COURT FILE NO.: CRIMJ(P) 995/18

DATE: 2020 03 02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

D. Allison and C. Coughlin, Counsel for the Applicant

Applicant

• and -

TRAVIS BABBINGTON

M. Mattis and M. McGregor, Counsel for the Respondent

Respondent

HEARD: January 22-24 and 27-29, 2020

REASONS FOR DECISION

LEMAY J

[1] The accused, Travis Babbington, is charged with first degree murder as a result of the shooting death of Jahsavior Reid. This shooting took place at the Motel 6 on Stilwell Road in Brampton on February 20^th, 2017. The accused was arrested by the police at approximately 10:20 a.m. on May 8^th, 2017.

[2] After his arrest, which was carried out by the Peel Police’s Tactical and Rescue unit, the accused was transported to the homicide branch on Derry Road. The accused provided a videotaped statement to Constable Ben Irwin of the Peel Regional Police.

[3] In addition, on the morning of February 10^th, 2017, ten days prior to the murder, the accused was at the same motel where the murder took place when he was involved in an altercation with a member of the hotel staff. That staff member complained to the police, who attended the hotel and had an interaction with the accused. The police officers involved in the call made notes of this discussion.

[4] The Crown seeks to rely on both of these statements for the purposes of cross-examining the accused should he testify at trial. In addition, if the statements made to the police by the accused on February 10^th, 2017 are admissible, the Crown will seek to use those statements as part of its case. As a result, the Crown seeks a declaration that both of the statements were voluntary.

[5] The accused argues that neither of the statements were voluntary, and seeks to have them both excluded.

[6] For the reasons that follow, I find beyond a reasonable doubt that both statements were voluntary. The statements given to the officers on February 10^th, 2017 may be used in the Crown’s case in chief, as long as they are appropriately redacted. The statement given to Cst. Irwin on May 8^th, 2017 may be used in the cross-examination of the accused if he chooses to testify.

Evidence

[7] I heard evidence from Detective Cst. Ben Irwin who was a Peel Police officer at the time of the interview in May of 2017, and is now a member of the South Simcoe Police Force. I also heard from Cst. Ryan Farrow, who was a member of the tactical team that executed the search warrant. I also heard testimony from Cst. Sean McCurley, who was the other homicide officer involved in the transport of the accused. I also heard testimony from Cst. Anthony Silott and Cst. Adam Graziosi about the February 10^th, 2017 statement.

[8] In addition, a series of three audio recordings were played in Court. I also reviewed a transcript and a video recording of the interview between Cst. Irwin and the accused. That interview, exclusive of pauses, took approximately six hours in total.

[9] In response to this evidence, I received an Affidavit from the accused and heard viva voce testimony from him as well.

[10] Given the fact that there are two different statements given months apart, it is helpful to divide the evidence into two different sections.

a) The February 10^th, 2017 Statement

[11] The February 10^th, 2017 statement was given by the accused to Cst. Graziosi and Cst. Silott prior to the shooting. The statement was not written down or recorded. At this point, we only have the notes and the recollections of the two Constables and the accused. The two Constables testified during the voir dire. The accused also testified about this statement during the voir dire, and provided information about his interactions with Csts. Graziosi and Silott in his interview with Cst. Irwin on May 8^th, 2017.

[12] I will provide some background to the interaction, and then outline what the officers testified the accused said to them.

[13] I understand that the accused was at the same Motel 6 on Stillwell Road and was staying in a room that was in a friend’s name. He walked out to a car with a friend, and forgot to take the room key. The accused then went to the front desk and asked for a key to get back into the room. The individual working at the front desk refused to provide him with a key, as he was not registered to the room. The accused expressed his displeasure with this decision and told the employee at the front desk that she would be “sorry”.

[14] The accused then apparently entered the room he had been staying in by way of the window. The front desk employee called the police, and made a complaint that the accused had threatened her and had entered the hotel room improperly. Both officers received the same information about the call from dispatch. Both officers testified that they did not view this call as reporting a threatening situation, but as a trespass to property situation.

