COURT FILE NO.: CR-17-0000737-0000

DATE: 20191204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SINBAD MARSHALL

Craig Coughlan and David Steinberg, for the Crown

Mitchell Huberman and Christopher Hicks, for the Defendant, Sinbad Marshall

HEARD: October 21 and 22, 2019

R.F. GOLDSTEIN J.

Ruling on the admissibility of accused’s statement

[1] On November 11, 2015 a family member found Stella Tetsos in the basement of her home in Scarborough. She was dead. She had suffered numerous blunt force trauma injuries. She was 82 years old. The house had been broken into and ransacked. Toronto Police Service officers arrested Sinbad Marshall at 10:37 p.m. the next evening, November 12, 2015. He was in possession of some gold jewellery belonging to Ms. Tetsos when he was arrested.

[2] At 5:22 a.m. on November 13, 2015 police officers brought Mr. Marshall into an interview room. Detectives informed him that he would be charged with the second-degree murder of Ms. Tetsos and break-and-enter into her home. They subsequently questioned him about the break-in and the killing. Mr. Marshall told the police he had nothing to do with the killing of Ms. Tetsos. He explained that he purchased the gold from a crack user in Scarborough.

[3] The Crown seeks to admit the video of Mr. Marshall’s statement to the police. The issue in the case will largely focus on Mr. Marshall’s capacity to commit murder. There is no doubt that Mr. Marshall caused Ms. Tetsos’s death. The Crown wants to use the video to show the jury that Mr. Marshall’s capacity was unimpaired. The Crown also wants to use the statement to attack Mr. Marshall’s credibility, should he testify. The Crown argues that the statement was voluntary.

[4] The defence argues that the statement was not voluntary. The police officers overbore Mr. Marshall’s will. The defence further argues that the prejudicial effect of the statement outweighs the probative value.

[5] In my view, the Crown has demonstrated beyond a reasonable doubt that the statement was voluntary. The statement may be admitted subject to editing and instructions to the jury. The Crown’s application is allowed, for the reasons that follow.

BACKGROUND

[6] The police very quickly focused their investigation on Mr. Marshall. They conducted surveillance on him on November 12, 2015. Constable Darnley testified that he and Constable Sherby arrested Mr. Marshall at 10:37 p.m. Constable Darnley observed Mr. Marshall try to get rid of some rings. Constable Darnley seized the rings. A member of Ms. Tetsos’s family subsequently identified the rings. They belonged to Ms. Tetsos. Constable Darnley and Constable Sherby had no conversation with Mr. Marshall. They turned him over to Sgt. Riel (who was a constable at the time) and Constable Lambie. At 10:50 p.m. Sgt. Riel placed Mr. Marshall in the back of his police car. The in-car audio and video recording began at that time. At 10:56 p.m. Sgt. Riel informed Mr. Marshall that he was under arrest for second-degree murder and break-and-enter. Sgt. Riel informed Mr. Marshall of his right to counsel and asked if he wished to speak to a lawyer. Mr. Marshall did not. Mr. Marshall insisted that he had done nothing. He told the police that they should release him.

[7] Sgt. Riel and Constable Lambie then transported Mr. Marshall to 41 Division. They arrived at 11:07 p.m. and after a short wait drove into the sally port. The officers took Mr. Marshall from the sally port to the booking area. Sgt. Warner booked Mr. Marshall at 11:37 p.m. Constable Lambie asked for permission to conduct a Level 3 search for weapons or contraband. A Level 3 search is, in essence, a strip search. Constable Lambie indicated on the booking video that Mr. Marshall had outstanding charges of robbery, choking, and fail to comply with probation. Constable Lambie also indicated that Mr. Marshall had a criminal record that included convictions for violence and breaking and entering.

[8] On the booking video Mr. Marshall responded to the questions asked by Sgt. Warner. He provided his name, date of birth, age, and address. He said that he did not have any injuries nor was he on any medication. Mr. Marshall did state that he had smoked marijuana within the past few hours. He continued to insist that he had done nothing and should be released.

[9] Sgt. Warner asked Mr. Marshall if he had any mental health issues. Mr. Marshall stated that he had been diagnosed with “schizophrenia, depression, and bipolar”. He stated that he had been on medication for these conditions but did not take it anymore. He said that he used to be suicidal but was not going to harm himself.

