COURT FILE NO.: CR-17-10000701-000 and CR-17-10000826-0000
DATE: 20191001
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
GAVIN MacMILLAN
– and –
ENZO DE JESUS CARRASCO
Rick Nathanson and Pamela Santora, for the Crown
Sean Robichaud and Chantelle LaFitte, for Gavin MacMillan
Uma Kancharla, for Enzo de Jesus Carrasco
HEARD: September 23-25, 2019
By virtue of s. 648(1) and s. 645(5) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.
M. Dambrot J.:
[1] This ruling concerns the voluntariness of a post-arrest statement made by Mr. De Jesus Carrasco, whom I will refer to as Mr. De Jesus in accordance with his preference, to a police officer.
BACKGROUND
[2] Mr. De Jesus is charged in an indictment with six offences: gang sexually assaulting the complainant (s. 272(1)(d) of the Criminal Code); two counts of sexually assaulting the complainant (s.271 of the Code); administering a stupefying or overpowering drug to the complainant to enable their commission of the sexual assault (s. 246(b) of the Code); and forcibly confining the complainant (s. 279(2) of the Code). He and Mr. MacMillan, who is charged with three of these offences, are being tried by me with a jury.
[3] Five of Mr. De Jesus’s charges and all of Mr. MacMillan’s charges are alleged to have taken place in a bar owned by Mr. MacMillan and managed by Mr. De Jesus over the night of December 14 to 15, 2016. The remaining charge is alleged to have taken place in the morning of December 15, 2016, in Mr. De Jesus’s residence.
[4] I heard several motions prior to the empanelling of a jury. The first of these was a challenge to the admissibility of Mr. De Jesus’s post-arrest statement on the basis that it was not made voluntarily. At the outset of the voir dire, counsel advised me that they had agreed to streamline the application, and that, as a result, it would be necessary for the Crown simply to play the video of the accused being transported to 14 Division after his arrest, his booking video and the video of the taking of his statement, and then call a single witness, Det. Kevin Firmeth, who interviewed Mr. De Jesus and took his statement.
[5] Mr. De Jesus was arrested on December 16, 2016 and lodged in the 14 Division cells that evening. It is plain from viewing the video of Mr. De Jesus being transported to 14 Division and the video of his booking that nothing eventful took place during this period of time. It is apparent from listening to them that the accused has an accent and that English is his second language, but it is equally apparent that he speaks and understands English reasonably well. He was responsive to questions asked of him and had no difficulty in asking questions of the police officers. He was treated respectfully throughout the transportation and booking process, was informed of the steps being taken, understood them and was cooperative with the police.
[6] While reference was made in the booking process to the accused being given his rights upon his arrest, this was not led in evidence and I do not know precisely what was said to him, or how he responded. However, prior to him being lodged in the police cells, when he asked the booking officer what would happen to him, the booking officer told him, amongst other things, that detectives may have questions for him, but that it was up to him whether or not to answer them.
[7] The accused was interviewed by Det. Firmeth beginning at about 7:00 a.m. on December 17, 2016, shortly after he came on duty. Det. Firmeth had not been involved in the investigation and had only read a synopsis of the matter when he commenced the interview. The interview was conducted in a very low-key manner. No pressure of any sort was placed on the accused. He was simply asked for his side of the story, and little more.
[8] Counsel for Mr. De Jesus was most helpful in focussing this application. She made it clear that the only issues she was raising related to Mr. De Jesus’s level of comprehension of the English language, particularly in light of the fact that some of the questions asked of him were lengthy and sometimes double barreled. She also said that the caution administered to him was overly long, and the failure of the officer to ask him if he understand should leave me in doubt about whether or not he understood that he was not obliged to answer police questions, and in turn should leave me in doubt as to whether the statement was voluntary. She noted as well that while the accused’s answers to shorter questions were clearly responsive, some of his answers to longer questions were not, again raising the spectre that he did not understand the questions, and that his answers were not voluntary.
