Court and Parties

DATE: 20200416 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ARURAN SUTHAKARAN

Counsel: Paul Kelly and Levi Vandersteen for the Crown Brian Kolman and Trevor Douglas for Aruran Suthakaran

Supplementary Reasons re Voluntariness

MacDonnell, J.

Endorsement

[1] At the outset of Mr. Suthakaran’s trial on a charge of second degree murder, the Crown applied for a ruling with respect to the voluntariness of statements that Mr. Suthakaran made to Detectives Ruhl and Worden of the Homicide Unit of the Toronto Police Service in the course of a videotaped in-custody interview on February 21, 2018. The Crown did not intend to adduce those statements as part of its case but wished to have them available for cross-examination purposes should Mr. Suthakaran elect to testify. At the conclusion of a voir dire, I ruled that the Crown had proved beyond a reasonable doubt that the statements were voluntary. I provided brief oral reasons at that time and indicated that more complete written reasons would follow. These are those written reasons.

[2] In order for a statement made by an accused person to a police officer to be admissible at the instance of the Crown, the Crown must prove beyond a reasonable doubt that the statement was voluntary. The assessment of voluntariness is contextual and case-specific. While all of the circumstances surrounding the making of the statement will be relevant, of prime concern will be whether the statement was induced by hope of advantage or fear of prejudice emanating from the police in the form of promises, threats or other mistreatment, whether the defendant had an operating mind, whether the police employed improper trickery, and whether the statement was obtained in oppressive circumstances.

[3] The defence conceded that no one had made any promises or threats to Mr. Suthakaran prior to or during the interview and that at no point was he physically mistreated. There was no suggestion that he did not have an operating mind throughout the interview process or that any trickery was employed to induce him to speak. The sole issue was whether the circumstances in which the interview was conducted were so oppressive as to cast doubt on the voluntariness of what he said to the detectives.

[4] The charge of second degree murder arose from the shooting death of Anik Stewart in the early morning hours of February 15, 2018. Mr. Stewart and Mr. Suthakaran were said to have been best friends. Six days later, on February 21, 2018, shortly after 5 p.m., Mr. Suthakaran was arrested at his home and was taken to 43 Division. About 4½ hours later, at 9:48 p.m., Detectives Ruhl and Worden escorted Mr. Suthakaran from his cell to what is known as a ‘soft’ interview room. From that point until the conclusion of the interview at 11:16 p.m., one hour and twenty-eight minutes later, no other police officer had any dealings with Mr. Suthakaran.

[5] At the time of his arrest, Mr. Suthakaran had been informed by Detective Ruhl of his right to counsel. Upon arrival at the police station, he had been given the opportunity to exercise that right and he had spoken to duty counsel. Just prior to the commencement of the interview, he was permitted to have a private telephone conversation with his mother. As he was escorting Mr. Suthakaran to the interview room, Ruhl confirmed that Mr. Suthakaran had understood the advice that duty counsel had provided and asked him if he wanted food or water. Mr. Suthakaran responded: “I don’t want anything, sir.” Detective Worden then advised Mr. Suthakaran “…just want you to know Chris [Ruhl] and I are gonna treat you with respect, okay? And, uh, I would like if the – if you could do the same with us, like you have been, is that right? So we’re not gonna make this any harder on you than…it is already, okay? ‘Cause we can see that, uh, you know, you’re having trouble dealing with this. So you don’t have to worry about us coming down hard on you.”

[6] Upon arriving in the interview room, Mr. Suthakaran took a seat on a small sofa across a table from Detective Ruhl, who took the lead in the interview. Detective Worden sat off to the side and took notes. At the outset, Detective Ruhl told Mr. Suthakaran: “If you get hungry or something, please let Paul or myself know and we’ll get you some food. There’s water there in case you need it, okay.” Ruhl asked when Mr. Suthakaran had last slept. Mr. Suthakaran responded that it was earlier that day, in the morning.