[10] Detective Dawson from the Homicide Squad was assigned to the case. She did some research on Mr. Marshall prior to commencing the interview. She testified that nothing in the material she received about him raised a mental health concern.

[11] Sgt. Riel and Constable Lambie conducted a Level 3 search. They seized Mr. Marshall’s shoes. Police forensic officers wished to determine whether the shoes matched foot impressions at the crime scene. At 12:01 a.m. on November 13, 2015 the officers placed Mr. Marshall in an interview room. The room did not have audio or video recording equipment.

[12] At 12:29 a.m. on November 13 Detective Dawson (with Detective Sergeant Leahy, also from the Homicide Squad) entered the interview room. Mr. Marshall was lying on the floor. They recorded the encounter. Detective Sergeant Leahy explained that they were from the Homicide Squad. He indicated that Mr. Marshall was under arrest for second-degree murder and break-and-enter. Mr. Marshall kept insisting he wanted to go home and he had not done anything. Detective Sergeant Leahy told him more than once that was not going to happen. He stated that Mr. Marshall was not going to be released and that he was going to court in the morning. Detective Sergeant Leahy also gave him his rights to counsel. He gave Mr. Marshall the duty counsel number. He asked Mr. Marshall whether there was a particular lawyer he wanted to call. Detective Sergeant Leahy then gave Mr. Marshall the primary caution. Detective Dawson testified that the Homicide Squad made it a practice of always recording encounters with suspects. Mr. Marshall stated that he did not want to speak to a lawyer. Detective Sergeant Leahy said that because he was charged with murder, he strongly recommended that Mr. Marshall speak to a lawyer. He said he would facilitate that at any time he wanted. Mr. Marshall still declined to speak to a lawyer. This pre-interview lasted six minutes.

[13] The interview itself began at 5:22 a.m. on November 13. The interview was conducted by Detective Dawson and Detective Sergeant Leahy. Detective Dawson gave Mr. Marshall the secondary caution. Mr. Marshall’s cuffs were removed. He was wearing an orange jumpsuit. He spent much of the time with his head tucked into the suit. He sat for most of the interview but towards the end he started to lie on the floor. The officers did not react.

[14] Throughout the interview Mr. Marshall denied killing Ms. Tetsos. He insisted that he wanted to go home. The officers told him that would not happen. The officers asked about Ms. Tetsos’s jewellery. Mr. Marshall stated that he bought the jewellery for $50 from a dirty-looking white crackhead somewhere in Scarborough. He did not know where in Scarborough. He did not know the crackhead’s name.

ISSUES

[15] The defence position, broadly, is that Mr. Marshall did not want to speak to the police. He kept saying that he did not wish to give a statement and that he just wanted to go home. His will was overborne by the persistent police questioning and inducements that they offered. Either on their own or cumulatively, the police behaviours resulted in an involuntary statement.

[16] Defence counsel, Mr. Hicks, has not filed a Charter motion. The defence does not allege that Mr. Marshall’s Charter rights were violated. Instead, the defence argument is focused on the common law confessions rule. The defence simply argues that the Crown has failed to meet its burden of proving beyond a reasonable doubt that the statement was voluntary. The defence does not argue that Mr. Marshall did not have an operating mind.

[17] In their factum, Mr. Hicks and Mr. Huberman make five specific arguments, raising the following issues:

(a) Was Mr. Marshall offered inducements in exchange for the statement?

(b) Was Mr. Marshall’s will overborne?

(c) Did the delay in cautioning Mr. Marshall impact his ability to decide whether to speak to the police?

(d) Was Mr. Marshall immediately informed of the charge when he was arrested?

(e) Does the prejudicial effect of the statement outweigh its probative value?

ANALYSIS

[18] The Crown bears the onus of proving the voluntariness of a confession or statement of an accused person. The Crown must prove voluntariness beyond a reasonable doubt. The confessions rule is not confined to the Ibrahim formula of a lack of “fear of prejudice or hope of advantage” held out by a person in authority. An accused person’s statement is not admissible unless it is freely and voluntarily made in the broadest sense: R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3.