[15] Both Constables were on patrol by themselves in separate vehicles. They were both dispatched to the call that was received, and both attended at it around the same time, approximately 8:11 a.m.

[16] Both officers arrived at the hotel, with Cst. Silott arriving first. They stopped at the front desk and spoke with the front desk employee who had complained about the accused. Both officers understood from the front desk employee that the threat that the accused had made was along the lines of “you will see what the police do when they get here.” The front desk employee then identified which room the accused was in, and the officers went down the hall to that room.

[17] Both officers were in the standard Peel Police uniform, and were clearly identifiable as Peel Police officers. They knocked on the door, and the accused opened it. He identified himself with ID, provided his date of birth and his address and phone number. The accused went on to say that a friend of his had registered the room. The accused produced two cards that opened the room door.

[18] The officers did not arrest the accused. Instead, they told him that he would have to leave the hotel, which the accused agreed to do. The accused was permitted to gather his belongings and leave the hotel on his own. The police officers then left.

[19] At the end of their time at the hotel, the police officers prepared their notes but did not prepare a verbatim transcript of their interaction with the accused. They also did not record the conversation, or caution the accused about either his right to counsel or his right to remain silent.

b) The Post-Shooting Statement

[20] On February 20^th, 2017 at approximately 10 p.m., the Crown alleges that the accused entered the same hotel in Brampton. I understand that, at trial, there will be some evidence that, on this occasion, the accused wore distinctive clothing and was known to one or more guests at the hotel that he encountered.

[21] Within a minute or two after entering the hotel, the individual that the Crown alleges is the accused let some other people into the hotel. There were a total of three other people with the person the Crown alleges was the accused. They stopped at a room on the first floor. The four of them then went upstairs to the second floor where the deceased was in a room with his girlfriend. They forced their way inside the room, and I understand they may have pistol whipped the deceased who fell to the ground. They then shot the deceased numerous times. This entire interaction took less than a minute.

[22] Just less than three months later, on May 8^th, 2017, the accused was arrested during the execution of a search warrant on the house where he was staying. He was asleep at the time that the warrant was executed.

[23] The police arrived at a residence where they believed (correctly) the accused was staying and had the Tactical and Rescue unit execute the warrants. There were approximately eleven (11) officers involved in the execution of the warrants, some of whom remained outside of the residence.

[24] The police engaged in a “breach and hold” execution, which meant that they forced open the front door of the house, and then issued loud commands for all of the residents in the home to leave the home. When this was done a number of women and a baby were escorted out of the home.

[25] Members of the Tactical and Rescue Unit then entered the home and proceeded to secure the main floor. Several officers (including Cst. Farrow) then made their way to the basement, where they found the accused lying on a couch. On the accused’s evidence he was asleep.

[26] The accused did not respond to Police commands to get on the floor facedown and put his hands behind his back. When these commands were being given, one officer (Cst. Charles Ross) had his long gun trained on the accused while Cst. Farrow had his taser out and ready to use. I was advised that these precautions were being taken in part because the crime the accused was being charged with was a violent crime, and the weapon used the commit the crime had not been found.

[27] Since the accused failed to cooperate with the requests that were being made of him, Cst. Farrow used physical force to move the accused off of the couch, and put him on the floor face down so that he could be handcuffed. The accused was then put back on his feet, walked out of the house and turned over to Cst. Irwin.

[28] At the point that the accused was turned over to Cst. Irwin the police started to make audio recordings of their interactions with the accused. An audio recording covers the period between when custody of the accused was transferred to Cst. Irwin and when Cst. Irwin and the accused arrived in an interview room in the homicide branch on Derry Road. In the course of the ride from his residence to the homicide branch, the accused was asked for the name of his lawyer and identified that person.

[29] Once the accused arrived at the homicide branch, he was afforded an opportunity to speak with his counsel. The accused made use of that opportunity for approximately twenty minutes. At the end of that conversation, the accused was asked by Cst. Irwin whether he was satisfied with the conversation. The accused advised that he was satisfied.