[7] At the suggestion of Detective Worden, Ruhl then re-advised Mr. Suthakaran of his right to counsel. He again had Mr. Suthakaran confirm that he understood the advice duty counsel had provided. Ruhl then said: “If at any point you change you mind and you want to call another lawyer, please let Paul or myself know.” Mr. Suthakaran responded: “Okay.” The following exchange then occurred:

RUHL: Okay, and before we begin anything else as well, remember I told you as well at…your house that you don’t have to say anything to me, okay? That’s your right. SUTHAKARAN: Uh-huh. RUHL: Okay? I can ask questions, you can answer them if you feel up to answering them, if you don’t feel up to answering them, you don’t want to, you say ‘Chris, I don’t feel comfortable answering that’ SUTHAKARAN: Okay, okay RUHL: Okay SUTHAKARAN: Okay RUHL: What does that mean to you? SUTHAKARAN: What you just said? RUHL: Mm-hmm SUTHAKARAN: Um, you get, I mean I don’t have to say anything if I don’t want to. RUHL: Yeah. Just take a few moments. Okay, so yeah, what that means is you – I can ask you questions, Paul can ask you questions, and you could say, you know what Paul, you know what Chris, I don’t feel like answering them. SUTHAKARAN: Okay RUHL: Okay? SUTHAKARAN: Okay RUHL: And that’s perfectly fine. SUTHAKARAN: Okay RUHL: All right? SUTHAKARAN: Okay.

[8] The interview then continued. As I have said, the entirety of the interaction between Mr. Suthakaran and the detectives occurred over an hour and twenty-eight minutes, between 9:48 p.m. and 11:16 p.m. The defence did not suggest that anything done by the detectives during the first 52 minutes of the interaction gave rise to an atmosphere of oppression. At one point in that first portion, Mr. Suthakaran expressed concern about how the circumstances of his arrest might be affecting his mother and grandmother, and Detective Ruhl responded with sympathy, reminding Mr. Suthakaran that he had a very good family who would be there for him regardless of how things went in court. He also encouraged Mr. Suthakaran to drink some water, because the room was a bit stuffy, and he apologized for the fact that the room was warm. He asked Mr. Suthakaran if he wished to use the washroom. When the topic of what had occurred at the time of the shooting of Mr. Stewart was raised in this first portion, Mr. Suthakaran did not exercise his right to silence. Rather, he responded by asserting that he did not know what had happened. [1]

[9] What was focused on by the defence, in relation to the allegation of oppression, was what occurred in the last 36 minutes of the interview, beginning with the following exchange at about 10:40 p.m.:

RUHL: …So take yourself back, if you could, to Valentines Day… SUTHAKARAN: Okay RUHL: …and you’re in the bar, you’re with your girlfriend having a good time, do you remember seeing, uh, Pacu? SUTHAKARAN: No sir, I don’t remember nothing. I don’t know what happened, sir, I’m just being honest . RUHL: Mm-hmm SUTHAKARAN: You’re the one who told me I’m here second degree murder. I didn’t do anything sir, I’m just being honest . RUHL: Yeah. And that’s all, all you could ever ask for, right? Is just to be honest. SUTHAKARAN: Yeah. Can I go back to my cell? RUHL: Yeah, I just – we just have a few more questions for you and that SUTHAKARAN: I can’t even talk right now. RUHL: No? SUTHAKARAN: No. No, I can’t. RUHL: Yeah. Well I’m just, again, as I say, I’m trying to get some answers for Anik’s family because I mean… SUTHAKARAN: Uh, I can talk to his family. [2]

[10] I do not take Mr. Suthakaran’s question, “Can I go back to my cell?”, as an assertion of a right to silence. The question he was asked was whether he remembered seeing Pacu, and he answered that question: he claimed a lack of memory. His request to return to his cell was merely a request for the interview to end. Detective Ruhl told him that he had a few more questions, and for the next six minutes, until about 10:46, Mr. Suthakaran continued to answer Ruhl’s questions without objection, albeit in relation to inquiries that were somewhat peripheral to what had happened at the actual time of the shooting. At 10:46 p.m., Ruhl returned to that specific question, telling Mr. Suthakaran that the surveillance video showed him right beside Mr. Stewart at the time of the fatal altercation. Mr. Suthakaran did not decline to respond – once again, he told Ruhl: “Sir, I don’t know anything, sir. I really don’t know anything, sir.” [3]