[19] An important concern driving the confessions rule is reliability. As Iacobucci J. points out at paragraph 47 of Oickle, an involuntary confession will usually be unreliable. There have been too many instances of false confessions that resulted in convictions that were ultimately found to be miscarriages of justice. The common law confessions rule is supposed to protect against false confessions. As Iacobucci J. stated in that paragraph:

The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

[20] This case is not one where Mr. Marshall has confessed to a crime. Rather, throughout the statement he insisted that he did not murder anyone. He provided a reason why he was in possession of Ms. Tetsos’s jewellery. That was not exactly an alibi, but it was an exculpatory explanation. The Crown’s theory is that Mr. Marshall committed the murder. On the Crown’s theory, therefore, Mr. Marshall’s insistence that he purchased the jewellery from an unknown crack user in Scarborough was a lie. I understand the defence will not dispute that Mr. Marshall was in Ms. Tetsos’s home, and that the issue for the jury will be his capacity – not the identity of the killer.

[21] The Crown’s position is that Mr. Marshall’s exculpatory statement was deliberately untrue. The Crown’s also wishes to use the statement to show that Mr. Marshall’s capacity was not diminished because he took steps to mislead the police. Thus, the danger of a false or unreliable confession does not arise here: see Oickle, at para. 57; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 29.

[22] The Supreme Court of Canada canvassed the reliability issue in the context of “Mr. Big” operations in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544. At paras. 70-71, Moldaver J., for the majority, noted:

The common law confessions rule serves to illustrate the importance of a trial judge's role in assessing reliability. The confessions rule has long concerned itself with the dangers posed by unreliable confessions (see, e.g., G. A. Martin, "The Admissibility of Confessions and Statements" (1963), 5 Crim. L.Q. 35, at p. 35). Under the confessions rule, we recognize that unreliable confessions made by an accused pose particular dangers, as juries often attach great weight to the accused's own words. When an accused falsely confesses to a crime, the risk of a wrongful conviction becomes acute. This Court recognized as much in Oickle, when it noted that false confessions have played an "important role" in cases where wrongful convictions have occurred (para. 36). Subsequent research has confirmed that risk. In 40 of the first 250 DNA exonerations in the United States, for example, the accused was found to have falsely confessed to the crime (see B. L. Garrett, “The Substance of False Confessions” (2010), 62 Stan. L. Rev. 1051.)

[23] The confessions rule thus guards against the danger of unreliable confessions by requiring the Crown to prove to a judge beyond a reasonable doubt that an accused's statement was voluntarily made. Where the Crown is unable to do so, the accused's statement is rendered inadmissible.

[24] Of course, this case did not involve a Mr. Big operation, but the general principles about the dangers of false confessions apply here.

[25] I do not wish to be taken as saying that simply because a statement is not a confession that it can be admitted into evidence. A statement made by an accused person to a person in authority, any statement, must be voluntary. The Crown still bears the burden of proving voluntariness beyond a reasonable doubt – the highest standard known to our law. I am also not suggesting that there should be a separate category carved out for exculpatory statements. R. v. Holmes (2002), 2002 45114 (ON CA), 62 O.R. (3d) 146 (C.A.) makes it clear that merely because an accused person maintains his or her innocence does not mean that his or her will was not overborne by the police questioning. In that case, the accused was charged with arson. The main issue was whether the accused started the fires. The Crown had failed to call evidence to explain a 16-hour gap while the accused was in police custody prior to the questioning. The subsequent statement was not a confession, but some of the accused’s statements placed him in the area of the fires. The Crown argued that since the accused maintained his innocence, the Court could infer that nothing improper had occurred during that 16-hour gap. Rosenberg J.A. did not accept that submission. He noted that the accused had admitted to other, potentially true inculpatory facts. The unexplained 16-hour gap was an important circumstance bearing on voluntariness

[26] A critical danger, however, driving the policy behind the rule is absent in this case. In my view I may consider it – cautiously – as a factor to be taken into account when determining whether an accused person’s will has been overborne. In determining whether the Crown has proved voluntariness beyond a reasonable doubt, I must take all of the circumstances into account. In this case, unlike in Holmes, the Crown has not failed to account for all of the time. As well, the Crown has not asked that I infer a lack of police oppression based on lengthy unexplained gaps in time or a lengthy interview.

[27] I acknowledge that a jury could conclude that Mr. Marshall is guilty if they determine that he lied to the police about how he obtained the jewellery. That is a real danger – after all, the jury could reason, what could be the motive behind such a lie? That danger is obviated by the fact that this is a reduced capacity case, not an identity case. In any event, the jury will be instructed as to how they should approach the use of the statement, after the evidence is heard and counsel have had the opportunity to make submissions at a pre-charge conference.

