COURT FILE NO.: CR-19-0180
DATE: 20191031
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Mr. Peter Léger, for the Crown
- and -
Ralph Rudowski
Ms. Jill Gamble, for the Defence
HEARD: October 21, 23 and 24, 2019
RULINGS
Validity of March 9, 2018 Telewarrant to Search Home of Mr. Rudowski
Admissibility of March 11, 2018 Statement of Mr. Rudowski
Sproat J.
VALIDITY OF TELEWARRANT
Introduction
[1] Mr. Rudowski is charged with the second degree murder of Janice West. A justice of the peace granted a telewarrant to permit the police to search Mr. Rudowski’s home for bloodlike substances. The defence challenged only the facial validity of the search warrant and so no evidence was presented apart from the Information to Obtain Telewarrant to Search (“ITO”).
The ITO
[2] I begin by summarizing the information in the ITO.
[3] Mr. Rudowski lived at 97 Division Street in the Municipality of South Bruce Peninsula. Ms. West lived next door at 101 Division Street. Both houses were rented from Ms. Wright. Ms. Wright indicated that Ms. West’s house had plumbing problems and Mr. Rudowski would bring water to her. She indicated Ms. West would typically stay up very late and wake up in the afternoon.
[4] Ms. Springer, who helped Ms. West by setting up and taking her to appointments, said that Ms. West had fallen two times in the previous two weeks.
[5] Ms. West and Mr. Rudowski attended a Salvation Army luncheon in Wiarton on March 6, 2018. Ms. West had no visible injuries at that time. Ms. West did have a bandaged hand. Mr. Rudowski told the Salvation Army officer that he got angry with Ms. West and threw a tea pot or cup at her and it cut her so that she required stitches.
[6] Ms. West’s uncle Mr. Johnson spoke to Ms. West and Mr. Rudowski, on speaker phone, at 7:53 p.m. on March 6, 2018. Mr. Rudowski and Ms. West were both intoxicated. Two weeks earlier Mr. Rudowski told Mr. Johnson that he almost killed Ms. West.
[7] On March 7, 2018 at 11:05 a.m. Ms. West was discovered deceased at her residence. She had extensive injuries, including multiple facial and scalp trauma causing bleeding, broken clavicle, fractured ribs, subarachnoid hemorrhage (blood on the brain), neck compression, multiple blunt trauma to arms and legs and vaginal/labia trauma. The investigators formed the opinion that the small amount of blood found at the scene was inconsistent with the injuries suffered. Further, blood was found on the bottom of Ms. West’s feet but there were no pools of blood that would account for this.
[8] On March 7, 2018 around 11:00 a.m. (in other words, shortly after Ms. West’s body was discovered) Ms. Wright called Mr. Rudowski when she saw a fire truck go to Ms. West’s residence. Mr. Rudowski told Ms. Wright that he thought that Ms. West had died. Ms. Wright understood from what Mr. Rudowski said that he was inside Ms. West’s residence at the time and that he had called 911. In fact, he was not at the residence and did not call 911.
[9] Mr. Rudowski was interviewed by the police on March 7, 2018. Mr. Rudowski’s statement included that:
a) He had seen an ambulance go to Ms. West’s but did not know at the time that she had died. Later he said that he saw the Coroner at Ms. West’s house.
b) He was at Ms. West’s on the evening of March 6, 2018 and they spoke to her uncle Mr. Johnson.
c) Ms. West cut herself with a tea kettle and required stitches.
d) He would bring hot and cold water to Ms. West and flush her toilet as she would not do that herself.
[10] When Ms. West’s body was found her manner of dress was, according to a witness, uncharacteristic. Ms. West was not wearing a bra. While she rarely wore jeans, she was wearing jeans that were obviously too big for her. While she typically always had socks on, sometimes two or three pairs, she had no socks. While she typically did not wear a belt, the pants had a belt which missed several loops.
