COURT FILE NO.: 18-7912
DATE: 2020/11/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Miles Krzyzewski
Accused
Counsel:
John Ramsay, for the Crown
Paolo Giancaterino, for the Accused
HEARD: February 27, 28, 2020
Reasons for decision- Voluntariness Voir Dire
A.E. London-weinstein j.
[1] The Crown seeks to prove the voluntariness of two statements allegedly made by Mr. Krzyzewski to police. The first of these statements was made by Mr. Krzyzewski to Constable Taryne Smith. The second was made to Detective Chris O’Brien after the accused’s arrest for the second-degree murder of Kalen Bryan-Bradley.
[2] I have determined that the utterances made by Mr. Krzyzewski to Cst. Smith were made voluntarily.
[3] Conversely, I was not convinced beyond a reasonable doubt that the statement Mr. Krzyzewski gave to Detective O’Brien was voluntary. Some of the comments made by the officer, when read in the context of entire statement, had the effect of weaponizing the right to silence against Mr. Krzyzewski, and thereby induced him to speak to the detective.
Relevant facts:
[4] Mr. Krzyzewski is charged with second degree murder for stabbing Kalen Bryan-Bradley in the throat and causing his death.
[5] On March 4, 2018, Mr. Krzyzewski, Kalen Bryan-Bradley, and Tarah Campeau were together in Mr. Bryan-Bradley’s vehicle outside the Walmart at Billing’s Bridge Mall in Ottawa.
[6] They had spent the day together and had been using amphetamines (speed), which Mr. Bryan-Bradley had provided. They were also drinking liquor from a shared bottle.
[7] They had been “boosting” (i.e. stealing to re-sell) food from various locations around Ottawa.
[8] Mr. Krzyzewski entered the Walmart around 10 p.m. He was behaving erratically. He had injuries to his face and blood on his person. He was missing a shoe and a sock. The first officer on scene, Cst. Taryne Smith, found the accused inside the Walmart at about 10 p.m.
[9] Cst. Smith noted that Mr. Krzyzewski had blood on his head, ear and hands. He appeared agitated. The officer asked Mr. Krzyzewski if he had taken any drugs or alcohol.
[10] The accused was advised he would be searched, and he asked that the officer not go into his left front pocket. In that pocket, Cst. Smith found a lighter. The officer asked him how he had arrived at the Walmart.
[11] Mr. Krzyzewski said that he had consumed alcohol and amphetamines five hours prior and had been driven to Walmart in a red car.
[12] Cst. Smith asked his name, which he provided along with his correct date of birth. He stated that he did not have a fixed address but had been staying at 174 Craig Henry Drive, Unit A. He became momentarily agitated, but calmed down when Cst. Smith first got him to stand up. He was placed in Cst. Smith’s cruiser until an ambulance arrived. He was not handcuffed.
[13] Shortly thereafter, paramedics attended to assist Mr. Krzyzewski. While Mr. Krzyzewski was in the ambulance, Cst. Smith went to search for the red car. She located the car parked in an adjacent parking lot with the engine running.
[14] What looked like two persons were laying across the back seat. Other officers began to arrive.
[15] At 10:47 p.m., one of those officers, Sgt. Wereley, announced that one of the persons inside the vehicle was deceased.
[16] Cst. Smith arrested the accused for murder at 10:47 p.m. At 10:50 p.m. she read him his rights to counsel from her duty notebook. When she asked him if he understood his rights, he responded, “yeah.”
[17] She then read him his caution and his section 524 warning. He indicated that he understood by responding, “yeah.” Just prior to leaving for the hospital, he said he was schizophrenic and was not taking any medication.
[18] At 10:59 p.m. she seized some clothing from him. They left the scene in an ambulance at 11:05. Cst. Smith remained in the ambulance with Mr. Krzyzewski.
[19] Cst. Smith remained with Mr. Krzyzewski in the ambulance as he was transported to the General Hospital. She did not ask him any questions. While waiting in triage with Mr. Smith, she noted at 11:20 p.m. that Mr. Krzyzewski appeared to be calm.