(a) Was Mr. Marshall offered inducements in exchange for the statement?

[28] Mr. Hicks argues that Mr. Marshall was induced to offer a statement. He says that the police offered a critical inducement – the promise that Mr. Marshall would be allowed to go home. He states that the police offered him that inducement knowing that Mr. Marshall had repeatedly stated his wish to go home. For example, Detective Sergeant Leahy stated (page 24 of the transcript):

LEAHY: Hey Sinbad, if you wanna (ph) get out of here, why don’t you uh tell us where you were this week, and we can follow up on that, we figure out where you were, and if you weren’t at the house at St. Clair and Birchmount area, we’ll begin to establish –

[29] As another example, Detective Sergeant Leahy stated (page 25 of the transcript):

LEAHY: Surely we don’t want somebody that didn’t commit a murder of an 82-year old woman sitting in a jail cell if they gotta do

MARSHALL: You have to let me go.

LEAHY: Exactly but you gotta help me to let you go cause right now it looks like maybe you may have been inside this house.

[30] Mr. Hicks argues that these are inducements on both an objective and subjective basis. Objectively, the police offered to release Mr. Marshall if he offered a statement. Subjectively, the defence further argues, it is reasonable to infer that Mr. Marshall believed that the police would let him go if he just answered their questions.

[31] I respectfully disagree. In my view, Mr. Marshall was not induced to make a statement. The police comments must be read in the context of the whole statement. On the face of it, Mr. Marshall provided an explanation (which on the Crown theory is false) because he believed that it would exculpate him. A fair reading of the transcript indicates that the police made it clear to Mr. Marshall that he wasn’t going anywhere other than to court the next day and that he would be charged with murder. The police made it clear that if he wanted to get out of custody in the larger sense by providing details that would clear him of the crime, then they would follow up on that.

[32] Indeed, the police made it very clear to Mr. Marshall several times that they would not release him. The first time Mr. Marshall stated that he wanted to go home Detective Dawson stated (page 6 of the transcript): “Unfortunately that’s not an option at this point.” On page 7 of the transcript, she stated:

DAWSON: You’re not going home, Sinbad, but if you just look up at me and then at least I’ll explain to you what’s going on and then uh and you, you can go to the cells and go to sleep, okay?

[33] Detective Dawson and Detective Sergeant Leahy both repeated several times that Mr. Marshall would not be getting out. There could have been no doubt in Mr. Marshall’s mind that he was not going anywhere that night. At page 35 of the transcript the following exchange took place:

LEAHY: - and if you tell me you bought the jewellery off some white guy, uh in front of some plaza well maybe there’s some video or something but you have to remember this person’s name. We’ll follow up on that.

MARSHALL: Yeah.

LEAHY: But you understand right now you’re being charged with murder of an 82-year old woman.

MARSHALL: You can’t charge me.

LEAHY: I can charge and we are charging you.

[34] The police are not forbidden from offering an accused person an inducement to speak to them. The line is only crossed when the inducement (alone or in combination with other factors) is enough to “raise a reasonable doubt about whether the will of the subject has been overborne”: Oickle, at para. 57.

[35] In my view, it is factually doubtful that the police even offered an inducement to Mr. Marshall, let alone one that leaves me with a reasonable doubt about whether he was induced to give the police a statement.

[36] In R. v. Backhouse (2005), 2005 4937 (ON CA), 127 C.R.R. (2d) 1, 194 C.C.C. (3d) 1 (Ont. C.A.), the suspect offered an alibi. As Rosenberg J.A. pointed out at para. 121, that was not the same as a promise of lenient treatment if the accused provided a statement:

It would be an odd result if police could not invite a suspect, who was protesting his innocence and was willing to speak to the police, to provide an alibi that could clear him of liability. That is what occurred here. During the investigation the appellant spoke to his lawyer on several occasions. He told the police that he was willing to talk, although not on video. He was protesting his innocence and offering up an alibi.

[37] In my respectful view Rosenberg J.A.’s comment applies here.

(b) Was Mr. Marshall’s will overborne?

[38] The defence argues that the combination of inducements and persistent questioning had the effect of overbearing Mr. Marshall’s will. Mr. Marshall said several times that he was “done talking” or did not want to talk to the police. He asserted several times that he simply wanted to go home. The defence points to these comments as having overcome Mr. Marshall’s will to keep silent.