[30] The interview then commenced. The interview lasted for a total of six hours, but there were some significant breaks during the course of the interview. As a result, the accused was at the homicide branch from 11:00 am to 8:00 pm. He was then transported to 12 Division and held overnight. He was taken to bail court the next morning, and has been in custody ever since.

The Positions of the Parties

[31] The Crown argues that both statements are voluntary. In terms of the February 10^th, 2017 statement, the Crown notes that the accused was not detained, and the statement is sufficiently reliable to be admitted into evidence. In terms of the May 8^th, 2017 statement, the Crown argues that nothing that happened in the course of the accused’s arrest or the giving of the statement rendered it involuntary.

[32] Defence counsel argues that the statements were not voluntary. In terms of the February 10^th, 2017 statement, counsel argues that the statement was not recorded. In his factum, Counsel for the accused also argued that the rights under section 10 of the Charter were not provided to the accused when this statement was taken. As a result, counsel argues that the statement was not voluntary. In terms of the May 8^th, 2017 statement, counsel argues that a constellation of factors (both individually and taken together) rendered the statement involuntary.

[33] At the outset of this application, I confirmed that the defence was not raising any issues with respect to the Charter in relation to these statements. The admissibility of these statements is simply a question of voluntariness.

Issues

[34] There are two issues that must be determined as a result of these facts:

a) Was the February 10^th, 2017 statement voluntary

b) Was the statement given to Cst. Irwin on May 8^th, 2017 voluntary

[35] I will address the voluntariness of each of the statements in turn.

Issue #1- The February 10^th, 2017 Statement

[36] In his factum, defence counsel argued that this statement is not voluntary and/or should not be admitted because Mr. Babbington was not provided with his section 10(a) or section 10(b) rights and because the statement was not recorded. The Crown opposes both of those arguments. Although the section 10 Charter argument was not pursued by the accused in oral argument, I will briefly address it.

[37] I have summarized the conversation between the officers and the accused above. It was a very short interaction that would not be uncommon for patrol officers to have as part of their daily routine. Having reviewed the evidence about the conversation, I conclude that both of the accused’s arguments fail.

[38] I start with the argument with respect to the right to counsel. Someone who is arrested or detained by the police is entitled to be informed immediately of their right to counsel. However, not every interaction between the police and a member of the public will engage the rights under section 10 of the Charter (see R v. Suberu 2009 SCC 33) at least partly because not every action amounts to either an arrest or a detention. I am persuaded that the accused was not arrested or detained by the officers when they interviewed him at the hotel room for the following reasons:

a) Both officers testified that, even before they arrived at the hotel, they did not believe that this was a criminal case.

b) The officers’ view that this was not a criminal case is objectively supported by the nature of the “threat” that was allegedly made by the accused. Saying things along the lines of “you will be sorry” and “you will see what the police do when they get here” is not the type of comment that would attract any criminal sanctions.

c) The accused had a reasonable basis for believing that he had the right to be in the hotel room.

d) The officers did not tell the accused that he was detained, and did not arrest him.

e) The accused was permitted to leave on his own, and the police did not remain to make sure he left the property.

[39] This brings me to the accused’s second argument, which is that the statement is not recorded and should therefore not be admitted. The issue of whether a recorded statement should be admitted was considered by Hill J. of this Court in R. v. Menezes (2001 CanLII 28426 (ON SC), [2001] O.J. No. 3758). In that decision, Hill J. makes the following points:

a) The Court needs to satisfy itself that the police have not deliberately orchestrated a selective recording of an accused’s statements in order to set up a credibility contest between a police officer and the accused.

b) Ordinary witnesses often testify without the benefit of notes about out-of-court statements made by the accused. Where such statements are otherwise voluntary, the accuracy and completeness of the statement is a question for the trier of fact.

c) Whether the statement was unconsciously or deliberately fabricated by the person testifying about it is also a question for the trier of fact.

d) The statements of the accused must have sufficient context in order to be safely admitted.

[40] I see nothing that would suggest that the police officers selectively edited their encounter with the accused on February 10^th, 2017. The encounter was described by both officers from start to finish, and was adequately detailed in their notes. In addition, the murder had not yet taken place, which means that the encounter was a relatively minor one.

