COURT FILE NO.: 7998/19
DATE: 2019-12-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
W. Trent Wilson/Robert Skeggs, Counsel
the Crown
Respondent
- and -
JOHN PINE and RONALD BARON and
Tania Bariteau, Counsel for J. Pine
WILLIAM ROSS
Kenneth G. Walker, Counsel for R. Baron
C. Bruce Willson, Counsel for W. Ross
Applicants
HEARD: December 17, 2019
VARPIO J.
REASONS ON APPLICATION TO EXCLUDE STATEMENT OF RONald BARON
[1] This is an application by the accused, Mr. Ron Baron, to have his statement to police excluded from evidence as being both involuntary and procured as a result of a Charter breach. Mr. Baron was arrested on October 23, 2017 for his involvement in a home invasion robbery that occurred on September 22, 2017.
[2] Based upon the evidence, I accept that the statement was made involuntarily in that it was made as a result of an inducement made by Sgt. Crema on October 24, 2017. I do not find that Mr. Baron’s section 10(a) and/or 10(b) Charter rights were infringed prior to the taking of the statement.
FACTS
[3] The facts regarding the home invasion have been described by me in another decision and they need not be repeated here (2019 ONSC 7531). In 2019 ONSC 7531, I excluded items seized by police as a result of Charter breaches.
[4] On October 23, 2017, Mr. Baron was arrested by Cst. Ryan Lillington outside a residence in the City’s west end. Upon arrest, he was acting erratically and Cst. Lillington was required to point his taser gun at Mr. Baron. Cst. Lillington advised Mr. Baron that he was going to be arrested based on outstanding warrants. The officer’s notes did not, however, indicate that he specifically advised Mr. Baron of the charges he was facing. The officer testified that it would have been his normal practice to advise Mr. Baron as to which precise charges he was facing.
[5] On that day, Mr. Baron was taken to the station where he was initially interviewed by Sgt. Crema. Sgt. Crema testified that he believed that Mr. Baron had spoken with counsel prior to being interviewed. Sgt. Crema asked Mr. Baron if the latter knew what charges he was facing. The following exchange occurred:
Crema: … Umm, Ron you understand why you’re here?
Baron: Yeah, they said home invasion and shit.
[6] Sgt. Crema determined that Mr. Baron was not able to conduct an interview in that he was obviously under the influence of drugs.
[7] The next day, Sgt. Crema interviewed Mr. Baron again. Mr. Baron was wrapped in a blanket without a shirt on. He was clearly suffering from some drug-related issues as he rocked back and forth, seeming to gain and lose focus. Mr. Baron indicated that he had taken both cocaine and crystal meth the day before.[^1]
[8] During the interview, Sgt. Crema described the charges and described the evidence as against Mr. Baron. Mr. Baron advised that he had spoken with counsel. Mr. Baron was asked if his fingerprints were going to be on any items seized from the trunk of a red Ford Fusion that Mr. Baron had been driving. Mr. Baron indicated that he did not believe that his finger prints would be found on the items seized as a third party had put the guns in the car. Mr. Baron indicated that he did not know what to do. The following exchange then occurred:
Crema: I just wanna understand Ronnie, like, if, if, if you got somethin’ that’s got a hold of you there and that’s what causin’ all this then, you know, that’s somethin’ that we can tell the crown and the court about.
Baron: What do you mean?
Crema: Well, if, if, if you’re, if this, all these offences are being fueled by an addiction, you know, then that’ll help them understand what’s going on a little bit better and that’ll potentially change their course of action, right? But if, you know, if it comes back that all this stuff happened just cause you don’t give a fuck then…
Baron: No, I wish. I wish it stupid like that. A drug addict. [Emphasis added.]
[9] Sgt. Crema testified that his reference to “potentially chang[ing] their course of action” was not an inducement but was simply Sgt. Crema’s belief that the Crown and the Court should have all the facts at their disposal prior to making any decisions.
POSITION OF THE PARTIES
[10] Mr. Baron submitted that he was never advised of the nature of the charges he was facing. As such, he did not understand his jeopardy. Accordingly, he should have been read his rights to counsel again by Sgt. Crema in the second interview and been given the chance to speak with counsel when he understood his jeopardy. Accordingly, his section 10(a), 10(b) and 7 Charter rights were infringed.
[11] Mr. Baron also submitted that the above-noted exchange with Sgt. Crema on October 24, 2017 was an inducement such that anything that follows is involuntary.
[12] The Crown obviously took a different position.