[20] Cst. Smith reminded him of his caution, and that he was not required to speak to her. Mr. Krzyzewski continued to speak, despite being reminded of his caution.
[21] Mr. Krzyzewski told Cst. Smith that his dealer had driven him to Walmart. He told her that he had “fucked up”, that he knew the female was “Tara” and the male dealer was “K-Lo”. He said K-Lo tried to stab him. He said, “I fucked up.” “Drugs are bad. They’re horrible.” His then said his back was sore, and he thought he had been poisoned. He stated that he was having weird sensations.
[22] He continued to speak despite Cst. Smith again advising him that he had been cautioned. He stated that K-Lo was Facebook friends with his cousin (possibly Cody). He then said, “pretty sure he’s dead. The girl was pretty much telling him to do it.”
[23] Mr. Krzyzewski was taken to have x-rays completed. Cst. Smith remained with him. Mr. Krzyzewski said that he was held for four hours and he said that he was tortured. K-Lo tried to kill him “execution style”. He said he was choked by K-Lo and that he was gagging. He said that “K-Lo” put a knife to his eye, and to his temple. He said he did not know what to do. He cut K-Lo in the throat.
[24] Cst. Smith again reminded him of his caution. He responded by saying that he wanted to get everything out so he did not forget.
[25] At 12:52 a.m. Cst. Smith contacted the cell block at the Ottawa Police Service. She requested that a lawyer list be sent. She eventually received the list.
[26] Mr. Krzyzewski spoke to counsel, Mr. Israel Gencher, on the telephone. Mr. Gencher visited Mr. Krzyzewski at the hospital to speak to him. He was discharged from hospital and taken to the police station. Before arriving at the police station, he asked Cst. Smith if he was looking at 20 to life. She did not answer this question.
[27] I turn now to a voluntariness assessment of Mr. Krzyzewski’s statements to police. I will begin with his statements to Cst. Smith before turning to the statements made to Det. O’Brien.
The statements made to Constable Taryne Smith were voluntary:
[28] Except for a few general questions, which she posed when she first arrived at the Walmart, Cst. Smith did not elicit information from the accused. She asked him whether he had consumed drugs or alcohol as a result of his appearance and behaviour. She asked him how he had arrived at the Walmart. There was no evidence that Mr. Krzyzewski’s response to these few general questions was anything but voluntary. The other statements made by Mr. Krzyzewski to Cst. Taryne Smith were made spontaneously in the absence of questioning by the officer. After being arrested for murder, and despite being cautioned and reminded that he had been cautioned, Mr. Krzyzewski continued to volunteer information to the officer. This was done in the absence of any question being posed by the officer. There were no inducements or threats present in any of the interactions between Cst. Smith and Mr. Krzyzewski.
[29] At the voir dire, Det. O’Brien testified that scene officers who are not with the Major Crime Unit are trained not to ask questions of suspects in a homicide, but to leave the questions to MCU officers. This practice preserves an investigation from taint by error. I accept Det. O’Brien’s evidence on this point. In this case, I find that Cst. Smith followed her training. Despite being repeatedly reminded that he had been cautioned that he did not need to speak to the officer, Mr. Krzyzewski chose to speak to Cst. Smith and freely did so in the absence of any questions being posed by her. His statements to the officer are voluntary.
[30] Having found that the statements made to Cst. Smith were made voluntarily, I turn now to the analysis of the statements made to Det. O’Brien at the Ottawa Police Station.
The statements made to Detective O’Brien were not proven voluntary beyond a reasonable doubt:
[31] I find that Mr. Krzyzewski had an operating mind, that there was no police trickery, and that there were no circumstances of oppression involved in this interview. Det. O’Brien was considerate of his prisoner, in that he gave him time to sleep before conducting the interview and he made sure that the prisoner was fed. There were no overt promises made. However, I conclude that certain comments made by Det. O’Brien effectively weaponized the right against self-incrimination in the mind of Mr. Krzyzewski. This inducement to speak undermined the right to silence and as a result, I had a reasonable doubt about the voluntariness of the statement to Det. O’Brien.