[11] Mr. Rudowski has 46 criminal convictions from 1979 to 2018 including 9 related to assaults and uttering threats and 4 related to alcohol. He is categorized according to CPIC as presenting a high risk for future serious violent or sexual offending. Mr. Rudowski punched a childhood friend of Ms. West’s because he hugged Ms. West and kissed her on the cheek.
The Law
[12] The defence agreed with the legal principles summarized in the Crown factum as follows:
[25] A telewarrant, like any judicial authorization, is presumptively valid.
(i) R. v. Ballenger, [2013] O.J. No. 900 (Sup. Ct.) at para. 7
[26] The onus is on the Applicant to establish on balance of probabilities that the authorization was invalid (e.g. by demonstrating that the ITO contained insufficient grounds to reasonably believe that the Applicant’s residence would afford evidence).
(i) R. v. Nguyen, [2009] B.C.J. No. 341 (C.A.) at para 18
[27] The reviewing court must determine if the issuing judicial officer, acting reasonably and judicially, could have issued the warrant based on the information provided.
(i) R. v. Garofoli, [1990] S.C.J. No. 115 (SCC) at paras. 55-56
(ii) R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (SCC) at paras. 40-41
(iii) R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 (SCC) at para. 54
[28] The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing justice.
(i) R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 at paras. 84-85
(ii) R. v. Garofoli, [1990] S.C.J. No. 115 (SCC) at paras. 55-56
(iii) R. v. Ebanks, 2009 ONCA 851, [2009] O.J. No. 5168 (Ont. C.A.), at paras. 20-21, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 84, [2010] 1 S.C.R. ix
(iv) R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (SCC) at para. 40
[29] The standard of review was outlined by Watt, JA in R. v. Sadikov, supra at para. 84: “The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probably grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued.” [Citations omitted and emphasis added.]
(i) R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (SCC) at para. 40
(ii) R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 (SCC) at para 54
(iii) R. v. Garofoli, [1990] S.C.J. No. 115 (SCC) at para. 56
Analysis and Conclusion
[13] In accordance with the caselaw cited, the question is whether the justice of the peace could have issued the warrant. Put differently, was there reliable evidence that might reasonably be believed on the basis of which the warrant could have issued.
[14] Most of the information in the ITO was highly reliable being from independent persons. In my opinion, the issuing justice could have relied upon the evidence in the ITO and reasoned as follows:
a) Mr. Rudowski had a general propensity to violence as demonstrated by his criminal record and his unprovoked punching of a childhood friend of Ms. West’s because he hugged her and kissed her on the cheek.
b) Mr. Rudowski either had some animus toward Ms. West or was capable of being provoked to anger against her. This was evidenced by the fact that he assaulted her by throwing a teapot or cup at her cutting her wrist which required stitches. This was relatively close in time to her death as Ms. West was observed to have a bandaged hand at the Salvation Army lunch on March 6, 2018. It was also evidenced by the fact Ms. Rudowski told Mr. Johnson (Ms. West’s uncle), only two weeks prior to her death, that he had almost killed Ms. West. (I appreciate that Mr. Johnson told the police he did not take Mr. Rudowski’s comment seriously, however, on the totality of the evidence the justice of the peace could view it as being a credible admission.)
c) Mr. Rudowski and Ms. West were together and highly intoxicated the evening before her body was found. As a matter of common sense and experience, intoxication increases the risk of provocation and violent behaviour.
d) Ms. West was described as lonely and disinclined to speak unless she had been drinking. She had no car. She had fallen twice in the previous two weeks. She was, therefore, an unlikely candidate to leave her home alone after 8:00 p.m. in an intoxicated state.
e) Ms. West had no running water and there were no signs of a cleanup in her house. Ms. West was probably killed somewhere else, cleaned up and then returned to her house.
f) On the unlikely scenario that Ms. West left her house and went into the community an assailant who killed her there would have no reason to go to the trouble and risk of transporting her body back to her house.
g) In contrast, if Ms. West was killed in Mr. Rudowski’s house he would need to move the body, and this would be the shortest, easiest move to make. Mr. Rudowski would have the ability, without being detected, to move her body a distance of approximately 25 feet from his house to her house.
h) At approximately 11:00 a.m. on March 7, 2018 Mr. Rudowski told Ms. Wright he thought Ms. West was dead. That is an extremely improbable comment to make if Mr. Rudowski knew only that a fire truck had stopped at Ms. West’s house. It is, however, consistent with Mr. Rudowski knowing she was dead because he had killed her.