[11] At this point, Detective Ruhl began to press Mr. Suthakaran on his claim that he did not know what had happened. Mr. Suthakaran told Ruhl “…could you just leave me alone, please? Please, sir, my heart’s hurt and like you guys don’t understand, sir, my friend, you know?... Cause can it, can it just be left alone for a bit? Please? Just begging?... you’re asking things I don’t really know, even know… and you guys told me to talk to duty counsel and he said not to talk, talk to you guys…”

RUHL: Yeah, and that’s, that’s legal advice, that’s good legal advice. I hope you understood it.” SUTHAKARAN: yes RUHL: And again, consider that, I’m speaking to you, as I mentioned before, when we started this interview… SUTHAKARAN: Okay, okay RUHL: …you don’t have to say anything to me. SUTHAKARAN: Okay. I don’t wanna talk anymore. RUHL: Okay? SUTHAKARAN: I don’t wanna talk anymore. RUHL: Okay. That’s fine. I do have a couple images I would like to show you. SUTHAKARAN: Okay. Well, I don’t wanna see anything. RUHL: Well, I’m just gonna put them on the table, if you want to look at them you can. SUTHAKARAN: Okay RUHL: If you don’t wanna look at them, you don’t have to. SUTHAKARAN: okay

[12] Mr. Suthakaran expressed some concern that the photographs that Detective Ruhl was intending to show him might be “disturbing”. Ruhl assured him that they would not be. He said: “That would be awful. I would not do that to you… You have my word. I would not show you any disturbing images, that’s not right.” Mr. Suthakaran looked at one or two of the photographs, but then said, at 10:52 p.m., “I don’t even wanna look at anything sir, I just wanna go back in my cell.”

[13] The interview continued for another 24 minutes. Over the course of those 24 minutes, Mr. Suthakaran indicated on multiple occasions – in the neighborhood of 20 times – that he did not want to answer questions and that he wanted to go back to his cell. The defence conceded that the detectives were not required to stop questioning Mr. Suthakaran solely because he did not want to be questioned. It was submitted, however, that the persistence of the police in continuing with the interview in the face of Mr. Suthakaran’s repeated and often emotional pleas to end it eventually created an atmosphere of oppression.

[14] I agree that the persistence of the police in pursuing the interview in the face of Mr. Suthakaran’s multiple pleas to end the questioning demands careful attention to ensure that the exercise by the police of their undoubted right to ask questions did not create an atmosphere that casts doubt on whether what Mr. Suthakaran said was the product of a free will to speak. Accordingly, I have carefully reviewed, in the context of the entire interview, what occurred in the last 36 minutes of it. While Mr. Suthakaran was emotional throughout the interview, and while there were brief periods in the latter part of it when the atmosphere was argumentative, I am satisfied beyond a reasonable doubt that it never descended into oppressiveness. The efforts by the detectives to persuade Mr. Suthakaran to provide information never caused him to change his position, which he had taken at a time when there was no suggestion of oppression, that he did not know what had happened. Further, on two occasions during the 24 minutes that followed Mr. Suthakaran’s clear indication that he wanted the interview to end, at 10:57 and at 11:09 p.m., [4] the detectives reaffirmed that he could choose not to answer their questions. His professed inability to provide further information to the detectives was restricted to what happened at the time of the shooting, not with respect to events that occurred prior to or after it. He appeared to be quite willing to answer questions about those other time periods.