[41] Similarly, the statements that were made in this case have a sufficient context to be safely admitted. The circumstances behind the call that was made and the entire encounter with the accused are explained. Finally, I note that in his testimony the accused did not seriously dispute the evidence of the officers. This is also an indication that the statements are sufficiently reliable (and have sufficient context) to be admitted.

[42] As a result, I am of the view that the statements made by the accused to the officers on February 10^th, 2017 are voluntary and should be admitted. Any concerns with respect to weight, fabrication or the ability of the officers to identify the accused can be addressed through cross-examination and/or a jury instruction.

Issue #2- Was the May 8^th, 2017 Statement Voluntary?

[43] To determine whether the statement is voluntary, I will review four different areas:

a) The overarching legal principles.

b) The factual background- what happened before the accused made the May 8^th, 2017 statement?

c) The specific issues raised by the accused about the voluntariness of the statement itself.

d) A global analysis of whether the interview, taken as a whole was (or became) involuntary at some point.

a) The Overarching Legal Principles

[44] The leading case on the voluntariness of statements is R. v. Oickle (2000 SCC 38, [2000] 2 S.C.R. 3 (S.C.C.)). In that decision, the Supreme Court outlined the four requirements for a statement to be voluntary:

a) There cannot be any threats or inducements offered to the person making the statement.

b) There cannot be oppression. A statement cannot be voluntary if the will of the person making it has been overborne.

c) The accused person must have an operating mind.

d) There cannot be any police trickery.

[45] In this case, most of the argument was focused on the circumstances in which the statement was made. The defence argued that various conduct brought into play the first three requirements of the test in Oickle and that, either individually or collectively, these factors rendered the accused’s statement involuntary. The defence also argued that police trickery was used in order to subvert the accused’s right to silence.

[46] The burden rests on the Crown to demonstrate, beyond a reasonable doubt, that the accused’s statement was voluntary.

[47] There was no dispute that the accused received his right to counsel, and there was no Charter challenge to the admissibility of the statement. As a result of this fact, there are two other legal principles that also apply in this case.

[48] First, as the Supreme Court of Canada has set out in R. v. Singh (2007 SCC 48, [2007] 3 S.C.R. 405), the right to remain silent does not prevent the police from speaking to an accused. As Oickle, supra acknowledged (at paragraph 33), there are two goals at play in these types of cases and the Court must protect the rights of the accused without unduly limiting society’s needs to investigate and solve crimes.

[49] However, Singh, supra also acknowledges (at para 47) that:

First, the use of legitimate means of persuasion is indeed permitted under the present rule – it was expressly endorsed by this Court in Herbert. This approach is part of the critical balance that must be maintained between individual and societal interests. Second, the law as it stands does not permit the police to ignore the detainee’s freedom to choose whether to speak or not, as contended. Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a few will to speak to the authorities. As we shall see, the trial judge in this case was very much alive to the risk that the statement may be involuntary when a police officer engages in such conduct.

[50] Second, in R. v. Sinclair (2010 SCC 35), outlined the circumstances in which an accused, having exercised the right to counsel, was entitled to exercise it a second time. In essence, a second discussion with counsel will be constitutionally required when the initial advice is no longer sufficient to address the issues that the accused is facing. This will include a change in the jeopardy that the accused is facing, new procedural issues or other similar factors.

[51] With these background principles in mind, I now turn to the factual issues underlying this case.

b) The Factual Background

[52] As part of the materials that were filed on this motion, the accused signed an Affidavit dated January 8^th, 2020. The most relevant paragraphs of that Affidavit state:

5. At that time, I was asleep on the couch at the residence and awoken on the floor with police hitting me with their hands and knees.

6. The police told me to stop resisting although I was not.

7. I was arrested by what I believe to be SWAT team police officers in grey denim carrying high powered weapons.

8. Many police officers and police vehicles were within and outside of the residence.

9. The police placed me in a cage in a silver van and transported me to a police facility.

10. When I arrived at the police facility, one of the policemen in a grey uniform told me that I was to provide information on what is happening if I wanted the police to help me.