[15] On this evidence and with these lines of reasoning, in my opinion, the issuing justice of the peace could conclude that there were reasonable and probable grounds to believe that Ms. West had been murdered and that evidence of the offence would be found inside Mr. Rudowski’s house. As such, the application to quash the ITO, and exclude the evidence obtained pursuant to the search warrant, is dismissed.
[16] For the sake of completeness I add that, if I am wrong and the ITO could not properly have issued, I would have admitted the evidence.
[17] As to the three Grant factors:
a) Under the first inquiry, the police relied upon the authority of a judicial order. The police conduct was not deliberate or egregious. This militates in favour of admitting the evidence (See R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 99).
b) Under the second inquiry, Mr. Rudowski’s privacy interest in his dwelling militates in favour of excluding the evidence.
c) Under the third inquiry, the admission of the evidence would serve society’s interest in having this case adjudicated on the merits. This was physical evidence and the reliability of DNA analysis of blood is well recognized.
ADMISSIBILITY OF MARCH 11, 2018 Statement to Police
Introduction
[18] On consent there was a blended voir dire to determine:
a) Whether the Crown had proven the voluntariness of Mr. Rudowski’s March 11, 2018 statement to police beyond a reasonable doubt; and
b) Whether the defence had proven a breach of Mr. Rudowski’s s.7 Charter right to silence or his s. 10(b) right to counsel, on a balance of probabilities.
[19] The defence conceded the voluntariness of a March 7, 2018 statement Mr. Rudowski gave to the police.
Evidence of What Transpired Prior to Video Statement
[20] The Crown called four officers on the application to admit Mr. Rudowski’s statement:
a) Detective Constable Thompson who was involved in the arrest of Mr. Rudowski, unsuccessful attempts to reach his counsel of choice Jill Gamble and putting him in touch with duty counsel.
b) Detective Constable Serkowney who was involved in the arrest of Mr. Rudowski.
c) Detective Sergeant Schwass who was involved in providing medication to Mr. Rudowski prior to his questioning by police.
d) Detective Sergeant Byrne who conducted the questioning of Mr. Rudowski.
[21] Detective Sergeant Byrne was called in from the Tilsonburg O.P.P. detachment to question Mr. Rudowski and initially planned to do so soon after his arrest. Mr. Rudowski was arrested at 9:15 p.m. on the evening of March 10, 2018 after the police executed the search warrant and discovered large amounts of blood inside his house. Given the time of day the decision was made to get Mr. Rudowski his medication and allow him to sleep and eat and then question him the following morning.
[22] A log detailing overnight checks on Mr. Rudowski, approximately every 15 minutes, was admitted on consent for the truth of its contents. It recorded that Mr. Rudowski slept for most of the night.
Overview of Contents of the Video Statement
[23] The video of Mr. Rudowski in the interview room begins on March 11, 2018 at 9:06 a.m. At the outset Mr. Rudowski confirmed that he knew why he was in custody. He was advised of his right to counsel and to remain silent. Mr. Rudowski confirmed that he understood. In the preliminary discussion up to 9:42 a.m. Detective Sergeant Byrne told Mr. Rudowski on three occasions that it was his choice whether to speak to the police. For example, at page 16, “you don’t have to speak to me unless you want to”.
[24] Mr. Rudowski also confirmed that he had eaten and taken all of his regular medications. At page 19, prior to the questioning starting, he did refer to the fact he had taken a sleeping pill the night before and was a little drowsy. Soon after that he was provided with a cup of coffee.
[25] Detective Sergeant Byrne explained the efforts the police made to locate his counsel of choice Ms. Gamble including going to her residence. Mr. Rudowski confirmed he had spoken to duty counsel and he was satisfied with the advice given.
