COURT FILE NO.: 4706/19 DATE: 20200205
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen S. Doherty, for the Crown Crown
- and -
Shamaree Salmon and Jerdaine Foster S. Reid, for the Accused, Shamaree Salmon P. Seymour, for the Accused, Jerdaine Foster Accused
HEARD: January 24 & 27, 2020
BY ORDER MADE UNDER SUBSECTION 486.4(1) OF THE CRIMINAL CODE, INFORMATION THAT MAY IDENTIFY THE PERSONS DESCRIBED IN THIS JUDGMENT AS THE COMPLAINANTS MAY NOT BE PUBLISHED, BROADCASTED OR TRANSMITTED IN ANY MANNER. THIS JUDGMENT COMPLIES WITH THIS RESTRICTION SO THAT IT CAN BE PUBLISHED.
The Honourable Justice J. R. Henderson
DECISION ON SECTION 9(2) APPLICATION
INTRODUCTION
[1] These are the written reasons for my decision, delivered orally on January 28, 2020, on the Crown’s application pursuant to s. 9(2) of the Canada Evidence Act for an order permitting the Crown to cross-examine a Crown witness, S.B., on a statement given by S.B. to Niagara Regional Police Service (“NRPS”) Officer Langlais on October 14, 2017, at the Niagara Falls police station.
[2] The two accused, Shamaree Salmon (“Salmon”) and Jerdaine Foster (“Foster”), are charged with a variety of human trafficking offences. It is alleged that the accused controlled or directed two young women, S.B. and A.C., both under the age of 18, to engage in prostitution, and that they derived a material benefit from the sexual activity of these two women.
BACKGROUND
[3] S.B.’s statement arose out of an incident that occurred on October 14, 2017, when police officers entered a motel room at Canada’s Best Value Inn, in Niagara Falls, Ontario, where they found S.B. and A.C. and the two accused in the room.
[4] S.B. and A.C. were directed by police officers to exit the motel room. They did so, and they were both questioned by police outside of the motel room. They were then taken to the Niagara Falls police station in a police vehicle and they were individually interviewed at the police station. S.B. was interviewed by Officer Langlais. The two accused were arrested that evening.
[5] At this trial, S.B. has testified on the witness stand in direct examination by the Crown for parts of two days. During the course of those two days she was permitted to refresh her memory from time to time by referring to a transcript of her statement. In some instances, she was able to refresh her memory and answer the questions put to her by the Crown. In other instances, the transcript did not refresh her memory.
[6] In this application the court has attempted to follow the seven-step procedure for s. 9(2) applications as set out in the case of R. v. Milgaard, [1971] S.J. No. 264, 2 C.C.C. (2d) 206 (Sask. C. A.), at p. 221.
[7] Regarding inconsistencies, at this point in the trial it is very clear that there are several inconsistencies between the evidence given by S.B. on the witness stand and the statements made by S.B. to Officer Langlais at the police station. Defence counsel does not necessarily agree that all of the inconsistencies alleged by the Crown are in fact inconsistencies, but the parties do agree that there are at least some inconsistencies.
[8] Having found that there were some inconsistencies between the testimony at trial and the statement made by the witness, I proceeded to call upon the Crown to prove the statement. Thus, a voir dire was held with respect to the circumstances surrounding the statement.
[9] The evidence clearly establishes that five police officers, acting on a tip, attended at the motel room at approximately 8:20 pm on October 14, 2017, where they found the two accused and the two females. S.B. and A.C. were both under 18 years of age at the time.
[10] When they entered the motel room, I find that the police officers took control of S.B. and A.C. by directing them to go outside. There, outside of the motel room, the two females were questioned by police officers for approximately half an hour. The discussion between the police officers and S.B. and A.C. outside of the motel room was not recorded. Thereafter, S.B. and A.C. were taken by the police officers in a police vehicle to the local police station. At the police station they were separated and interviewed individually.
[11] Officer Langlais conducted S.B.’s interview in a police interview room. The question-and-answer session was audio and video recorded, and lasted approximately one hour, ending at 11:14 pm. I have no doubt that the recording of the statement was made accurately.
[12] Defence counsel have raised some troubling issues that relate to the circumstances under which S.B.’s statement was made. I will deal with those issues in more detail later in these reasons.
THE POSITIONS OF THE PARTIES
[13] The position of defence counsel is that, even though the statement has been accurately recorded and there are some inconsistencies, because of the circumstances surrounding the taking of the statement, I should exercise my discretion and dismiss the Crown’s application. In the alternative, if I permit the Crown to cross-examine S.B. on the statement, the defence submits that the cross-examination should be restricted to only a few specific inconsistencies.
[14] It is the position of the Crown that there are many inconsistencies between S.B.’s evidence at trial and the statement she gave to Officer Langlais, such that the Crown should be permitted to cross-examine about the entire statement.
ANALYSIS
[15] In the Milgaard decision, at step six, the court states that a trial judge in exercising his or her discretion on a s. 9(2) application should properly consider the circumstances under which the statement was made. Further, the court in Milgaard made it clear that defence counsel may raise those circumstances to show that cross-examination on the statement should not be permitted.