11. The police also told me that I should talk if I wanted to see my family again.

12. There was a police officer who was at the police facility, he had a big book. He was muscular, had an orange colour beard and was about 6 feet tall. They grey coloured uniform officers said I could give the information to the officer with the book.

13. Using his hand, the officer with the book hit Mr. Babbington on his nose.

14. I felt that if I speak to the police, I would be able to see or speak to my family.

[53] On the voir dire, after the officers had finished testifying, the accused took the stand and was asked about this Affidavit. He testified as follows:

a) He may have been mistaken or confused about the silver van.

b) The events that were described in the Affidavit generally took place, but many of them happened in the basement of the house when he was arrested, and before he was taken out to the homicide detectives. This is different from the timing set out in his Affidavit.

c) The accused testified that he woke up on the ground on the morning of May 8^th, 2015 with an officer’s knee in the back of his neck, and with his left hand being twisted by the same officer. There was a second officer who had his right hand, and a third officer who was yelling at him to stop resisting.

d) The accused testified that he could not breathe with the officers on top of him, and he was panicking and thought he was going to pass out. There were four to five officers touching him at that point.

e) The accused said that he was kneed several times by a couple of officers. They then handcuffed him and then picked him up and stood him up by the loop of his pants. There were allegedly six to seven officers around the accused at this point.

f) The accused then testified that his jacket was ripped, including having one pocket completely ripped off the jacket.

g) After the accused was on his feet, there was allegedly a larger officer who was not fat (and probably worked out) who said words to the effect of he knows what he is looking for and has the accused. The accused then said that the bigger officer said something about Ishmael, the accused’s son.

h) The description the accused gave of this officer was that he was larger, was white and had a yellow or orange beard. There was an exchange of words between the accused and this officer, in which the accused said that they are framing him. Then, the officer allegedly hit the accused with a book on the nose, although the accused was able to turn his head away and avoid the brunt of the blow.

[54] The accused was then arrested and taken to the police station, where he gave the impugned statement. In light of that fact, it is important to assess this evidence as what happened when the accused was arrested as it is important context for assessing the voluntariness of his statement.

[55] I reject the accused’s version of what happened when he was arrested and the allegations set out in his Affidavit for seven reasons.

[56] First, the accused’s evidence about what had taken place downstairs does not fit with the timing of events as described in the officers’ contemporaneous notes. In order to explain this concern, I will set out the sequence of events. The warrant is executed at 10:11 am, but the accused is not located in the basement until 10:21 am. He is then arrested, handcuffed and taken out to the waiting homicide officers (Csts. Irwin and McCurley). The two homicide officers are waiting approximately 100 meters from the home. The accused is turned over to them at approximately 10:27 am.

[57] As a result, the entire interaction with the accused, including the arrest, being kneed several times in the back, the discussion about the accused’s son, the alleged statements by the unidentified officers that the police have evidence on him, the hit from the tactical officer with the book and the walk out of the house and down to the homicide officers approximately 100 meters away had to take place in six minutes. It is unlikely that all of these events happened in that amount of time. Instead, it is likely that the accused was arrested and immediately turned over to the homicide detectives.

[58] Second, the evidence that I heard was that the tactical unit was not involved in the investigation of the case and this evidence was not really challenged on cross-examination. Instead, the tactical unit officers were just brought in to execute the warrant. As a result, it is unlikely that a tactical officer would have known much about the underlying case, and equally unlikely that that officer would discuss that knowledge with the accused. Specifically, I find that it is highly unlikely that one of the officers from the Tactical and Rescue unit would have mentioned the accused’s son.

[59] Third, the accused states that it was the officers who brought Ishmael (his son) up first, and that they did so right when he was arrested. However, it is clear from reviewing the transcript that the accused actually brought Ishmael up first when he was speaking to Cst. Irwin.

