the reasons that follow, in my view there are other contextual circumstances which reinforce a reasoned doubt as to whether P.N. truly comprehended, (especially after hearing the initial comments made by D.C. Fisher during the opening stages of the recorded interview), that statements made by him during the recorded police interview could be used in criminal proceedings against him.
[35] Third, unlike many if not most of the situations giving rise to the need for voluntariness determinations in relation to statements made by an accused to police, the circumstances herein were not confined to a situation of an accused speaking to police in a situation where the focus of discussion was clearly on matters relating to worrisome and possibly criminal conduct by the accused. In that regard:
a. In my view, P.N. clearly knew that D.C. Fisher wished to speak with him about reports that he may have touched his stepdaughter inappropriately during the wresting activity that had been investigated by the CAS, and brought to the attention of the police. That was what had prompted the detective’s prior telephone call to P.N., requesting an interview.
b. However, there also was evidence in this case clearly indicating that P.N. also wanted to speak with D.C. Fisher about collateral matters he considered to be equally if not more important; i.e., the concerns P.N. and his wife had about the recent behaviour of M.C.W., her welfare, her recent failure to return home, and the police involvement that had been required to locate M.C.W. in the city of Stratford. In my view, that was evident in the acknowledged telephone conversation P.N. had with D.C. Fisher on the afternoon of September 21, 2016, less than a few hours before the recorded police interview took place. However, it also was reflected in the reality that conversation during the police interview repeatedly turned to the recent behaviour of M.C.W., as well as the resulting concerns P.N. and his wife had in that regard which had prompted them to reach out to the police for assistance.
c. In such circumstances, it seems to me that the potential for misunderstandings, in relation to any ambiguous comments made by the police concerning the purpose and potential consequences of the police interview, was heightened and called for corresponding care in making it abundantly clear to P.N. that anything said by him during the police interview could be used against him if he was charged with a crime. Without such care, there was a distinct possibility that P.N. might have been under the impression that his ongoing communications with police, already involving non-criminal issues and concerns relating to M.C.W.’s behaviour and welfare, had not crossed into the realm of a potential criminal proceedings against him.
[36] Fourth, I think it particularly concerning that, immediately after D.C. Fisher’s delivery of a primary caution in a defective form, accompanied by the ambiguous comments noted above that the detective would “stop” P.N. and “review that” if and when he told the detective “something that is criminal”, P.N. responded by saying “No worries. This is safe.” In that regard:
I frankly have difficulty hearing and reading those comments of P.N. without interpreting them as an express contemporaneous indication, by the accused, of an understanding that he was about to make comments to the police in a context where there was no risk of adverse consequences arising from what he was about to say.
In particular, I question how the court can be reasonably assured that P.N. had “an awareness of what [was] at stake in making a statement to a person in authority”, when P.N. was expressly indicating that making interview statements to D.C. Fisher presented “no worries”, and that he was speaking to the detective in a “safe” environment; e.g., one that posed no risks or dangers to himself.
In my view, when D.C. Fisher was confronted with those comments by P.N., it was incumbent upon her, (especially having regard to the other concerns noted above), to address those comments by P.N., clarify P.N.’s apparent understanding and belief indicated by those comments, and take any further steps that may have been necessary and appropriate in the circumstances to “bring home” to P.N. that he “did not have to give [any] statement” to the detective, and that there were “potential adverse consequences in doing so”. In other words, having been presented with a clear and contemporaneous express indication that P.N. apparently did not appreciate the risk of any such adverse consequences to himself, from making interview statements to D.C. Fisher, I think the detective, to ensure the voluntariness of the anticipated statements, could and should have done something further to confirm P.N.’s comprehension that he had the right to remain silent, and that anything he chose to say to D.C. Fisher during the police interview could be used against him in criminal proceedings.
The detective nevertheless failed to make any further inquiries or take any further corrective measures in that regard. Having heard P.N. say “No worries” and “This is safe”, in response to her comments concerning a caution, D.C. Fisher chose to simply press on with the interview.