[39] I respectfully disagree. There was no quid-pro-quo offered by the police: Oickle, at para. 57. The right to remain silent does not mean that the police must cease questioning the accused whenever he asserts that right: Singh, at paras. 42-44. The police were not obliged to cease talking to and asking questions of Mr. Marshall.

[40] I find that the circumstances of the interview do not indicate oppressive circumstances. The police did not deny Mr. Marshall food, sleep, or clothing. His clothing was taken from him for forensic analysis but he was given a standard jail jumpsuit. Detective Dawson asked Mr. Marshall several times if he was cold. She indicated that when he was arrested, they put him in a cell so that he could get some sleep before they questioned him. The interview was not lengthy. It was slightly less than forty minutes: it began at 5:22 a.m. and ended at 6:01 a.m.

[41] In my view as well, the police questioning was not threatening or menacing, and neither was their manner. It is true that Detective Sergeant Leahy was more aggressive than Detective Dawson, but that hardly constitutes oppression. I find that the police did not cross the line and overbear his will. If the police were persistent about anything, it was to obtain details from him about where and how he came to possess that jewellery.

[42] I do not agree that this case is similar to R. v. Mohammed, 2014 ONSC 1348, a case relied on by the defence. The accused was interviewed for 6 ½ hours between 9:30 p.m. and 4:00 a.m. the next day. He told the police that he was tired at 12:40 a.m. and invoked his right to silence. The accused had already been arrested in Ottawa and transported to York Region prior to the interview. The police continued to press him although he had not slept in over 24 hours. The Court found that the interview deteriorated into abuse. Respectfully, a 6 ½ hour interview under those circumstances is in no way comparable to the short 40-minute interview after Mr. Marshall was given the opportunity to first get some sleep.

[43] The defence also relies on R. v. Hankey, 2008 CarswellOnt 7961, [2008] O.J. No. 2548 (Sup. Ct.) and R. v. Davis, 2011 ONSC 5564, 249 C.R.R. (2d) 45. In Hankey, the accused stated that either he did not want to talk or wanted to speak to a lawyer over 60 times during the course of a three-hour interview. In Davis, the Court found that the accused had asserted his right to silence multiple times over the course of a three-hour interview. In my respectful view, those cases are distinguishable on their facts.

[44] This case is also distinguishable from R. v. Barges, 2005 47766 (ON SC), 2005 CarswellOnt 7463, [2005] O.J. No. 5595 (Sup. Ct.), also relied on by the defence. In that case, the police put various theories to the accused and asked for a comment. The theories set out various ways that the accused might have committed the crime. Glithero J. described these statements as “monologues”. He found that the police questioning of the accused was an example of the “Reid Technique”. That is a police technique that involves various types of questioning. Glithero J., adopting R. v. Minde (2003), 2003 ABQB 797, 343 A.R. 371 (Q.B.), described the aspects of the technique at para. 80:

• Direct positive confrontation — a positive assertion that the police know the accused is guilty.

• The putting of deceitful evidence to the accused — a factor which is not present here.

• Discussion of the accused's redeeming qualities so as to pave the way for him to admit some involvement, but with explanation.

• Displaying understanding and sympathy such as to minimize the moral fault of the accused's role.

• Condemning the role of others in order to lessen the responsibility of the interviewee.

• References to the theme that the community (and I add "family") is thinking bad things based on what they would know of the case — which would be lessened by the accused contributing his explanation as to what happened.

• Procuring the interviewee's attention by moving closer physically.

• Suggesting alternative explanations, one of which is worse than the other, thereby inviting the interviewee to opt for the lesser level of responsibility.

• The use of lengthy monologues which are designed to deflect attempts by the interviewee to deny or object.

[45] The police did not employ any aspect of the Reid Technique. There was no attempt to induce Mr. Marshall to agree with a police theory. There was no attempt to minimize Mr. Marshall’s role. The police did not express sympathy with his predicament as a means of manipulating him. There were no lengthy monologues setting out the police theory. The behaviour of the police in this case is in no way similar to the behaviour of the police in Barges.

[46] I am, therefore, not left in a state of reasonable doubt about the voluntariness of the statement due to Mr. Marshall’s will having been overborne.

(c) Did the delay in cautioning Mr. Marshall impact his ability to decide whether to speak to the police?