[16] In my view, the fact that the circumstances surrounding the taking of the statement are considerations on a s. 9(2) application means that the Crown cannot rest its s. 9(2) application solely on proof that the statement was made, that it was accurately recorded, and that there are inconsistencies. Permission to cross-examine one’s own witness on an accurately recorded prior statement is not automatic, even if there are inconsistencies between the statement and the witness’s testimony in court.
[17] These matters were discussed in the Ontario Court of Appeal case of R. v. Carpenter (No.2) (1982), 1 C.C.C. (3d) 149. At para. 13, Grange J.A. wrote the following:
I do not, of course, mean that cross-examination should automatically have been permitted. The subsection is clearly permissive and the trial judge might well have refused permission in view of the circumstances of the taking of the statements and his opinion of its reliability. The test as put by Porter C.J.O. in Wawanessa Mutual Insurance Co. v. Hanes, [1961] O.R. 495 at p. 508 is whether “the ends of justice would be best attained by admitting it. The section does not contemplate the indiscriminate admission of statements of this kind”.
[18] This maxim was repeated in the more recent Ontario Court of Appeal decision of R. v. Boyce, 2014 ONCA 150. At para. 20, Rosenberg J.A. wrote that “cross-examination under s. 9(2) should be permitted if it would serve the ends of justice”.
[19] I recognize that, at this stage, I am not determining the ultimate reliability of the statement given by S.B. to the police officer. Further, I am not deciding the threshold reliability of the statement for the purpose of admitting the statement into evidence. However, I must determine if there is a modest degree of reliability in the statement such that an order permitting cross-examination on the statement by the Crown would serve the ends of justice.
[20] In my view, the circumstances surrounding the taking of this statement raise many problems about its reliability. Some of those problems are quite troubling.
[21] There is no doubt that S.B. was “detained” by police officers within the meaning of that word in both the Canadian Charter of Rights and Freedoms (“Charter of Rights”) and the Youth Criminal Justice Act (“YCJA”).
[22] I find that from the moment that the police officers arrived at the motel room, the officers took control over S.B. Immediately upon their arrival, the officers directed S.B. to exit the motel room and go outside with them. They then directed her to answer their questions while standing outdoors away from the motel room. Thereafter, they directed her to get into the police vehicle and go with them to the police station. At the police station she was directed to enter the interview room and answer the questions put to her by Officer Langlais.
[23] S.B. testified, and I accept, that she felt that she could not leave the police presence once she was told to go outside with the police officers. She testified, and I accept, that she did not feel free to leave, and she could not refuse their direction.
[24] S.B.’s detention is confirmed by an incident that related to S.B.’s clothing. I accept that she was outside of the motel wearing shorts on a relatively cool night and that she was feeling cold. One of the police officers who testified at this trial corroborated, in part, S.B.’s testimony that she asked the police officers if she could go to another motel room to retrieve some warmer clothing, and the police officers denied her request. Instead, she was compelled to stand outside in the cold and answer police questions.
[25] Further corroboration of S.B.’s subjective feelings about her detention can be found toward the end of her interview with Officer Langlais when she asked, “Can I leave now?” A little later she said, “I wanna leave now”.
[26] Thus, I find that S.B. was detained from the time that the police officers directed her to exit the motel room until the time that she completed her interview at the police station, a period of almost three hours. I accept her evidence that she felt that she was not free to leave the police presence during this time.
[27] This raises a concern about the reliability of S.B.’s statement because S.B. was questioned for approximately a half hour while she was detained and standing outside the motel room, and that question-and-answer session was not recorded at all. In fact, no police officer seems to have any notes of this question-and-answer session.
[28] I have uncontradicted evidence from S.B. that during this time she was told by the police officers that Foster was her “pimp”, which I accept made her angry. She denied that it was true. Also, at this time she was confronted by the police officers with pictures of naked women and they told her that the person in the pictures was her, which S.B. again says was untrue. During this period, I repeat that S.B. was standing outside on a cool night in her shorts and was not permitted to retrieve warmer clothes. Thus, this interaction between police and the witness was pointed, accusatory, and aggressive, and it was during a time that S.B. was physically uncomfortable. Anything she said during this time period has questionable reliability.
[29] In my view this interaction outside of the motel room is important to this decision because the discussion outside of the motel room was referenced on several occasions by Officer Langlais when he questioned S.B. at the police station. Given that the statements made to the police officers outside the motel room may be unreliable, and were not accurately recorded or recorded at all, the references to these statements taint the answers given by S.B. to the questions put to her at the police station.
[30] The next concern I have about the reliability of the statement relates to the Charter of Rights. Section 10 of the Charter of Rights states that everyone has the right on arrest or detention to be informed promptly of the reasons therefor, and to retain and instruct counsel without delay, and to be informed of that right.
[31] In my view S.B. was detained from approximately 8:30 pm when the police officers ordered her outside of the motel room until approximately 11:14 pm when her interview was concluded at the police station. At no time during that period of detention was S.B. informed of the reasons for her detention, informed that she had the right to retain and instruct counsel, or given an opportunity to retain and instruct counsel. Thus, any statement obtained from S.B. during this period was obtained in breach of her Charter rights.
