CITATION: R. v. Floyd, 2019 ONSC 7322
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TYLER FLOYD
Accused
– and –
AMANDA MAILLOUX
Accused
Jason Neubauer, for the Crown
Allan Brass and Shira Brass, for Tyler Floyd
Kirstin McCrae, for Amanda Mailloux
Restriction on Publication
An Order was made under section 486.4 of the Criminal Code of Canada that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. This decision does not refer to the complainant or witnesses by name and may be published.
ruling on voluntariness
Roger j.
1A blended voir dire was conducted over slightly more than four days to determine the voluntariness of three statements made by the accused. Right after he was arrested, Mr. Floyd was read his right to counsel, cautioned, and after he was read the charges, uttered: “well, I’m going to jail for a long time”. As well, both accused were interviewed during the afternoon following their arrest.
2The accused were arrested together and interviewed separately on May 29, 2017.
3At the time of his arrest, Mr. Floyd was read his right to a lawyer, was cautioned, and was read the charges. He was also read a secondary caution by the officer who transported him to the Ottawa police station. At the time of her arrest, Ms. Mailloux was read her right to a lawyer, was cautioned, and was read the charges. She was also read a secondary caution by the officer who transported her to the Ottawa police station. Some of the involved officers who attended to the arrests on May 29, 2017, testified that they did not and are not aware of any police officer making any threat or promise to the accused. As well, these officers kept notes of their interactions with the accused, although with some gaps. Both accused exercised their right to speak to a lawyer and both spoke to a lawyer that afternoon prior to being interviewed.
4The accused, Ms. Mailloux was interviewed first starting shortly before 16:00, on May 29, 2017. Mr. Floyd, was interviewed next by the same police officer for slightly less than an hour, starting at about 17:12, on March 29, 2017.
5The general tenor of Ms. Mailloux’s interview is illustrated by the following exchanges:
Q: at p. 10: Ok, and give me one reason why I should believe you? Just one
A: I can say a million things right now but it’s pointless
Q: at p. 13: What would you say if I told you we see you running into the eh, either the Quality Inn or the Best Western looking for her and going to the front desk? Would you say that’s not true?
A: I think I’m gonna listen to my lawyer
Q: at p. 14: So, you’re ok with trafficking a 15-year-old
A: I never said that… why are you putting words into my mouth… putting a show on for the camera?
Q: at p. 15: You ever worked as an escort before?
A: That’s another question that’s really irrelevant to anything
Q: at p. 20: Are you recruiting the girls or is he recruiting the girls?
A: Nobody’s recruiting anybody like you don’t know what (inaudible)…at p. 25: I don’t want to say a word… and at p. 31: No, I don’t collect money from them
Q: at p. 33: Why did you go after her?...
A: You would… you’d just leave it there, you wouldn’t wonder if there okay?
Q: at p. 39: Ya she didn’t make these ads up
A: Well you know I think that she may have… I think that she may have posted even these by herself…, at p. 43: this is not what I’m involved in. I’m involved in waking up, going to fucking work…, at p. 45: I would never ever do that to a 15 year-old girl knowingly and fucking willingly trying to do this with a 15-year-old girl… this is not what I’m doing…, at p. 48: I’m not involved in anything, and at p. 55: I don’t know anything about anything else, I was fucking asleep until it went crazy
Q: at p. 57: Anything else you want to tell me before I take you to your cell
A: No
6The general tenor of Mr. Floyd’s interview is illustrated by the following exchanges:
Q: at p. 5: I’m a detective with Ottawa police so I need to know
A: that’s cool man… You have a job to do, I understand. You’ve been cool, everybody’s been cool you know. It’s an unfortunate situation. I wish it wouldn’t, can you show me what you got, let me know what’s going on here
Q: at p. 7: Alright. So let’s like cut the crap and tell me I’ve had, I’ve heard of it and all this shit like we’re way past that ok. Eh so I’ve got some Back-Page ads here
A: … I’ll tell you one thing about me, I ran a (landscaping) company my whole life… CRA has put a noose around my head
Q: at p. 12: You hit her?
A: You’ve got a lot of false information man
Q: at p. 13: Who is that?