[32] The interview begins with Det. O’Brien advising Mr. Krzyzewski that he wanted to hear his side of the story and once “we have your story, we’ll present everything to the court.’’ The detective states that the court will make the decision regarding what will happen.
[33] Mr. Krzyzewski advises that he has been instructed by his counsel to remain silent. Det. O’Brien concedes that he has a right to remain silent. At page 273 of the statement, the accused advises that he was trying not to say anything because he was waiting for his lawyer, who had instructed him not so speak to anybody. “He said that there would be a detective who could…who might interrogate me for up to hours or….” Det. O’Brien interrupted and said, “[l]ook I’m not interrogating you. This isn’t an interrogation. Some….an interro, sometimes you know, I’m coming in here trying to figure out, you know, did you do this? That is not what I am trying to do here, I know that you caused this man’s death, okay?”
[34] The accused then asks how it is that Det O’Brien knew this fact and Det. O’Brien said, “because you told the officers last night that you …that you did and…” Mr. Krzyzewski says: “Isn’t that possibly excludable?”
[35] Det. O’Brien does not answer this question. Instead, he told the accused to hold on a second and then suggested that perhaps there was a reason why the accused caused the death and that he had just told the detective that he was defending himself.
[36] The detective advised Mr. Krzyzewski that once “we” have his story “we” will present everything to the court and then it would be up to the court to decide what would happen to the accused. Mr. Krzyzewski said that he wished to wait to tell his full side of the story at court. Det. O’Brien told him he may never get a chance to speak in court, and when the accused asked why, Det. O’Brien said he did not know, it just sometimes did not happen.
[37] Det. O’Brien further advised the accused that his integrity was at its highest while being interviewed by police. In my opinion, the combined impact of being told that he may never get a chance to speak in court, with no explanation as to how that might happen; that the police are the information gatherers who provide information to the judge who will decide what happens and that his integrity was at his zenith in the interview, left the accused with the impression that if he did not speak to police he would not receive a fair trial.
[38] These types of comments pose a risk that a subject could be induced to speak out of fear that his failure to provide information will be adverse to his interests at trial. In essence, Det. O’Brien was telling Mr. Krzyzewski that asserting his right to silence may mean he never get a chance to tell his side of the story. The detective effectively weaponized the right to silence against the accused. Mr. Krzyzewski was led to believe that his silence would be insufficient and legally ill advised. In my view, these comments amount to an inducement to Mr. Krzyzewski to give the impugned statement.
[39] It is well established that confessions will only be admissible if the Crown proves beyond a reasonable doubt, that the statement was made voluntarily.
[40] The analysis surrounding the confessions rule is contextual. Hard and fast rules cannot account for the variety of circumstances that vitiate the voluntariness of a confession. When reviewing a confession, the court must therefore consider all relevant factors. The Supreme Court instructs me to strive to understand the circumstances, while taking into account all aspects of the confessions rule. The relevant factors for consideration include oppression, the operating mind requirement, police trickery, and threats or promises: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3.
[41] I will now address oppression, the operating mind requirement, police trickery and finally I will turn to threats and promises.
There was no oppression:
[42] I find that there were no oppressive circumstances surrounding the statement. The questioning was persistent but not accusatorial. The questioning was never hostile, aggressive or intimidating. The accused was provided with food and drink. He was permitted to sleep before being questioned.
The accused had an operating mind:
[43] Mr. Krzyzewski had an operating mind as per R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914. Mr. Krzyzewski said that he has schizophrenia and was not taking medication. There was evidence that he had been consuming alcohol and amphetamines (speed) in the hours before he gave the interview to Det. O’Brien. However, he communicated clearly with Detective O’Brien. He clearly demonstrated comprehension of what was being said to him and the implications of speaking to police. He indicated, for example, regret at having spoken to Cst. Smith.