[15] As I noted earlier, it is conceded that the detectives never made any promises or threats. The interview was conducted in a ‘soft’ interview room, with Mr. Suthakaran seated on a sofa. The officers were in business suits. No weapons were on display. Prior to the interview Mr. Suthakaran was afforded the opportunity to consult counsel and he twice confirmed that he understood counsel’s advice. He was also permitted to have a private conversation with his mother before the interview commenced. Both prior to and several times during the interview he was informed of his right to decline to answer the detectives’ questions. On more than one occasion he declined the offer of food and water. In the middle of the interview he was asked if he wished to use the washroom. Detective Ruhl responded sympathetically to concerns that Mr. Suthakaran had raised about members of his family. The interview was not overly lengthy. It took place about 4½ hours after the arrest. While it began later in the evening, there was no suggestion that Mr. Suthakaran was sleep-deprived at the time. While the officers were undoubtedly persistent in their efforts to obtain information in relation to what happened at the time of the shooting, both of them, and in particular Detective Ruhl, were unfailingly civil, calm and respectful. Their persistence did not shade into hostility or intimidation. They never lied about the evidence they had gathered. They never attempted to trick Mr. Suthakaran. I acknowledge that Mr. Suthakaran was often emotional during the interview, which is not surprising as the victim of the shooting was said to have been his best friend, but whenever he chose to respond, his answers were coherent and responsive. There is no basis for thinking he was anything but sober.

[16] Finally, as Mr. Suthakaran elected not to testify on the voir dire, there is no evidence from him to support the claim of oppression advanced on his behalf.

[17] As observed in The Law of Evidence in Canada (5th), “The Supreme Court of Canada’s decision in R. v. Oickle, 2000 SCC 38 recognizes oppression as a free-standing ground capable of negating voluntariness under the confession rule. Canadian courts may exclude statements where the conduct of the police officers or the circumstances of the detention raise doubts as to whether an accused was able to make an effective choice to speak to authorities or remain silent.” [5] The circumstances which can be considered oppressive are manifold, and “oppression, like the term ‘voluntariness’, is a term more easily understood by illustration than by definition”. [6] The analysis of Justice Iacobucci in Oickle in relation to this question provides some guidance as to the kinds of circumstances that may be relevant. He stated:

To hold that the police conduct in this interrogation was oppressive would leave little scope for police interrogation, and ignore Lamer J.'s reminder in Rothman, supra, at p. 697, that "the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules". Quite simply, the police acted in a proper manner. Viewing the videotapes and listening to the audiotapes reveal that at all times the police were courteous; they did not deprive the respondent of food, sleep, or water; they never denied him access to the bathroom; and they fully apprised him of his rights at all times. They did not fabricate evidence in an attempt to convince him denials were futile. They comforted him, with apparent sincerity, when he broke down in tears upon confessing. While the re-enactment was admittedly done at a time when the respondent had had little sleep, he was already awake when they approached him, and was told that he could stop at any time. And indeed, the Court of Appeal did not directly claim that the police created an atmosphere of oppression sufficient to exclude the statements. [7]

[18] Decisions on issues of oppression are necessarily case-specific, and the facts surrounding the interrogation of the defendant in Oickle were quite different from those of the present case. Nonetheless, virtually all of the circumstances that Justice Iacobucci mentioned as pointing to an absence of oppression in that case find parallels in the present case. Here, too, “the police were courteous; they did not deprive the [defendant] of food, sleep, or water; they never denied him access to the bathroom; and they fully apprised him of his rights at all times. They did not fabricate evidence in an attempt to convince him denials were futile.” Further, here too they offered words of comfort, when he expressed concerns about his family.

[19] For all the foregoing reasons, I was satisfied that the Crown had proved beyond a reasonable doubt that the statements made by Mr. Suthakaran to Detectives Ruhl and Worden were not the product of oppression, and that they were voluntary, and I ruled that they would be admissible for the purpose of cross-examination should Mr. Suthakaran elect to testify.

MacDonnell, J. April 16, 2020

Footnotes

[1] See, e.g , pages 43, 48 and 49 of the transcript of the interview, at 10:25 and 10:30 p.m. [2] At pages 56-57 of the transcript of the interview. [3] At page 64 [4] At pages 73 and 90 of the transcript [5] at §8.83 [6] at §8.89 [7] 2000 SCC 38, at paragraph 86; references to the Appeal Record omitted