ANALYSIS
[13] It is trite law that an accused must prove a Charter breach on a balance of probabilities. It is also trite to state that an accused has the right to understand her/his jeopardy prior to speaking with counsel in order to make the right to counsel is meaningful: R. v. Borden, 3 S.C.R. 145. I need not go through any more analysis of this right in so far as the evidence does not suggest that Mr. Baron failed to understand his jeopardy. In fact, on October 3, 2017, Sgt. Crema felt that Mr. Baron was under the meaningful influence of drugs. Mr. Baron indicated on that day that “they [presumably police] said [he was under arrest for] home invasion and shit”. This evidence, therefore, proves that Cst. Lillington told Mr. Baron of the charges he was facing such that the accused understood his jeopardy when he spoke with counsel. There is, therefore, no Charter violation.
[14] With respect to voluntariness, however, the Supreme Court of Canada in R. v. Oickle 2000 SCC 38, [2000] 2 S.C.R. 3 stated at paras. 48, 49 and 57:
This is of course the core of the confessions rule from Ibrahim, supra. It is therefore important to define precisely what types of threats or promises will raise a reasonable doubt as to the voluntariness of a confession. While obviously imminent threats of torture will render a confession inadmissible, most cases will not be so clear.
As noted above, in Ibrahim the Privy Council ruled that statements would be inadmissible if they were the result of “fear of prejudice or hope of advantage”. The classic “hope of advantage” is the prospect of leniency from the courts. It is improper for a person in authority to suggest to a suspect that he or she will take steps to procure a reduced charge or sentence if the suspect confesses. Therefore in Nugent, supra, the court excluded the statement of a suspect who was told that if he confessed, the charge could be reduced from murder to manslaughter. See also R. v. Kalashnikoff (1981), 1981 CanLII 325 (BC CA), 57 C.C.C. (2d) 481 (B.C.C.A.); R. v. Lazure (1959), 1959 CanLII 513 (ON CA), 126 C.C.C. 331 (Ont. C.A.); R. J. Marin, Admissibility of Statements (9th ed. (loose-leaf)), at p. 1–15. Intuitively implausible as it may seem, both judicial precedent and academic authority confirm that the pressure of intense and prolonged questioning may convince a suspect that no one will believe his or her protestations of innocence, and that a conviction is inevitable. In these circumstances, holding out the possibility of a reduced charge or sentence in exchange for a confession would raise a reasonable doubt as to the voluntariness of any ensuing confession. An explicit offer by the police to procure lenient treatment in return for a confession is clearly a very strong inducement, and will warrant exclusion in all but exceptional circumstances.
In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212, particularly apt:
Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.
The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise. [emphasis added]
[15] The Crown submitted that Sgt. Crema’s statement to Mr. Baron was “close to the line” with respect to whether Mr. Baron was induced into confessing. When one examines Sgt. Crema’s testimony and Mr. Baron’s statement, Sgt. Crema’s utterance that, “that’ll potentially change their course of action, right” is patently a quid pro quo. Even if I accept Sgt. Crema’s testimony that this expression was not intended to act as a quid pro quo, it is clear that his words are telling Mr. Baron that confessing to a drug-fueled crime will lessen any sentence imposed. Implicit within such a statement, of course, is the acknowledgement that Mr. Baron committed the crime. Accordingly, the impugned statement undoubtedly held out the hope of advantage and caused Mr. Baron to give a confession.
[16] The Crown has not, therefore, proven beyond a reasonable doubt that the portion of the statement given after the inducement was voluntary. That portion of the statement uttered after the inducement is therefore excluded from evidence.
[17] It was not argued that Mr. Baron was under duress or threatened or otherwise influenced by police. Accordingly, I am satisfied beyond a reasonable doubt that the opening portion of the statement was given voluntarily. Given that the opening portion of the statement makes reference to evidence that I excluded in 2019 ONSC 7531, I invite counsel to reattend before me to provide submissions as to what effect, if any, that fact has upon the admissibility of that portion of the statement that occurred before the utterance.
Varpio J.
Released: December 31, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOHN PINE and RONALD BARON and
WILLIAM ROSS
REasons on application to exclude statement of ronald baron
Varpio J.
Released: December 31, 2019
[^1]: It should be noted that the defence called Mr. James Rajotte from the Centre of Forensic Sciences to testify as to drug usage, and its physiological effects upon the human body. Mr. Rajotte could not give any specific evidence as regards Mr. Baron’s usage and any incumbent effect upon Mr. Baron however Mr. Rajotte’s evidence made it clear that Mr. Baron’s behaviour was consistent with drug ingestion.