[26] At approximately 10:19 a.m. Mr. Rudowski began to make admissions indicating that he had assaulted Ms. West and then, when she appeared to be unconscious, attempted to revive her by CPR. The actual questioning by Detective Sergeant Byrne began at 9:42 a.m. Excluding breaks, the questioning took place over approximately 2.5 hours.
[27] In brief, the questioning proceeded as follows:
a) Pages 21 – 26: Mr. Rudowski answers questions about his relationship with Ms. West and the help he gave her.
b) Pages 27 – 28: Mr. Rudowski states that he believes Ms. West’s house and his house are cursed by the devil. He states that he had almost died in Ms. West’s house after smoking drugs.
c) Pages 29 – 48: Mr. Rudowski, without hesitation or objection, answers a series of questions about his children, Ms. West’s background and how her house was very dirty due to having up to 20 cats living in it. He denied throwing a teapot at her and said she cut herself accidentally. He said Ms. West had recently done things that angered him. Mr. Rudowski then talks about going to the Salvation Army luncheon with Ms. West, then to the liquor store and then to Ms. West’s where he drank alcohol and had a telephone conversation with Ms. West’s uncle Bob around 7:30 p.m.
d) Pages 49 – 52: Mr. Rudowski states that alcohol sets off his demons and when asked to continue says, “this is where I don’t know if I should talk anymore”. Detective Sergeant Byrne continues indicating that this is Mr. Rudowski’s chance to explain why it happened. Mr. Rudowski then says, “I can’t say no more … you know I was told not to”. Detective Sergeant Byrne responds, “And you understand that’s your choice”. Mr. Rudowski responds “yes”.
e) Pages 53 – 54: Detective Sergeant Byrne asks how it all came to a head that night and Mr. Rudowski says, “the law doesn’t want me to communicate with you all right because you’ll use it against me”. They then talk over one another but clearly Detective Sergeant Byrne is again referring to Mr. Rudowski’s right to remain silent as he says, “the law says that you have a right”. Detective Sergeant Byrne then refers to “the decision whether” which in context I take to be the decision to speak to the police.
f) Pages 55 – 58: Mr. Rudowski makes his first inculpatory statement, “...she’s a victim of maybe I grabbed her too hard”. Detective Sergeant Byrne interjects and tells Mr. Rudowski that “I want you to understand the decision to talk or not talk” and that “the only person that makes that decision is you”, and “that decision is entirely your decision”. Mr. Rudowski then went on to say that he “snapped”, and that Ms. West did things that angered him.
g) Pages 59 – 62: Mr. Rudowski is asked what happened that night and states “I can’t talk no more or I’ll incriminate myself”. Detective Sergeant Byrne tells him that he has a chance to explain and that the evidence is overwhelming that he did it, so the only question is why. Mr. Rudowski agrees that booze and demons are reasons why he snapped, and refers to the fact that “women are the demon” and that women had taken everything away from him. Mr. Rudowski then relates that he tried to perform CPR on Ms. West. Mr. Rudowski states, “I’m a holy man trying to help out these widows” and that “alcohol makes you so crazy”. Mr. Rudowski indicates this occurred at Ms. West’s house.
h) Pages 63 – 64: Detective Sergeant Byrne tells Mr. Rudowski about the large amount of blood found at his house, however, Mr. Rudowski says nothing happened at his house. Mr. Rudowski indicates that he threw out the clothes Ms. West was wearing.
i) Pages 65 – 69: Mr. Rudowski says he does not know if he should talk anymore. Detective Sergeant Byrne tells him “it’s your choice”. Mr. Rudowski refers to the fact that the lawyer told him not to talk as the police were nothing but liars and trickers. Mr. Rudowski says “I need a lawyer … I’d like to go home”, but then continues talking and explains “she was dying anyway ... she wanted home with her [deceased] husband Roy”. Mr. Rudowski complains about the banks and the government that put his money in trust.