[47] The defence argues that the police failed to caution Mr. Marshall in a timely manner. The police arrested him 10:37 p.m. on November 12, 2015 and informed him of his right to counsel. Detective Sergeant Leahy cautioned him at 12:30 a.m. on November 13, 2015. Detective Dawson gave him the caution again and the secondary caution at 5:05 a.m., prior to commencing the interview. The defence argues that the delay of about two hours before the caution, and more than six hours before the secondary caution casts into doubt the voluntariness of the statement.

[48] I must disagree. The question is not one of timing. The question is one of understanding. I am not aware of a presumption that the police must promptly give the caution and secondary caution. Likewise, there is no presumption that a delay is unreasonable. At all times the key question is whether the suspect understands the nature of his or her rights such that the statement is voluntary.

[49] Moreover, a caution and secondary caution is not a right, like the right to counsel. A suspect is given the caution and the secondary caution so that he or she can understand that they are not required to give a statement, and the potential consequences if they do. The purpose of the caution and secondary caution is to facilitate the right to silence: Singh, at paras. 34-35; R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, at p. 193.

[50] The right to counsel is different. Section 10(b) of the Charter makes it clear that everyone has the right upon arrest and detention to retain and instruct counsel and be informed of that right. It is well-settled that the police cannot elicit evidence from a suspect until he or she has had a reasonable opportunity to exercise the right to counsel: Bartle, at p. 192.

[51] The critical point is that the accused person must understand a right so that he or she can make an informed choice about whether and how to exercise it: Hebert, at p. 177.

[52] When Detective Dawson gave Mr. Marshall the caution, it was for the second time. It strikes me as good procedure to administer the caution again prior to the interview. Furthermore, it also makes sense that the secondary caution not be given until the commencement of the interview. Detective Dawson’s secondary caution used this language:

DAWSON: No, okay. I’m just gonna (ph) uh – if, if you have spoken with any other officers while you’ve been here in connection with this matter I want you to understand that I don’t want that to influence you in anything that you may say, you understand that? Sinbad?

[53] The secondary caution is obviously designed to inform a suspect that he or she should not be influenced by anything another officer has said in deciding to speak to the police. Since the secondary caution was given prior to the interview, I am satisfied that it was given at an appropriate time.

[54] In my view, Mr. Marshall’s reactions indicate that he understood the caution and the secondary caution. Detective Sergeant Leahy spent a considerable amount of time with Mr. Marshall, trying to ensure that he understood the charges and his situation. Detective Dawson gave Mr. Marshall the caution and secondary caution again at the commencement of the video interview. He responded to Detective Dawson that he understood. He expressed frustration that Detective Dawson kept trying to explain things to him that he already understood.

[55] In Singh at paras. 32-33 the Supreme Court stated that a caution should be given when there are reasonable grounds to believe that a person has committed an offence.

[56] In R. v. Pearson, 2017 ONCA 389, the police believed that the accused was linked to two murders but did not have enough evidence to arrest him. The accused agreed to an interview. He was not cautioned. He came in for a polygraph test. He was told he could leave at any time. The Court of Appeal agreed with the trial judge that they were not required to caution him at the first interview. Pardu J.A. for the Court indicated at para. 19 that the absence of a caution is a factor when considering voluntariness. It is not determinative.

[57] The police, therefore, should caution a suspect when they have reasonable grounds to arrest. If they do not, then that failure is merely one factor on the voluntariness application. It is obvious that if there is no hard-and-fast rule about the absence of a caution, then there can hardly be a hard-and-fast rule about the timing of a caution.

[58] In R. v. Daley, 2015 ONSC 7169, the accused was arrested in his home at 6:34 a.m., taken to the police station, and lodged in the cells at 7:04 a.m. He was cautioned upon arrest, but not given a secondary caution at that time. A detective commenced an interview with the accused at 12:03 p.m. At that point the detective gave the accused the secondary caution. The defence argued that the delay impacted on voluntariness. Fairburn J. (as she then was) found that the statement was voluntary. She stated, at para. 30:

Mr. Kanagasivam was arrested at home. If he did not get his caution and right to counsel until at the police station, these were provided late. However, even if there was a delay in granting him his right to counsel and caution, I find that the delay had no impact on the voluntariness of his statement. This is particularly true given that the accused did not speak to the police until after he had been informed of and provided with his right to counsel.

[59] In my view, the same analysis applies here. The delay had no impact on voluntariness. It certainly does not leave me with a reasonable doubt.