A: I don’t even know her name…I wish you knew what actually happened… you know I’m not a piece of shit, honest
Q: at p. 14: So then tell me
A: But you know what, no matter I’m fucked am I my not?... it doesn’t matter if it’s true story, fake story, real story, real person, good person or bad person, I’m still fucked… I never asked anybody to do this against their will. I never held anybody against their will… She was doing it already before I even knew her, with S… S got her into that… that’s the truth… and she was at Highway Inn…ok? Fucking stranded slitting her wrist… she said she’s 18 years old
Q: at p. 15: So what did you do? You said ok come work with us?
A: No
Q: So how did she end up leaving with you guys?
A: Because she had nowhere else to go… she was getting thrown out. She wasn’t her room, it was S’s room… S left her there
Q: at p. 18: Ok, so then you resorted to this?
A: No… these girls are all working on their own, all over the plate that… you don’t think I asked that girl how old she was before I left anywhere with her…18
Q: at p. 19: Ok and, and that’s why you allowed her to work with you?
A: I allowed her to come with me out of town because there was nowhere else for her to go because S had abandoned her there and she was slitting her wrists…ok she was starving, and I bought her some food… That’s the way she works, that’s what she does to make money. I didn’t tell her to do that… she self mutilates all the time… she said she was gonna kill herself because she was left there (at the Highway Inn) … all I do is help out people man… You want somebody to help you, I’ll get you fucking 4 fentanyl dealers straight off the street ok. I’m not a fucking snitch but when I’m put in this predicament for helping other people out, you want fucking help let’s work together. I’ll get you every piece of shit fucking up the city right now causing people to die… I don’t go around trying to trick girls into a relationship… and then force them in (inaudible, p. 21)
Q: at p. 22: … You picked up J
A: I don’t know about those, you tell us to be honest with you. They didn’t meet her at the Highway Inn, yes, I did
Q: Then you made your way all the way to Barrie eventually?
A: Yes I did
Q: Ok why did you beat her in Barrie?
A: I didn’t beat her in Barrie… It’s not even like that man, it’s not like that… she hit me ok?... she hit me, she came at me like I was her fucking group home worker ok and wanted to beat me up… I defended myself, straight the fuck up… I didn’t beat her up
Q: at p. 24: So how much money did you end up losing off this whole deal?
A: probably $100 – $200
Q: And so how much money did she bring in? Because this trip probably cost you about $700, right?
A: Ya she (inaudible) may be $400 and she kept most of it anyway because she needed to eat. She needed to take care of herself
Q: And she was buying her dope too at the same time
A: She was buying her dope, she was buying everything she needed man
Q: at p. 25: So how much money did she end up giving you?
A: Probably (sigh) anything we got… anything that she made was spent like food, room and, and her stuff that she needed on herself…ok? It’s not like I was sitting there and saying ok ya here, now give me your money and I’m gonna fill my pockets, bah, bah. I’m eh, you know what I got arrested with, $5 fucking dollars. That’s what I got arrested with ok? Ya sure and what’s going on they, that you’re saying here sure paint me to be an arsehole. What I am is just a fucking idiot that gets a rotten sock in the wrong place at the wrong time helping the wrong people ok. Because now I can’t give a job to a guy that’s fucking cracked out on the street and try to fucking help him out… I’m not forcing anybody to do nothing (p. 27)
Q: at p. 28: Why did Amanda run after her when she ran out of the room?
A: Why? I don’t know, make sure she was ok… man she came at me… honestly when somebody comes at me, I black out-of-control. Nobody does that… you know, I’m fucked. I’m fucked (inaudible)
Q: at p. 29: Were you out there recruiting girls or
A: No… never… you’ve been cool with me (at p. 30)
Q: at p. 34: Eh so ok who posted her ads, was it Amanda or you?