ANALYSIS
[9] The accused, as is his right, did not testify on this voir dire. As a result, I can only evaluate the level of his comprehension of the English language by my observations of his linguistic ability in the three videos. From those observations, I conclude that his ability to understand the English language is reasonably sophisticated. He had no difficulty in understanding what was said to him by the officers who transported him to 14 Division, or by the booking officers. He responded to them appropriately and without difficulty. Some of his answers to questions asked of him demonstrated that he could understand and express somewhat complex ideas in English. He also asked questions of the police officers that they clearly understood. The same can be said for his comprehension of the questions asked of him by Det. Firmeth, and the responsiveness of his answers.
[10] It is true that when asked long, double barreled questions by Det. Firmeth, some of his answers tended to respond to the last part of the question only, and sometimes to an unrelated thought that he wanted to convey. But this might easily happen with an accused whose first language was English. Nothing about this suggests to me that he did not understand what he was being asked, or that he could not express himself in English.
[11] I turn briefly to the law. It seems to me to be well settled that even where an accused has some difficulty with speaking and understanding the English language, which I do not find here, it is not a bar to voluntariness. The test was succinctly stated in R. v. Lapointe and Sicotte (1983), 1983 CanLII 3558 (ON CA), 9 C.C.C. (3d) 366 (Ont. C.A.), aff’d 1987 CanLII 69 (SCC), [1987] 1 S.C.R. 1253, at para. 44:
In my opinion, the proper test to arrive at the determination whether the statements (otherwise held to be, voluntary) were admissible, was whether the respondents’ understanding and ability to communicate in the English language was so deficient that it was impossible for them to have understood the police or to have made any statements in English. Only then could it be said by the judge that the statements did not amount to their statements. This test, in my opinion, has nothing to do with mental condition or operating mind. It involves the judge on the voir dire applying a legal test to his findings of fact regarding the accused’s ability to comprehend and communicate in the language of the statement. It is difficult to conceive of a situation where the prosecution would be tendering such a statement for, on a voir dire, the first prerequisite would be to adduce some evidence that the statement tendered is the accused’s statement. The determination whether the suspect had the capacity to make a particular statement, by reason of language difficulties, is one for the trier of fact.
[12] In this case, I conclude that the statement of the accused was “otherwise” voluntary. The only concern raised by the accused, or that even conceivably arises on this record, relates to the caution. Counsel for the accused argues that the accused was unaware that he had the right to silence. I have already noted that the booking officer told the accused that he didn’t have to answer any questions asked by the detectives. But of course, that was several hours before the interview. More importantly, Det. Firmeth went to great pains to ensure that the accused understood his right to silence.
[13] He began the interview by explaining to Mr. De Jesus that he was going to tell him what the allegations against him were and give him an opportunity to ask questions of the officer, but first he wanted to “cover off [his] rights to counsel again, and caution.” He then proceeded to repeat what the three offences alleged against him at that time were, and advise him of his right to counsel, including his right to apply for legal aid and his right to speak to duty counsel. He asked Mr. De Jesus if he understood, and Mr. De Jesus replied that he did.
[14] Det. Firmeth then asked him if he wished to call a lawyer. The accused said no. Det. Firmeth then confirmed that the accused had already spoken to duty counsel, and that he was satisfied with the call. The officer then explained that there were actually three charges alleged against him, one of which was forcible confinement. When Mr. De Jesus specifically asked what forcible confinement meant, the officer did his best to explain it to him.
[15] Next Det. Firmeth asked the accused if he wanted to say anything, but then immediately said that he would read a summary of the allegations first. He then cautioned the accused. In light of the fact that the accused had been in custody for some time, he chose to give him what is often termed a secondary caution. In doing so, he went to great pains to ensure that the accused understood.
[16] He said:
I know it’s kind of obscure here, I, I have to obviously, I’m gonna have to let you know what the allegations are first, but okay, so if you have spoken to any other police officer or if anyone else in a position of authority has spoken to you in connection with this matter, I want it clearly understood that I do not want it to influence you in making a statement. So basically, if any police officer from any of the guys you first met last night to us, if any have told you that you have to give a statement, that’s not true. It’s only if you freely choose to do so. So if you don’t want to say anything and you don’t want to give a statement, that’s your right to do that, and I want you to understand that’s okay. And if any other officers told you that you have to, that’s not true, you don’t have to give a statement. It’s only if you chose to do so, okay? So alright, so what I’m going to do is read you the allegations and like I said if you have any questions from that, you know you can ask if you want.