[32] Furthermore, and perhaps most importantly, S.B. was a young person at the time within the meaning of the YCJA. That Act provides specific rights for young persons who come into contact with a government authority. It is important to note that in our society a young person often is not aware of his or her rights, and therefore a government authority, such as a police officer, must ensure that the young person is informed of those rights and has an opportunity to exercise those rights.
[33] In particular, pursuant to s. 25(2) of the YCJA, every young person who is detained shall, on being detained, be advised without delay by the officer in charge of the right to retain and instruct counsel and be given an opportunity to obtain counsel. There are other specific rights contained in the YCJA if a young person is not represented by counsel.
[34] With respect to S.B.’s rights under both the Charter of Rights and the YCJA, I accept S.B.’s evidence that if she had been told that she had a right to call a lawyer she would have done so before she spoke with any police officer.
[35] In addition, given that S.B. was a young person, in my view upon her detention she should have been informed that she could call a relative or a parent and given the opportunity to do so. In this case, she was not permitted to do so or informed that she could do so. I accept her evidence that if she had been told that she could call a parent, she would have called her mother before she spoke with police.
[36] I find that if she had called either her mother or a lawyer, it is likely that S.B. would have received advice that she was not required to speak with the police officer, and perhaps that she was not even required to remain with the police officer. Thus, if she had properly been informed of her rights and given an opportunity to exercise them, there likely would have been no statement whatsoever.
[37] This brings me to the next point of concern. At no time did any police officer ever inform S.B. that she had the right to choose not to speak with the police officers. Clearly, under the circumstances, S.B. had the right to decline to speak with the police officers and to refuse to accompany the police officers to the police station. There was an obvious power imbalance between the police officers and S.B. The police officers used this power imbalance to control S.B.’s conduct. The police officers detained S.B. and then directed S.B. to accompany the officers to the police station and give a statement. She was never informed that she had a choice to decline to do so. This brings into question the voluntariness of the statement.
[38] I accept S.B.’s evidence that she believed that she was in trouble, and that she had to do whatever the police officers told her to do. She felt that she had to accompany the officers and answer their questions.
[39] I note that in the early portion of the interview at the police station Officer Langlais said to S.B., “you’re here on your own will, right?... I didn’t force you to come down here?” S.B.’s response was “yeah”.
[40] In my view this was a very feeble attempt to retroactively tell S.B. that she was giving a voluntary statement. By that point she had been detained by the police officers and controlled for almost two hours. She had been questioned and taken to the police station and put into an interview room. She had been given no instruction whatsoever that she had a choice to talk or not talk with the police officers. Thus, this comment from Officer Langlais to S.B. cannot be construed as a clear instruction to S.B. that she had a choice to refuse to speak with him.
[41] Overall, I find that the statement taken from S.B. at the police station was taken in a manner that was in breach of both the Charter of Rights and the YCJA. Moreover, the circumstances surrounding the taking of the statement raise questions regarding the voluntariness of the statement.
[42] There are other concerns with this statement in addition to the aforementioned problems. I find that the way in which Officer Langlais questioned S.B. is also troubling. Most obviously, during the interview, the police officer repeatedly referred to S.B. as “Honey”. This is a patronizing and demeaning manner of talking to a witness. I find that it was a tool used by Officer Langlais to maintain the power imbalance. S.B. testified that the use of this word by Officer Langlais made her feel uncomfortable, and I accept her evidence.
[43] Further, Officer Langlais’s questions of S.B. were often leading and aggressive. For example, he said things such as, “What your boyfriend is doing is wrong” and “You girls are doing the work and you’re paying for all this stuff.” These were clearly attempts to put words in S.B.’s mouth.
[44] Still further, Officer Langlais repeatedly interrupted and talked over S.B. when she tried to explain that what he was suggesting in his questions was wrong. One clear example was when the officer said, “You give your money to Jerdaine”, to which S.B. responded, “It’s not like that…the way you’re saying is not…”. Thereafter, her answer was cut off. This happened on several occasions throughout the interview.
[45] Overall, I find that the manner in which S.B. was questioned by Officer Langlais influenced the manner in which S.B. answered the questions. She testified, and I accept, that she did not choose her words very carefully when she was answering the officer’s questions. She had been detained and thought she had no choice but to answer the questions. She thought that she could not leave until she gave satisfactory answers. Therefore, S.B. said that she thought that she had to tell the police officer what he wanted to hear before she could leave. I accept that she also attempted to deflect some of the questions put to her by answering some of the leading questions with the word “whatever”.
CONCLUSION
[46] For all these reasons, I am not convinced that it would be in the interests of justice to permit the Crown to cross-examine its own witness, S.B., on any inconsistencies between S.B.’s evidence at trial and the statements made by S.B. to Officer Langlais. I find that it would not serve the ends of justice if I were to grant the Crown’s application. Accordingly, the Crown’s request pursuant to s. 9(2) is dismissed.
J. R. Henderson J.