j) Pages 70 – 75: Mr. Rudowski states that God had cursed Ms. West with no children. Mr. Rudowski says that he kicked her two or three times in the vaginal area and denies any sexual assault. Mr. Rudowski refers to his father being a government auditor who collected billions of dollars and says that his mother was a real estate agent.
k) Pages 77 – 87: Mr. Rudowski says that what killed Ms. West was the “power of the tongue and her life force just went like that”. He agreed he felt at peace “that this nightmare is finally over”. He refers to women as liars. Mr. Rudowski says that he wishes that he could have died and not Ms. West and that he feels terrible for what he has done. Ms. West “wanted to go” and “she had enough”. Mr. Rudowski said that he did not want to kill her.
l) Pages 88 – 95: Mr. Rudowski says he probably got blood on his clothes after. He said, “I just wanna get this over and dealt with – I know what I did”. Mr. Rudowski refers to liquor and financial stress and “it’s too much for my brain”. Detective Sergeant Byrne credits Mr. Rudowski for taking responsibility. Mr. Rudowski indicates that he wanted to get it off his chest, despite having been told to not say anything and that his Dad taught him that God sees everything, and you don’t get away with anything.
m) Pages 96 – 112: He did not go to Ms. West’s with a plan to kill her. Maybe it was the cat excrement everywhere that caused him to kill her. Mr. Rudowski refers to having tried to get help for Ms. West from the Mayor, her case workers and charitable organizations. Mr. Rudowski explains about Ms. West’s injuries and cleaning up after. After he knew Ms. West was hurt he offered to call an ambulance, however, she declined.
n) Pages 113 – 137: Mr. Rudowski indicates that he did not want to kill Ms. West but “wanted her to smarten up”. He had tried to get her water and fix things. Mr. Rudowski says that he brought a mop and bucket from his home to clean up at Ms. West’s and then disposed of the bloody water at his house. Mr. Rudowski said if he could speak to Ms. West he would say “I miss you very much” and “God forgive me”.
The Law
[28] Watt’s Manual of Criminal Evidence summarizes the general principles as follows:
§37.04 – Voluntariness
Commentary: A confession that affords relevant and material evidence in respect of its maker, D, will not be admissible unless P proves beyond a reasonable doubt that it was voluntary.
To decide whether a confession is voluntary, a judge must examine and evaluate all the circumstances surrounding the making of the statement. The approach is contextual. The evidence must satisfy the judge beyond a reasonable doubt of the voluntariness of the confession in order for the statement to be admissible.
The confessions rule is concerned with a broad definition of voluntariness. The predominant rationale for the rule, and the voluntariness requirement, is that involuntary confessions are more likely to be unreliable. The rule also protects the rights of the person charged without unduly limiting society’s need to investigate and solve crime.
Relevant factors for a trial judge to consider in deciding voluntariness include, but are not limited to evidence of
i. threats;
ii. promises;
iii. oppression;
iv. the operating mind requirement; and
v. police trickery.
The first four factors are not subject to a discrete inquiry, apart from the rest of the confessions rule. The inquiry into other police trickery is distinct because its more specific objective is to maintain the integrity of the criminal justice system.
A confession must also be the product of an operating mind. Persons who are in an hypnotic state, in shock after a motor vehicle accident, or in a state of extreme intoxication, for example, may not meet this requirement. The standard only requires, however, that D have a limited degree of cognitive ability. D must be able to understand what s/he is saying and to comprehend that the evidence may be used in proceedings against him/her. The confession must be the product of D’s free will exercising a choice whether to speak to a person in authority.
[29] In R. v. Whittle, [1994] S.C.J. No. 69 (S.C.C.) the accused was panhandling and startled passers-by leading the police to speak to him and discover there were outstanding warrants for his arrest for unpaid fines. He was arrested, appeared to be “very mentally unstable” and identified himself as schizophrenic. Whittle confessed to the police that he had murdered Frank Dawson. After the police confirmed that Dawson had died under suspicious circumstances Whittle was arrested for murder, advised of his right to counsel and cautioned. He spoke to counsel who testified that Whittle said there were voices in his head and that he needed to talk to the police to silence the voices. Contrary to legal advice he spoke to the police admitted to the murder. In the course of his statement he made bizarre comments including that he had other people’s brains, and that maybe someone else plotted murder and picked him to do it and that he had the idea to walk backwards to New Brunswick. Notwithstanding this evidence the court concluded that the statements by Whittle were voluntary.