Police Trickery:
[44] There was no police trickery such that would shock the community.
[45] The law permits police to rely on persuasion and even certain types of deception. However, when police conduct directly undermines an accused’s right to silence, it places the admissibility of the statement in jeopardy. There was no such police conduct in this case.
Detective O’Brien’s subtle threats and promises overbore the accused’s right to silence:
[46] A statement will be involuntary if it is the result of either “fear of prejudice” or “hope of advantage.”
[47] As noted in R. v. Oickle, the more challenging decisions regarding whether a statement is voluntary do not relate to cases where outright violence is employed, but to cases, like this one, where the hope of advantage, or fear of prejudice is more subtle; where the threat is veiled: at para. 53.
[48] Citing The Admissibility of Confessions, 3rd ed. (1979) at p. 230, the Court noted:
Threats come in all shapes and sizes. Among the most common are words to the effect that “it would be better” to tell, implying thereby that dire consequences might flow from a refusal to talk. Maple J., recognized this fact, and said that “there can be no doubt that such words, if spoken by a competent person, have been held to exclude a confession at least 500 times.” (R v. Garner (1848), 3 Cox C.C. 175, at p. 177).
[49] Courts have excluded confessions made in response to police suggestions that it would be better if the accused confessed: Oickle at para. 54, citing R. v. Desmeules, 1971 CanLII 864 (QC CQ), [1971] R.L. 505 (Que. Ct. Sess. P.).
[50] Using words to the effect of “it would be better if you told the truth” do not automatically warrant a finding that the statement was not made voluntarily: Oickle at para. 54. However, in this case, when looking at the entire context of the confession, I am left with a reasonable doubt that the resulting confession was voluntary.
[51] Det. O’Brien advised the accused that he did not want to see him get railroaded for something without the full truth of what happened to him being known.[^1]
[52] The accused was also told that he may never get a chance to speak in court, and that his integrity was at its highest during the police interview.
[53] After being told that Det. O’Brien was concerned about him being railroaded without the full truth coming out, the accused asked why lawyers typically advise clients not to speak to police.
[54] Det. O’Brien responded that the accused had the right to remain silent if he wants to remain silent. However he said he would not be doing his job if he did not give Mr. Krzyzewski the opportunity to tell his side of the story too, rather than saying, “screw this guy, I am just going to go with what I have and send him off to court and not even give him a chance to say his side…”
[55] Mr. Krzyzewski said that it would not make sense if this was his only opportunity to speak and wondered why he could not speak to the police after speaking to his lawyer. Det. O’Brien said that this is typically when you tell the police. Det. O’Brien tells him that this is when his integrity is at its highest.
[56] This statement regarding integrity being at its highest during the interview served to undermine the accused’s right to silence. This comment exacerbated the impact of the original inducement made by Det. O’Brien, which occurred when he suggested that the accused may never be able to tell his side of the story at trial.
[57] The accused then commented that he would have preferred to speak to his regular lawyer “Giuseppe”. There was no issue that the accused was provided with adequate access to counsel in this case. His regular lawyer “Giuseppe” could not be reached and so he chose to speak to Mr. Gencher both on the telephone and in person.
[58] Mr. Krzyzewski was concerned that his integrity would be lessened at trial if he did not speak. This concern, fostered by the officer, is reflected in the accused’s comment that “[a]nd you’re saying my integrity’s at the highest, but like…”
[59] The detective then says, ‘[w]ell, yeah, ‘cause this is the point where you just…you…you can throw it on the table and say “[h]ey, here what happened to me last night. I mean you’ve told me some and that’s good information to get out there I think. Like they…this guy had a knife. He attacked you. You defended yourself. That’s what you told me. Like do you not do you not think that’s something that …that you would want people to know about what…what happened last night.’ [^2] [emphasis added]
[60] Given that Det. O’Brien had advised Mr. Krzyzewski that he may never get a chance to tell his side of the story, this comment would reinforce the notion that “good information” regarding self defence would not be known unless he spoke to the detective, who was tasked with gathering the relevant information for the court. In my view, this comment would reinforce the notion that people may not hear Mr. Krzyzewski’s side of the story unless he speaks in the interview.