A: They posted their own ads man… the girls posted their own ads… I may lend them money to get bit coin, pre-paid card… you know I don’t try to get people involved in this shit man. They’re involved in it already… no I basically present, I basically offer her an opportunity for a girl to get away from all the bull shit ok… if me and her are going out of town to go and, she as going to strip, and I’m gonna go hang out with friends…ok we have a hotel room, we already have a room. You know why are you gonna go do car calls on the street (p. 35) …what’s the percentages, there’s is no percentage. Give me what you’re happy with and if you appreciate being helped out, I appreciate something every once in a while, too. If you don’t appreciate it then move on, that’s fine, I don’t care (p. 36) … nobody’s forced against their will
Q: at p. 36: … confinement…
A: No that’s bullshit, that’s bullshit, that’s absolute fucking bullshit. Anybody is free as a person as it go. You know what the problem is, is they were going to a shit hole fucking motel
Q: at p. 39: … Why did Amanda post these ads?
A: Because she was asked to post the ad… the girls asked
Q: at p. 39: So, and what do you guys get out of this?
A: I told you already… of course they cover their expenses...ok? If were gonna stay in a hotel room…ok and this hotel’s $80…ok if they chip in $40 towards the room, feel free to do whatever you want in that room man… I don’t care if there’s 2 bed… the girl was a prostitute… the girls’ free to do whatever she wants… I didn’t say Amanda posted the ad, I said the girls asked to be posted. The girls are posted, the girls are posted for free and (inaudible)… My lawyer told me to say nothing (p. 41) … do you know why S calls you because she was working for S ok… and then they all dumped it on me… because nobody knew she was 15 (p. 42)
Q: p. 44: Ok dude so, who posted these ads?
A: You want fentanyl dealers or not
Q: No, I want the truth about the ads first. Who posted the ads?... So, who posted these ads? That’s all I want to know
A: Why does it matter?... no but you tried to pull me in some bullshit (p. 51) …you already got my girl to sell me out right? Now you’re trying to get me to sell her out (p.51) …the truth is ok that both me and her tried to help fucking girls in distress… I was presented the opportunity to work with these people, I didn’t ask, ask nobody. They asked me (p. 52)… can I come with you, you guys are travelling doing your thing, having fun and…ya if you don’t want to work with me, you don’t want nothing to do with me, you think I’m a piece of shit…ya so how do we do something with this? What do I got to do? I’m talking to you. If I wanted (inaudible) if I didn’t think I could make a deal with you, where does (inaudible) kept my mouth shut (p. 53)
Q: at p. 53: You fix what was wrong, what you did wrong once that’s done and dealt with
A: aha
Q: Then after that me and you can become best friends
A: at p. 55: No, I feel like (inaudible) I just wish that you had the whole book to read instead of just talking… It doesn’t matter because it doesn’t affect me at all. All it affects is implicating me in the fucking bullshit… she was already a prostitute…with S
Q: at p. 56: and the other day she ended up prostituting with you and Amanda… Do you see the problem?
A: Ya
7The accused are both charged with the following offences: distribution of child pornography; advertising sexual services; receiving a material benefit from sexual services; recruiting a person under the age of 18 to provide sexual services; recruiting for the purpose of exploitation; and exercising control for the purpose of exploitation a person under the age of 18. Mr. Floyd is also charged with confining a person, and assault causing bodily harm. These charged offences are respectively under the following sections of the Criminal Code: s. 163.1 (3); s. 286.4; ss. 286.1 (2) and 286.2 (2); s. 286.3 (2); s. 279.01 (1); s. 279.011 (1); s. 279 (2); and s. 267 (b).
8Mr. Floyd argues trickery, promises, oppression, and denigration of the role of his defence lawyer. Ms. Mailloux argues trickery and oppression.
Issue
9The issue is whether the statements given by the accused were voluntary.
Analysis
10Any statement made by a person to the police will not be admissible in evidence unless it is proven by the Crown, beyond a reasonable doubt, to be voluntary (see R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500).
11The test for voluntariness is established in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 at paras. 57-66: whether an accused person’s will in choosing whether or not to speak to the police is overborne by improper police promises or threats, oppressive circumstances, or whether the police employed such trickery that would shock the conscience of the community.
12This rule addresses concerns about the reliability of confessions and the dangers of false confessions; it protects an accused’s rights without unduly limiting society’s need to investigate and solve crime (Oickle, at para. 33).