[60] Fourth, there is the timing of the change in the accused’s story. As set out at paragraph 52, above, the accused swore an affidavit outlining that all of the interactions that he was complaining about (other than the physical interactions at the time of arrest) happened when he got to the police station. However, the testimony from the officers combined with the audio tapes made it clear that none of these interactions happened after the accused was turned over to Cst. Irwin. The accused testified that his memory was “refreshed” by hearing the officers testify. I reject that explanation, and conclude that the accused concocted the events in the Affidavit, and then changed his story when he realized that it was contradicted by contemporaneous unaltered video and audio recordings.

[61] Fifth, there is the accused’s description of the large man with the orange beard. There are two problems with this description. First, none of the officers who testified could identify an officer matching this description. Second, in the course of his interview, the accused used this same description to describe several other officers whom he had interacted with in the past. First, in the car on the way to the station, the accused describes being involved in an incident at Shopper’s World with a muscular officer with a big beard. Second, when being interviewed by Cst. Irwin, the accused made reference to being pulled over by an officer with a big beard.

[62] Sixth, Cst. Irwin testified that the policy in homicide investigations is to limit contact with the accused to the interviewer, the scribe and the transport officer. It is, therefore, less likely that a police officer will be initiating contact with the accused at the time of arrest given this policy.

[63] Finally, the accused and Cst. Irwin discussed the accused’s arrest. The accused confirms that he was woken up out of a sleep and put on the floor. He confirms that he is fine by saying “No, honestly, boom I am in one piece” at the end of the discussion. Nowhere in this discussion does the accused mention anything about the alleged events involving the big bearded man. Given that the accused was prepared to complain about being put on the floor, and alleging “you guys scared the shit out of me”, it is likely that he would have mentioned any other issues to Cst. Irwin if they had happened.

[64] In addition, later in the interview (at 14:07), Cst. Irwin confirmed that the accused had not talked to anyone else since he got to the homicide building. This contemporaneous statement is inconsistent with the accused’s Affidavit.

[65] Based on the foregoing, I conclude that the accused’s version of events at the time of his arrest simply did not happen. Instead, I accept Cst. Farrow’s testimony that the accused was non-compliant with directions when he was arrested but, from that point forward, the arrest was a routine one.

c) The Specific Concerns About the Interview

[66] The concerns that the accused has raised about the interview are as follows:

a) The accused claims he received a number of inducements to talk during the course of his interview with Cst. Irwin.

b) After having received legal advice, the accused asked to speak to his counsel, and this request was denied. The accused was then told that he might get another opportunity to speak to counsel. The Defence argues that this was both an inducement, and a violation of his right to silence.

c) The accused was subject to oppressive conduct because of the fact that he peed in his pants a little bit at the start of the interview, and because of other issues with washroom breaks.

d) The accused was subject to oppressive conduct because of the poor food that was provided to him.

e) The accused was sleepy and/or tired when he was speaking to Cst. Irwin and this should have resulted in the interview being terminated.

[67] Normally, I would analyze these issues by considering the factors in Oickle, supra. However, at least some of these issues tend to spill over between the factors in Oickle. It is, therefore, easier to analyze them based on each subject and then return to an analysis of the Oickle factors at the end of my analysis.

The Alleged Inducements

[68] Counsel for the Defence suggests that there were a number of “subtle” inducements throughout the course of the interview. In argument, counsel submitted that the inducements started with the following exchange, which took place while the police were transporting the accused to the homicide bureau:

IRWIN: Thanks, Travis, you too man. I’m hoping that we can share some stuff with each other today and, uh, get to the bottom of everything, okay? We’re not gonna do that right now, we’re just gonna wait till we get back and you have a chance to speak to your lawyer.

[69] I do not agree with counsel that this amounts to an inducement, even a subtle one. It is simply a description of what is going to happen when they arrive at the police station. The accused will get a chance to speak to counsel. Then, the police would (in accordance with the principles in Singh, supra) speak to the accused, and at that point it is the accused’s choice as to whether he wishes to speak to the police in turn. This brings me to the other alleged inducements.

[70] Counsel for the defence argues that the other inducements were potentially being able to be released from the police station, seeing photos of his son at one point in the interview and potentially being able to keep the photographs, the prospect of charges against his girlfriend Dejaunte Blake, and potentially being able to speak to his lawyer.