[61] Mr. Krzyzewski pointed out that he was trying not to tell the officer more than he should, as instructed by his lawyer.
[62] The detective told Mr. Krzyzewski that he is just trying to get at the truth. Mr. Krzyzewski responded that the best way for police to get at the truth is to get to the courtroom and have it announced there. Det. O’Brien asked why he would want to wait all that time. Mr. Krzyzewski said, “that is what I have been instructed to do.”
[63] Although, historically, the confessions rule was more concerned with the reliability of confessions than with the protection against self-incrimination, this no longer holds true in the post-Charter era. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination. The principle against self-incrimination is a broad concept which has been usefully described by Lamer C.J., as a “general organizing principle of criminal law” from which a number of rules can be derived, including the confessions rule and the right to silence: R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229 p. 249; R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417.
[64] One of the overriding concerns of the criminal justice system is ensuring that the innocent are not convicted. It is recognized that involuntary confessions are more likely to be unreliable. Therefore, the confessions rule requires proof beyond a reasonable doubt of the voluntariness of any statement given by an accused person to a person in authority before it may be admitted into evidence. R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at para. 29.
[65] Not every involuntary confession is false. While the confessions rule primary concern is with reliability, it is well established that voluntariness is a broader concept. Voluntariness is shorthand for a complex set of values: The Honourable S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, loose-leaf, 5th ed. (Toronto: Thomson Reuters Canada, 2019) at 8:10.20. These values include respect for the individual’s freedom of will, the need for law enforcement officers to obey the law, and the overall fairness of the criminal justice system: Singh at para. 30 citing Oickle at paras. 69-70, citing Blackburn v. Alabama, 361 U.S. 199 (1960) at p. 207.
[66] On the question of voluntariness, the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will. The test is an objective one. However, the individual characteristics of the accused are relevant consideration in applying the objective test: Singh, para. 36.
[67] Where threats or promises deny the accused of their right to silence, the jurisprudence has consistently protected the accused from having their involuntary confessions introduced into evidence: Singh, citing J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339.
[68] In R. v Van Wyk, 104 O.T.C. 161, [1999] O.J. No 3515, Justice Hill observed that an accused in the custody of the state is not only physically restrained, but also, by virtue of restriction of liberty, will have a diminished capacity to withstand the influences of others. At para. 149 of that judgement, Hill J. observed that:
At times, the actions of persons in authority may be strictly coercive, while on other occasions, the psychological pressures of those seeking further
incriminatory evidence may be subtlety compulsive.
Custody imports a relationship of dependency—the prisoner cannot walk away—the prisoner relies upon his or her jailers for not only the basic necessities of life, but also for civilized recognition of individual dignity associated with respecting a lawful refusal to cooperate in the creation of self incriminatory evidence.
[69] R. v. Bartle, Lamer C.J. observed that a person in custody is “in a position of disadvantage relative to the state” because he may be “at risk of incriminating him or herself”: 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 at p. 191.
[70] In Van Wyck, the police suggested that they intended to have a quick interview with the accused and that they had a few questions for the bail package. The danger, as noted by Justice Hill, was that the accused may have been led to respond to police inquiries out of a desire to cooperate and to provide information in the hope of improving his chances of securing bail. In the case before me, the danger is that the accused was led to respond to police inquiries because he had been advised he may never get another chance to speak in his own trial, that police collected all of the information to be presented to the judge, and his integrity would be diminished with time.
[71] Justice Hill found, on the particular facts of Van Wyck, that this tactic was “little more than an unfair gimmick or subterfuge designed to undermine the right to make an informed choice about answering a series of police questions.”: Para. 159.