(d) Was Mr. Marshall immediately informed of the charge when he was arrested?

[60] Mr. Hicks argued that Mr. Marshall was not told that he was under arrest for murder until 10:56 p.m. That was the first time the evidence reveals that Mr. Marshall knew he faced a murder charge.

[61] Respectfully, I do not think that is what the evidence shows. In fact, at 10:51 p.m., one minute after he was put in the police car, Mr. Marshall mentioned the fact that he was under arrest for murder. It is true that until 10:56 p.m. it was unclear what Mr. Marshall was told, but it does seem clear that he knew why he was under arrest prior to being placed in the police car. Although I am unable to say who informed Mr. Marshall that he was under arrest for murder, I am satisfied that he was told by a police officer why he was under arrest.

(e) Does the prejudicial effect of the statement outweigh its probative value?

[62] Mr. Hicks argues that there are portions of the statement that are highly prejudicial and have no probative value. Given the overall tenor of the statement – persistent questioning in the face of repeated assertions of the right to silence – admission of the statement would affect the fairness of the trial.

[63] I agree with Mr. Hicks that there are aspects of the statement that are too prejudicial to be shown to the jury. I find that these aspects must be edited from the statement. I disagree, however, that overall the prejudicial effect of the statement outweighs the probative value.

[64] As Moldaver J. stated in Hart at para. 109: “Probative value is concerned with ‘proof of an issue’, while prejudicial effect is concerned with ‘the fairness of the trial’.”

[65] The defence does not argue that the statement is not probative. It is clearly probative. Mr. Marshall knowingly lied to the police about how he obtained Ms. Tetsos’s jewellery. The statement could prove that Mr. Marshall had the capacity to commit murder, which is an issue in this trial.

[66] In R. v. Frimpong, 2013 ONCA 243, 1 C.R. (7th) 242, the Court of Appeal described evidence that is prejudicial at para. 18:

A trial judge can exclude evidence offered by the Crown where the prejudicial effect of the evidence outweighs its probative value. Evidence is prejudicial in the relevant sense if it threatens the fairness of the trial. Evidence may be prejudicial if it cannot be adequately tested and challenged through cross-examination and the other means available in the adversarial process. Evidence may also be prejudicial if there is a real risk that the jury will misuse the evidence (e.g. propensity evidence), or be unable to properly assess the evidence regardless of the trial judge's instructions. This latter form of prejudice must, however, overcome the strong presumption that jurors can and do follow the trial judge's instructions.

[67] I simply do not see how any of the dangers described by the Court of Appeal are present in this case. Any that are present can be mitigated through the use of a jury instruction.

[68] The defence relies on Barges as an example of evidence that was excluded because the prejudicial effect outweighed the probative value. In my respectful view, however, Glithero J. excluded the statement because of a factor that is not present here. He explained his reason at para. 97:

More importantly, and whether I am correct on the voluntariness issue or not, I would exclude this statement on the basis that its probative value is slight and greatly outweighed by the prejudicial effect which would flow if the Crown was allowed to place before the jury pages and pages of police theorization, which is either unresponded to by the accused or where his attempts to respond are often thwarted.

[69] Playing the statement simply does not engage that issue. It would not be an opportunity to place pages and pages of police theorization before the jury. The situation described by Glithero J. simply does not arise here.

DISPOSITION

[70] I find that the statement is admissible subject to editing. I am concerned about three things:

• First, there is reference to the fact that Mr. Marshall was on probation when he was arrested. That reference must be edited from the statement.

• Second, at one point the police ask Mr. Marshall about a bloody shirt found in his knapsack. The police found the shirt, which was wet. They seized it and sent it for analysis. It turned out that the shirt was not wet from blood. There is no suggestion that the police duped Mr. Marshall; they genuinely thought at the time that the shirt may well have been bloody. That reference must also be edited from the statement.

• Towards the end of the statement Mr. Marshall behaves oddly. He lies down on the floor. That part of the statement must be edited as well.

[71] The Crown may play the video subject to editing. I will hear further submissions from counsel about the instructions to be given to the jury.

R.F. Goldstein J.

Released: December 4, 2019

COURT FILE NO.: CR-17-0000737-0000

DATE: 20191204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SINBAD MARSHALL

RULING ON THE ADMISSIBILITY OF ACCUSED’S STATEMENT

R.F. Goldstein J.