[30] Sopinka J. for the court in Whittle stated:
30 The preoccupation of the common law and Charter cases in preserving for the suspect the right to choose has been in relation to state action. Did the action of police authorities deprive the suspect of making an effective choice by reason of coercion, trickery or misinformation or the lack of information? The issue in this case is whether, absent any conduct by the police, the suspect is deprived of the ability to choose by reason of mental incapacity. A finding of incapacity would exempt the suspect from participation in the ordinary processes of investigation.
38 In Nagotcha v. The Queen, [1980] 1 S.C.R. 714, the accused had been diagnosed as a paranoid-schizophrenic and contended that on that account his statement could not be admitted as voluntary. In delivering the judgment of the Court, Laskin C.J. stated that the fact of insanity does not determine admissibility of a statement. Without referring to it in terms of the operating mind test, the Court (at pp. 716-17) adopted the following statement from R. v. Santinon (1973), 11 C.C.C. (2d) 121 (B.C.C.A.):
In my view, the question of admissibility of a statement of an accused depends on it being established that it was free and voluntary in the limited sense above, of not having been induced or obtained either by fear of prejudice or hope of advantage exercised or held out by a person in authority. That rule must, I think, be qualified to the extent that, having regard to the infinite degrees of insanity, if such incapacity is shown that the accused, for example, is so devoid of rationality and understanding, or so replete with psychotic delusions, that his uttered words could not fairly be said to be his statement at all, then it should not be held admissible. [Emphasis added.]
Although Beetz J. was a member of the Court, no reference is made to Horvath, supra, nor to "awareness of what is at stake".
44 Although Hebert did not address the requisite mental element in respect of a person who exercised this right while insane, in my view the judgment defines the requisite mental element in comprehensive language so as to leave no reason for the exclusion of mental incapacity from it. At pages 181-82, McLachlin J. sums up with respect to the elements of the right:
The right to choose whether or not to speak to the authorities is defined objectively rather than subjectively. The basic requirement that the suspect possess an operating mind has a subjective element. But this established, the focus under the Charter shifts to the conduct of the authorities vis-à-vis the suspect. Was the suspect accorded the right to consult counsel? Was there other police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not?
54 On the basis of evidence which the trial judge accepted, the appellant's mental condition satisfied the operating mind test including the subjective element to which I have referred above. There was no obligation on the Crown to establish that the appellant possessed a higher degree of cognitive capacity. To the extent that the inner voices prompted the appellant to speak in apparent disregard of the advice of his counsel and to his detriment, because he did not care about the consequences or felt that he could not resist the urging of the voices, they cannot be the basis for exclusion. Inner compulsion, due to conscience or otherwise, cannot displace the finding of an operating mind unless, in combination with conduct of a person in authority, a statement is found to be involuntary. As for the Charter rights asserted, once the operating mind test is established, an accused is not exempted from the consequence of his or her actions absent conduct by the police "which effectively and unfairly deprived the suspect of the right . . ." (Hebert, supra, at p. 182).
[31] Watt’s Manual of Criminal Evidence summarizes the right to silence as follows:
§39.02 – The right to silence is engaged upon detention. It is based upon the fundamental concept that detainee has the right to choose whether to speak or remain silent. It erects no absolute prohibition against police questioning, however, even after counsel has been retained. It would seem that the critical issue in any case of custodial interrogation is whether police conduct has subverted the detainee’s constitutional right to choose not to speak to authorities. Conduct that does not: (1) deny the detainee the right to choose; or (2) deprive the detainee of an operating mind, does not breach the right to silence. The “operating mind” requirement involves a limited cognitive ability, in essence, the capacity to make an active choice.