[37] For all such reasons, I think there is good reason to doubt that P.N. comprehended that what he was saying to D.C. Fisher during the recorded police interview could be used to his detriment; i.e., as evidence in criminal proceedings against the accused.
[38] I therefore similarly think there is good reason to doubt that the accused had an “operating mind”, in the sense required for voluntariness, during the course of the relevant police interview.
[39] In my view, the existence of that reasonable doubt makes it impossible to find that the Crown has proven voluntariness of the statements made by the accused, during that recorded police interview, beyond a reasonable doubt.
[40] Evidence of such statements accordingly should not be admissible at trial.
Conclusion
[41] For the reasons outlined herein, the Crown has failed to prove, beyond a reasonable doubt, the voluntariness of the statements made to Detective Fisher by the accused during the course of the police interview of P.N. conducted on September 21, 2016, and evidence of those statements accordingly will be excluded at trial.
[42] As confirmed during the assignment court held on September 20, 2019, this matter is to be spoken to on December 2, 2018, at 9:00am, for contemplated scheduling of a criminal jury trial during the trial sitting beginning that day, with jury selection to follow thereafter.
[43] Through consultation with the trial co-ordinator, counsel also are to schedule a trial readiness conference call, with a reporter, to take place during the two weeks preceding the commencement of that trial sitting.
“Justice I.F. Leach”
Justice I.F. Leach
Date: September 23, 2019
Schedule A
Required revisions to transcript of police interview of P.N. conducted by Detective Fisher on September 21, 2016
On page 6 of 78:
the eighth line should read “known a lot better, you know, that my behavior, while my”;
the seventeenth line should read “how she’s alone and whatever and with M., she”; and
the eighteenth line should read “kinda opened up when we wrestled, and I carried it a little too”.
On page 11 of 78, the twenty-seventh line should read “she was wanted. She was planned for. Unfortunately, you”.
On page 12 of 78:
the eighth line should read “a connection with her dad. You know, um, it’s not easy to”; and
the twenty-third line should read “excluding the other or they made it difficult or, you know,”.
On page 13 of 78, the fifteenth line should read “you know, whatever we needed her type thing. She’d always”.
On page 16 of 78, the eleventh line should read “forgiven me about that either. And the funny thing is, is like I”.
On page 17 of 78, the first line should read “don’t know what transpired there so I can’t give you any”.
On page 18 of 78, the third line should read “cabinet? I said I’ve been saying this for frigging a few years”.
On page 26 of 78:
the sixth line should read “her own thing now. I guess she’s getting a little older but”; and
the twentieth line should read “when she kinda got that look in her eye or whatever. I’m”.
On page 38 of 78, the ninth line should read “anything that would incorporate me trying to get something from her,”
On page 45 of line 78, the nineteenth line should read “the bed. And she freakin’ lost her mind, she lost her mind. And”.
On page 46 of 78, the twenty-fifth line should read “Yeah, like we have a good sex life, um, yeah. There’s”.
On page 48 of 78, the twentieth line should read “Sometimes it’ll be goodnight, other times she’ll give me a hug”.
[^1]: As this matter is governed by a publication ban, pursuant to s.486.4(1) of the Criminal Code, I will describe persons involved herein, other than the relevant police officers, only by their initials.
[^2]: It was acknowledged and agreed by counsel that the filing included in the Crown’s application record was to be considered evidence on the voir dire, without its being marked as a formal exhibit.
[^3]: At the time of the voir dire hearing before me, the officer was no longer assigned to the Crime Unit of the OPP, and accordingly no longer held the rank of “Detective Constable”. She had resumed her role as a “Constable” of the OPP. Despite the change in her official rank and designation, I will refer to the officer herein as “D.C. Fisher”, (using the rank she held at the time of all relevant events), in an effort to avoid confusion.