13The application of the confession rule requires a contextual approach that considers all relevant factors to assess whether the statement was made (1) without threats or promises by a person in authority, (2) in an atmosphere free of oppression, (3) by an accused with an operating mind, and (4) without impermissible police trickery that would shock the community (Oickle at paras. 47-67; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at para. 35). In making that decision, a court should consider the circumstances of the confession or statement, taking into account all relevant factors outlined above, and ask if it is left with a reasonable doubt as to voluntariness, respecting the need to protect the rights of the accused and society’s need to investigate and solve crimes.
14Having considered all the circumstances relating to the arrest, transportation, detention, and interview and statements made by the accused on May 29, 2017, I find that the Crown has proven beyond a reasonable doubt that all three statements made by the accused (two by Mr. Floyd and one by Ms. Mailloux) were voluntary. My analysis follows.
Utterance by Mr. Floyd
15The arresting officer testified that he made a note as to what Mr. Floyd had told him at the time of the arrest. During his cross-examination, the arresting officer was not challenged about the accuracy of this note and of his recollection. The accused did not testify on this voir dire nor did they offer any evidence to challenge or undermine what the arresting officer did and noted about what Mr. Floyd said immediately following his arrest. It is therefore essentially unchallenged that Mr. Floyd made the alleged utterance: “well, I’m going to jail for a long time”. The circumstances simply did not allow for this utterance to be recorded.
16The evidence of the arresting officer establishes, beyond a reasonable doubt, that Mr. Floyd made the above utterance voluntarily (there was no threat, promise, impermissible trick or oppression; it was a rather spontaneous statement by Mr. Floyd). The above utterance is therefore admissible.
Trickery
17Mr. Floyd raises many arguments about being tricked by the interviewing police officer, including: the officer putting his badge aside and saying that they were talking man-to-man, the officer lying about what Ms. Mailloux had allegedly said, and the officer saying “when” instead of “if” when talking about Mr. Floyd’s eventual release. However, none of the tricks used by the investigating officer would shock the community. Moreover, when the tricks used by the investigating officer are considered together, it is apparent when watching the video of this interview that Mr. Floyd had an operating mind, that he spoke voluntarily to the interviewing officer, and that he was not tricked into making an untrue statement. As well, Mr. Floyd was not improperly offered leniency when the officer indicated that “this is not a life sentence”; this comment did minimize the seriousness of the charges.
18Ms. Mailloux argues, amongst other things, that she was tricked when the interviewing officer referred to police video that he had not seen and referred to Mr. Floyd having been interviewed first and having tossed her to the lions - “what do you think Tyler said to us?” Similarly, I find that these tricks would not shock the community. Moreover, throughout the interview, Ms. Mailloux appears in control and selective of what she disclosed to the interviewing officer. Indeed, none of the alleged tricks precipitated a confession by Ms. Mailloux. Similarly, when watching the video of her interview, it is apparent that Ms. Mailloux was not tricked into making an untrue statement.
Oppression
19Mr. Floyd argues oppression, including: the role of his defence counsel was denigrated by the interviewing officer, he was not offered medication (he was wearing a cast on his arm), he was bare feet, and the notes of the involved officers are incomplete, all of which he argues raises a reasonable doubt. Ms. Mailloux argues oppression because she wanted to return to her cell and was repeatedly denied this request; the officer tried to demean her by referring to her stage name and by asking if she had been an escort before, by talking to her after the interview with the investigating officer for which he has no notes, and by the officers failing to keep a full record of their conversations with the accused.
20However, it is apparent from watching the video of the interview of each of the accused that there was no atmosphere of oppression and that neither was deprived of their free will. The Crown called witnesses and provided enough evidence to convince me, beyond a reasonable doubt, that there existed no oppressive circumstances that could have overborne the will of the accused; a minute by minute replay is not required for the Crown to meet its onus.