[71] I start with the alleged offer of being released from the police station. In support of this alleged inducement, counsel for the defence directs my attention to the following passage of the transcript (at 14:01):

BABBINGTON: That’s it, Ben, I’m getting out of here, aren’t I? So far so good no?

IRWIN: So far so good, man.

BABBINGTON: I’m getting out of here, eh?

IRWIN: Well, I can’t say that. We’re not at the end, right? I told you I’m not gonna lie to you, right?

[72] On its own, it is barely possible that this passage can be read as suggesting that the accused was told that he might get out of jail at the end of the interview. However, this passage needs to be read in the context of the interview as a whole. There are three points that convince me that there was no inducement intended or understood by this portion of the interview.

[73] First, at the time of arrest, the accused was told that he would be going to jail. The following passage is taken from the audio when the accused was being transported to the homicide branch:

IRWIN: …you are currently under arrest for first-degree murder, uh, amongst other drug charges that I’ve explained to you.

And, uh …

BABBINGTON: Am, am I going to jail, sir?

00:15

IRWIN: At some point you will be, yeah?

BABBINGTON: At some point I…

IRWIN: Yeah.

BABBINGTON: …will be going to jail?

IRWIN: Yeah, at some point you will be,yeah.

BABBINGTON: Oh, my God.

[74] Cst. Irwin goes on to advise the accused shortly after that exchange that the decision about whether he goes to jail or not is not Cst. Irwin’s decision to make.

[75] Second, on a number of occasions during the interview, the accused asked if he was getting out of jail. Cst. Irwin’s answer was not today, and that ultimately whether the accused got out of jail or not was not Cst. Irwin’s decision to make. This exchange takes place on a number of occasions.

[76] Third, within forty minutes of the conversation set out at paragraph 71 above (at 14:41), the accused and Cst. Irwin have another exchange as to whether the accused is getting out of jail. Again, Cst. Irwin advises the accused that he is not getting out of jail today.

[77] I reject the accused’s argument that the conversation at 14:01 amounted to an inducement. Throughout the interview, Cst. Irwin clearly, fairly and regularly stated that the accused would not be going home at the end of his interview and that it was not Cst. Irwin’s decision to make as to whether the accused would get bail.

[78] This brings me to the photographs of his son that the accused was shown during the interview. The accused’s allegation is, in essence, that he was induced to talk with photographs of his son, and the potential promise that he would get to see his son. I reject that assertion.

[79] First, as I have noted above, at no point did Cst. Irwin tell the accused that he would be getting out of jail at the end of the interview. As a result, it is difficult to see how the accused was going to see his son. The passage that Defence counsel relies upon for this claimed inducement does not actually contain an inducement, when examined closely. That passage states:

IRWIN: You said that you wanna see your son, right?

BABBINGTON: Yeah.

IRWIN: So would your son respect the truth, or would he expect someone who’s telling half-truths and not being…

BABBINGTON: Well, my son-, my son expect the truth. My son…

IRWIN: Exactly.

BABBINGTON: …know the truth.

IRWIN: Exactly.

BABBINGTON: Yeah.

15:42

IRWIN: And so do I. I’m not different, right?

BABBINGTON: So, Ben…

IRWIN: So I’m gonna shoot you straight. I-, I’ve told you right from the beginning, I’m not gonna lie to you, right?

BABBINGTON: Yeah.

IRWIN: And what you have to keep in mind, is that’s at home.

BABBINGTON: Yeah. Me know that’s at home. So what I have to do it this why you a show me. Me nuh have nothing for you do with none over here talk to me about. That me a try and tell you Murder just call my la-, talk to my lawyer. And talk to my mother and make them know what you trying to bring me ‘Cause this…

IRWIN: Because would Ismael appreciate his dad lying, and trying to get himself out of something that he’s into? Or would Ismael respect the truth, when he grows up and understands what has happened here?