[^4]: In that regard: - During the course of the voir dire hearing, Crown and defence counsel agreed that, although the entire disk would be marked as an exhibit, only a portion of it would be played and relied upon by Crown counsel for purposes of the Crown’s application. In particular, it was agreed by the parties that, for purposes of the voir dire, I was to have regard only to the portion of the audio-video recording running from its commencement, (at approximately 18:01 on September 21, 2016, according to the automated timestamp on the recording), to a point in the interview, (at approximately 19:57 on September 21, 2016, according to the same automated timestamp), when both D.C. Fisher and P.N. successively had left and returned to the interview room. - I am mindful that the transcript of the video-recorded interview, supplied with the Crown’s application record, is only a suggested aide memoire of what actually may have been said, and by whom, during the course of that interview, and that final determinations in that regard are mine to make as the trier of fact on the voir dire. For purposes of the voir dire, I accordingly find that the transcript filed with the Crown’s application record constitutes an accurate record of what was said by D.C. Fisher and P.N., (whom the transcript identifies respectively as “FISHER” and “P.”), during the course of the relevant interview, subject to the required revisions set forth in “Schedule A” to this endorsement. Where the draft transcript indicated that certain words said during the interview were “inaudible”, and I have not indicated the actual words spoken in the required revisions to the transcript set forth in “Schedule A”, the words spoken during the relevant portions of the recording remained inaudible to me as well.
[^5]: In the course of cross-examination, D.C. Fisher added that the complainant had been “very clear” that there had been “nothing sexual” about what had happened, and that there was no sexual intent.
[^6]: In her initial testimony, D.C. Fisher indicated that she probably had spoken with P.N. in the lobby. After watching the audio-video record of her interview of P.N. played in court, D.C. Fisher felt that her pre-recording discussion with P.N. about the interview probably had taken place in the interview room.
[^7]: D.C. Fisher testified, and I accept, that when making that particular comment, she had in mind the possibility of hearing something during the interview that would cause her to form reasonable and probable grounds for making an arrest, at which point she intended to provide P.N. with his rights to counsel, and provide him with an opportunity to exercise those rights. The detective indicated that she probably also then would have provided Mr N. with a further caution and a secondary caution. However, I also find that nothing was said, at the time, to make it clear to P.N. what D.C. Fisher had intended to convey by her actual remarks made to P.N. in that regard.
[^8]: R. v. Oickle, supra, at paragraph 60.
[^9]: R. v. Oickle, supra, at paragraph 61.
[^10]: See R. v. Oickle, supra, at paragraph 65.
[^11]: Ibid., at paragraph 66.
[^12]: See Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p.697; and R. v. Oickle, supra, at paragraph 66.
[^13]: See R. v. Oickle, supra, at paragraph 67.
[^14]: See Rothman v. The Queen, supra, at p.697.
[^15]: See R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp.286-287.
[^16]: See R. v. Rothman, supra, at p.697; and R. v. Oickle, supra, at paragraph 66.
[^17]: See R. v. Oickle, supra, at paragraph 51, concerning the type of promised benefit needed to vitiate the voluntariness of a statement.
[^18]: See R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at p.936, and R. v. Oickle, supra, at paragraph 63.
[^19]: See R. v. Whittle, supra, at p. 939.
[^20]: See R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at paragraph 36.
[^22]: See R. v. E.B., 2011 ONCA 194, [2011] O.J. No. 1042 (C.A.), at paragraph 91.
[^23]: Indeed, as noted by Justice McIntyre in Clarkson v. R., supra, at p.399, the familiar and customary warning, derived from the English Judges’ Rules, “was designed to ensure knowledge of the consequences of the statement, that is, its possible use in proceedings against the accused”.
[^24]: See R. v. E.B., supra, at paragraph 88.
[^25]: See R. v. E.B., supra, at paragraph 91.
[^26]: See the transcript, (which I have confirmed to be accurate subject to indicated revisions), at p.5 of 76, lines 7-10.