So, there’s two accused, so do you understand what an accused person is, okay, so it says here Enzo De Jesus Carrasco, which is yourself, and a person by the name of Gavin MacMillan, do you know who that person is?
[17] Mr. De Jesus replied “yes”. Det. Firmeth then read the allegations at considerable length. When he finished, Mr. De Jesus volunteered, “That’s a really serious picture.” Det. Firmeth replied, “Okay, is any of this true?” Mr. De Jesus replied, “I’m going to tell you … she got to my house in the morning. I made her breakfast.” A series of short questions and answers followed.
[18] It is clear to me that in this exchange, before any questions were asked of Mr. De Jesus, Det. Firmeth was at great pains to ensure that the accused knew that he did not have to answer any of his questions. The explanation may have been lengthy, somewhat repetitive, and perhaps in less than elegant language, but I have no doubt, in light of what was said, in light of Mr. De Jesus’s evident language skills, in light of what he had been told at least by the booking officer, and in light of his own response, that Mr. De Jesus knew that he had a right to silence.
[19] It is true that in the course of his lengthy explanation of the right to silence, Det. Firmeth neglected to ask the accused if he understood, but he undoubtedly did.
[20] My conclusion is supported by some of the subsequent answers given by the accused. When asked, in effect, if there was any truth to the allegation in the synopsis that he and Mr. MacMillan forced the complainant to have sex with them, he replied, “I … it cannot like it says there.” Det. Firmeth then asked him to tell him how it happened. Mr. De Jesus said, “It was all pure consent, it’s like I’m not going to go into detail, or, so pure consent, I didn’t disrespect her, I didn’t force her.” It is plain from this response that the accused not only understood what he was being asked, but he also knew that he did not have to answer the detective’s question.
[21] A few moments later, Det. Firmeth asked him about Mr. MacMillan’s involvement in the incident. He replied, “Again, nothing that’s related to Gavin I’m going to say.” Once again, it is plain from this response that the accused not only understood what he was being asked, but he also knew that he did not have to answer the detective’s question.
[22] Undoubtedly the presence or absence of a police caution communicating the right to silence to an accused is a factor in determining the voluntariness of a statement made by a person under arrest or detention, and, in many cases, an important one. However, even the complete failure to tell an accused that he or she has the right to silence is not determinative of voluntariness. (See Boudreau v. The King, 1949 CanLII 26 (SCC), [1949] S.C.R. 262; R. v. Fitton, 1956 CanLII 28 (SCC), [1956] S.C.R. 958; R. v. Esposito (1985), 1985 CanLII 118 (ON CA), 24 C.C.C. (3d) 88 (Ont. C.A.) (application for leave to appeal dismissed, [1986] S.C.C.A. No. 63; and R. v. Singh, 2007 SCC 48.) In this case, there was an explicit caution given to the accused, albeit not a textbook one, and I am satisfied beyond a reasonable doubt that he understood the caution and as a result understood that he did not have to answer the questions asked of him by the detective. Accordingly, I conclude that the accused understood his right to silence, and, leaving aside the argument that the statement is inadmissible because of Mr. De Jesus’s level of comprehension of the English language, the statement was made voluntarily.
[23] Returning finally to the argument about Mr. De Jesus’s English, I conclude that any deficiencies in his ability to speak and understand English fall well short of the threshold for exclusion. The accused’s understanding of and ability to communicate in the English language were very far from being so deficient that it was impossible for him to have understood the police or to have made a statement in English.
CONCLUSION
[24] I am satisfied beyond a reasonable doubt that the accused’s statement was voluntarily made and is admissible in evidence.
M. DAMBROT J.
RELEASED: October 1, 2019
COURT FILE NO.: CR-17-10000701-000 and CR-17-10000826-0000
DATE: 20191001
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
GAVIN MacMILLAN
– and –
ENZO DE JESUS CARRASCO
REASONS FOR DECISION
DAMBROT J.
RELEASED: October 1, 2019