[72] In that case, Hill J. found that a series of related stratagems utilized to dissuade the prisoner form declining to speak further were of a far more serious concern than the technique of making a reference to bail.
[73] The stratagems referred to by Hill J., at para. 160, include:
References to “this is your opportunity to tell your story, statements to the effect that “your credibility is as its highest ….now.”
The assertion that the prisoner would not be as credible ten months down the road at trial when he had “spoken to lawyers.”
The indication that a failure to speak to the police would result in the trial court seeing a videotape where the accused could be seen stating that he “didn’t want to talk” and didn’t want to say anything.”
The suggestion that the court system will not punish an accused, or as much, when he admits his guilt to the police.”
[74] Justice Hill found that the result of these suggestions by the police, whether or not genuinely believed to be accurate by the interviewers, was to mislead Mr. Van Wyk as to the state of the law.
[75] I agree with his conclusion that, as a general rule, the police will be on dangerous ground in purporting to provide legal advice as a persuasive means of leveraging a prisoner to refrain from remaining silent: Para 161. In my view, Det. O’Brien’s comments fall squarely into this dangerous ground. The Detective purported to provide legal advice in order to leverage Mr. Krzyzewski into relinquishing his right to silence.
[76] The suggestion that the credibility of an accused person is highest immediately after arrest, in a police interview, is legally incorrect. “It is clear that statements are neither more, nor less likely to be true based solely on a consideration of when they were made.” Van Wyk at para. 162 citing The Queen v. B.(K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, p. 770.
[77] In a nutshell, Det. O’Brien suggested that if the accused exercised his right to remain silent he may never get a chance to share his side of the story at trial.
[78] Further, Det. O’Brien suggested that if Mr. Krzyzewski waited to give a statement his credibility would be affected. In essence, the message to Mr. Krzyzewski was as follows: You may never get another chance to speak, and even if you do, you will have less chance of being believed if you exercise your right to silence.
[79] Neither of these statements are true. Of course, police are permitted to deceive an accused person. Police sometimes resort to tricks and other forms of deceit, and it is only where the conduct of the police would shock the community that the evidence is excludable: Oickle at para. 66.
[80] However, where police tell a detained person that the interview is the only time where they may be able to present information which will form the evidence at their trial, and if the accused who waits to tell his side of the story may not be believed as a result, that lie pierces the very heart of the rationale underlying the right to silence. Exercising the right to silence does not reduce an accused’s person integrity. An accused person is not required to incriminate himself in order to maintain integrity.
[81] Effectively, the accused in this case was advised that he would be prejudiced by exercising his right to silence, as advised by his lawyer. In my view, these comments, when read in context of the entire statement, including the other comments I have mentioned, made by Det. O’Brien, raise a doubt as to the voluntariness of the statement.
[82] The fear of prejudice, stemming from the belief that he may never be able to tell his side of the story, or be believed when he did so, in my view, left Mr. Krzyzewski with the impression that his only opportunity to present his side of things was in the interview. Considering the totality of the evidence, I am satisfied that Det. O’Brien overrode Mr. Krzyzewski’s right to remain silent. I was left with a reasonable doubt as to the voluntariness of the statement made by Mr. Krzyzewski to Det. O’Brien.
[83] For the foregoing reasons, Mr. Krzyzewski’s utterances to Cst. Smith are proven voluntary and admissible in this trial. Conversely, the statement to Det. O’Brien is not proven voluntary, and is therefore inadmissible.
[84] There were other officers who testified on this voir dire. I reviewed the evidence they provided, but it did not materially impact the decision to exclude this statement and I have therefore not discussed their evidence as part of this judgment.
A.E. London-Weinstein J.
Released: November 2, 2020
COURT FILE NO.: 18-7912
DATE: 2020/11/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Miles Krzyzewski
Accused
Reasons for decision-Voluntariness voir dire
A.E. London-Weinstein J.
Released: November 2, 2020
[^1]: Page 17 of 69 Transcript of Accused’s Statement. [^2]: Page 22 of 69 Statement transcript.