[32] In R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48 (S.C.C.) Charron J. for the majority of the court stated:
27 As stated earlier, the right to silence, although now constitutionally entrenched, long pre-dates the Charter . The right to silence as a common law principle was recently affirmed by this Court in R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519. Stated broadly, the common law right to silence simply reflects the general principle that, absent statutory or other legal compulsion, no one is obligated to provide information to the police or respond to questioning. At para. 41, Abella J., writing for the Court, reiterated Lamer J.’s defining statement of the right in Rothman v. The Queen, [1981] 1 S.C.R. 640:
In Canada the right of a suspect not to say anything to the police . . . is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683.]
28 What the common law recognizes is the individual’s right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident. Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime.
[33] In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 McLachlin C.J. and Charon J., for a majority of the court stated:
[43] The authorities suggest that normally, s. 10(b) affords the detainee a single consultation with a lawyer. However, they also recognize that in some circumstances, a further opportunity to consult a lawyer may be constitutionally required. These circumstances, as discussed more fully below, generally involve a material change in the detainee’s situation after the initial consultation.
[44] The “single consultation” interpretation of s. 10(b) was forcefully expressed in R. v. Logan (1988), 46 C.C.C. (3d) 354 (Ont. C.A.). After reviewing the authorities, the court stated, at p. 381:
The clear implication in the judgment of Lamer J. in Manninen is that s. 10(b) confers the right, upon arrest or detention, to retain, instruct and be instructed by counsel before any statements of the accused are elicited. The words “upon arrest or detention” indicate a point in time, not a continuum. They do not deal with a continuing right to be reinstructed before every occasion on which the police obtain a statement from the accused. It is true that “retain” has a connotation of continuity (The Shorter Oxford English Dictionary (1973), p. 1813), but this is with respect to the engagement of services, i.e., the availability and subsequent resort to them when one wants to do so. It does not express a prerequisite to every subsequent elicitation of information. [Underlining added.
[34] While Sinclair does identify circumstances that may give rise to a right to a further consultation with counsel, none are applicable to the case of Mr. Rudowski.
Analysis and Conclusion
[35] Ms. Gamble indicated that her primary argument was that Mr. Rudowski did not have an operating mind and that, in all of the circumstances, his statement was not voluntary and his s.7 Charter right to remain silent was infringed. Her secondary argument was that Mr. Rudowski’s s.10(b) Charter rights were infringed when Detective Sergeant Byrne continued with his questioning after Mr. Rudowski stated that he did not want to make any further statement.
[36] Watt’s Manual instructs the trial judge, in deciding voluntariness, to consider the totality of the evidence including any evidence of threats, promises, oppression and the operating mind requirement. In this case Ms. Gamble fairly concedes there is no evidence of threats, promises or oppression.
[37] Mr. Rudowski was as well rested as could be expected in the circumstances. Mr. Rudowski was awakened just prior to the questioning. Mr. Rudowski did refer to having taken a sleeping pill the night before and feeling a little drowsy. He was given a cup of coffee. He was alert and responsive during the questioning. I am satisfied that he was not impaired by lack of sleep or medication.
[38] Detective Sergeant Byrne questioned Mr. Rudowski in a calm and non-aggressive manner. Mr. Rudowski made repeated references that demonstrated he knew he was charged with murder and was speaking to the police who could use anything he said as evidence against him. As such, Mr. Rudowski meets the test outlined by Sopinka J. in Whittle. He had the cognitive ability to understand what he was saying and that it could be used against him.
[39] Ms. Gamble argued that Mr. Rudowski’s references to demons; to the fact that he and Ms. West were cursed; to himself as a holy man; and to Ms. West having died by the power of the tongue, should be taken literally and are all indicative of Mr. Rudowski not having an operating mind.
[40] I begin by noting that Mr. Rudowski referred to demons as a reason he snapped not as influencing him at the time of his statement. In any event, it is not uncommon for someone struggling with issues like addiction to refer to having to battle their demons. Mr. Rudowski also referred to himself and Ms. West and her house as cursed. Again, someone who has a series of misfortunes may be referred to as cursed. I do not regard the references to demons and being cursed as indicating a belief in the supernatural.