21Mr. Floyd appeared comfortable during the interview and never asked for his medication. His boots were removed as part of police protocol and he was offered alternative footwear. He did not appear to have been cold or to have been uncomfortable, to the contrary. He said at least twice during his interview that police officers, including the interviewing officer, had been “cool”. He repeatedly stood his ground. He had an agenda and he prolonged the interview to pursue a deal with the interviewing officer, not the other way around (I will come back to this). The alleged denigration of the role of defence counsel did not rise to the level of impacting Mr. Floyd’s free will. Rather, these statements were made to Mr. Floyd by the interviewing officer to make it clear that the decision to talk or not to talk was that of Mr. Floyd because he was in the interview room, detained and facing these charges, not his lawyer. These statements (“Because you’re in this room, not your lawyer… You’re here, tomorrow your gonna face the judge. Your lawyer goes home and sleeps at night, you don’t”), in the context of this interview, did not denigrate the role of defence counsel.
22The law is clear that the right to silence does not mean that an accused has the right not to be spoken to by police, and the common law recognizes the importance that police interrogations play in the investigation of crimes (Singh, at para. 28). The interview of Ms. Mailloux was brief, and the interviewing officer quite properly pursued his interrogation of Ms. Mailloux. Again, a minute by minute record of every police interaction is not required for the Crown to satisfy the court that it has met its onus. Although I accept that Ms. Mailloux was spoken to “off the record” by the interviewing and investigating officers, this occurred after her recorded police interview and it therefore could not have had any impact on the voluntariness of her police recorded interview. This “off the record” conversation was also well explained by the interviewing officer during the voir dire, and it does not raise any reasonable doubt about the general sufficiency of the record proven by the Crown. I arrive at this latter conclusion because the evidence of the officers who testified on the voir dire was clear, and convincingly established the absence of oppression. I also found the argument made by Ms. Mailloux speculative considering the evidence presented by the Crown and the absence of any evidence of a connection between the recorded statement and the subsequent unrecorded conversation. I also disagree with the arguments of Ms. Mailloux that an atmosphere of oppression resulted from the interviewing officer’s demeaning comments towards her. Ms. Mailloux was smart and alert during her interview, and at no time did she appear to be deprived of her free will. On the contrary, she responded smartly to any inappropriate question.
23Both accused were read all the charges against them at the time of their arrest, both spoke to their lawyer prior to the interview, and both should therefore have been aware of the reasons for their detention. The interviewing officer was not required to repeat everything that had already sufficiently been done by the arresting officers, for the Crown to meet its onus. Consequently, it is immaterial in the circumstances of this case whether the interviewing officer did or did not read all the charges to the accused; the accused were sufficiently made aware of their jeopardy.
Promises
24Mr. Floyd essentially argues that the interviewing officer indirectly made a promise because he never said that a deal was off the table. However, this argument is unconvincing because it was Mr. Floyd who repeatedly sought to make a deal with the interviewing officer. The interviewing officer was interested in obtaining the truth from Mr. Floyd. He made it clear to Mr. Floyd that he had plenty of informants, that he did not need another, and that what he wanted to know was who posted the ads (p. 45). However, Mr. Floyd held his own (“you already got my girl to sell me out right? now you’re trying to get me to sell her out”, at p. 51). At p. 51 of the notes of the interview, it is Mr. Floyd who sat down, intending to continue with the interview for the purpose of trying to make a deal with the interviewing officer. The officer said: “Ok, you ready to go?”, but Mr. Floyd pursued his efforts at trying to make some deal. The officer made it clear during the interview (and during his testimony at trial) that any role by Mr. Floyd as an informant would be considered separately. Moreover, and in any event, this occurred at the end of the interview such that there is no connection between what was said at p. 53 (“then after that me and you can become best friends”) and the preceding interview.
Conclusion
25Considering all the evidence and the arguments raised by the accused, I conclude that the Crown has established, beyond a reasonable doubt, that the accused’s statements were voluntary. Consequently, all three statements are admissible.
Mr. Justice Pierre E. Roger
Released: December 17, 2019
CITATION: R. v. Floyd, 2019 ONSC 7322
COURT FILE NO.: 17-RA19529
DATE: 20191217
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
TYLER FLOYD
Accused
– and –
AMANDA MAILLOUX
Accused
ruling on voluntariness
Roger J.
Released: December 17, 2019