[41] Mr. Rudowski also referred to Ms. West being killed by the power of the tongue. This appears to be a biblical reference. Proverbs 18:21, “Death and life are in the power of the tongue”. It is difficult to ascertain what he meant by this comment, although Mr. Rudowski makes other references to God in his statement. In watching the video, however, I saw no indication that Mr. Rudowski was at all detached from reality and not understanding fully what was happening.
[42] I interpret Mr. Rudowski’s reference to being a holy man to be simply a statement that he believes in God and helping people not that he is under the delusion he is a priest or minister.
[43] Ms. Gamble cited a number of statements in R. v. Armishaw; 2011 ONSC 5624 in which Langdon J. ruled that a statement was involuntary and inadmissible. In that case the accused indicated that he did not want to speak to the officer, however, the officer ignored this statement and conveyed the message that “resistance is futile”.
[44] While I take no issue with the reasoning of Langdon J. the facts in Armishaw were egregious and quite different from our case. Armishaw was, according to an expert, in the “extremely low to borderline” of intellectual functioning. Armishaw was charged with the second degree murder of an infant and the police falsely claimed to have scientific evidence proving that the infant had died as a result of being shaken. The police also denigrated the legal advice Armishaw had received.
[45] In the case of Mr. Rudowski I have no doubt that he understood that he could choose to remain silent. Nothing Detective Sergeant Byrne said conveyed the message that resistance is futile. Quite the contrary, when Mr. Rudowski made his first admission that he might have grabbed Ms. West too hard, Detective Sergeant Byrne interjected and reminded Mr. Rudowski that he could remain silent.
[46] Mr. Rudowski admitted beating Ms. West to death after about 30 minutes of questioning. He was certainly not worn down by relentless questioning.
[47] Mr. Rudowski, near the end of the interview, provided insight into his decision to speak to Detective Sergeant Byrne. Mr. Rudowski said that the truth sets you free; that he had wanted to get this off his chest and that his father had taught him that God sees everything and that you can’t get away with anything. While Mr. Rudowski at times expressed that he had been told not to say anything I am satisfied that he decided to do so for the reasons he himself explained.
[48] I am, therefore, satisfied beyond a reasonable doubt that Mr. Rudowski had an operating mind and that his statement was voluntary. For the reasons given I am also satisfied that here was no breach of Mr. Rudowski’s s.7 Charter right to remain silent.
[49] On the authority of Sinclair I am also satisfied that there was no breach of Mr. Rudowski’s s.10(b) Charter right to counsel. Every effort was made to contact Mr. Rudowski’s counsel of choice. Mr. Rudowski spoke to duty counsel and indicated that he understood the advice he received and was satisfied with it. Mr. Rudowski’s indication that he either was uncertain as to whether he should answer further questions, or his indication he did not wish to do so, did not oblige Detective Sergeant Byrne to suspend the questioning and facilitate a further consultation with duty counsel.
[50] In conclusion I am satisfied beyond a reasonable doubt that Mr. Rudowski’s March 11, 2018 statement to the police was voluntary and admissible. The defence Charter application to exclude the statement is dismissed.
[51] With respect to s.24(2) of the Charter, if I have erred, and if the statement was not voluntary and/or obtained by infringing Mr. Rudowski’s s.7 Charter right to remain silent, I would have excluded it. Mr. Leger fairly concedes that the Grant factors weigh in favour of exclusion and I agree. (See Grant at para. 89-98).
[52] Admitting a statement in such circumstances would harm the repute of the administration of justice. It would also violate Mr. Rudowski’s interest in liberty and autonomy. Further, the exclusion of the statement will do little to impede the case being tried fairly on its merits given the DNA evidence the police obtained pursuant to the search of Mr. Rudowski’s house.
Sproat J.
Released: October 31, 2019
COURT FILE NO.: FILE CR-19-0180
DATE: 20191031
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Ralph Rudowski
REASONS FOR JUDGMENT
Sproat J.
Released: October 31, 2019