BABBINGTON: Yeah. Well, (inaudible)…

IRWIN: Okay. I’m just gonna leave you with that…

[80] In this passage, Cst. Irwin is using nothing more than moral inducements in order to get the accused to talk. There is no quid pro quo. Cst. Irwin is only asking the accused to think of what his son would want and/or think, which is not something that Cst. Irwin has any control over. There is also no promise, express or implied, that the accused will be allowed to see his son if he talks to Cst. Irwin.

[81] Second, the case-law has permitted much more intrusive moral inducements. In that regard, R. v. Calnen (2015 NSSC 291) is instructive. In that case, Mr. Calnen was charged with the second degree murder of his partner. During the course of the interview, the police discussed his children with him, and then brought the mother of his partner into the interview room to speak to him.

[82] Chipman J. found that, although this conduct preyed upon the accused’s emotions, it did not amount to oppressive conduct or a quid pro quo. He also concluded that this was not the sort of conduct that would shock the community. The conduct in the case before me is significantly less intrusive than it was in Calnen.

[83] Another example is the decision in R. v. Powder (2018 ABQB 948). In that case, the accused was charged with first degree murder. The police obtained a recording of the accused’s common law spouse, and provided it to him during the course of the interview. The evidence made it clear that the accused’s spouse was not given a script by the police, but that the police did control the timing of the disclosure of the recording. Gates J. found that this did not amount to an inducement or other conduct that crossed the line.

[84] Both Gates J. and Chipman J. noted the British Columbia Supreme Court’s decision in R. v. Ciliberto (2005 BCSC 1859) where the accused was confronted by the victim’s parents, who were close friends with his family. The accused had known the parents of the victim for most of his life, as the accused had been a close friend of the victim since childhood.

[85] Both Gates J. and Chipman J. found that the conduct in Ciliberto amounted to “emotional warfare”, which is a description I also adopt. The conduct in the case before me comes nowhere near such “emotional warfare”. Instead, the conduct in this case is a moral inducement of the sort that the police are permitted to use.

[86] Then, there is the issue of whether the accused being advised by the police that his girlfriend, Dejaunte Blake (spelled Deshante in the transcript), was going to be charged is an inducement, or otherwise renders the statement involuntary. This information was neither an inducement nor significantly affected the accused’s operating mind for three reasons:

a) There is nothing in the statement to suggest that the accused was told that Dejaunte would not be charged if the accused talked.

b) Cst. Irwin delayed in telling the accused about Dejaunte’s involvement until towards the end of the interview, where the narrative made it necessary to indicate that Dejaunte was involved.

c) Related to the second point, Dejaunte’s involvement came up when the accused and Cst. Irwin were viewing surveillance photographs, including ones that included photographs of Dejaunte. It was a natural part of the interview.

[87] The final issue that counsel raises as a potential inducement is the fact that the accused asked to speak to counsel on approximately thirty (30) occasions, and was then advised that Cst. Irwin would consider the request. The accused was also advised at some point that Cst. Irwin was actually working on this request.

[88] I do not view these statements as being inducements for two reasons. First, and most importantly, there is no quid pro quo, either explicitly or implicitly. The accused made a request to speak to counsel and was told that the request was being considered and then worked on. There was no link between that request and the continued participation of the accused in the interview.

[89] Second, the accused had already had a chance to discuss matters with his counsel and none of the underlying facts had changed since the accused had spoken to his counsel. This brings me to the second major category of problems raised by the accused.

The Requests to Speak to Counsel and to Remain Silent

[90] Defence counsel argues that the accused made approximately sixty requests to speak to his counsel after the interview began and the police ignored those requests. In addition, there were occasions where the accused asked for the interview to end and the police continued to speak to him. As a result, Defence counsel argues that the accused lost his right to silence. In support of this position, counsel relies upon the passage from Singh, supra set out at paragraph 49.

[91] I reject this argument for four reasons. First, as noted above, there is no automatic right to speak to counsel a second time, absent a change in circumstances. In this case, the accused had been charged with first degree murder and was facing a possible drug charge. However, this had been known to everyone from the outset of the interview. There had been no additional changes or issues that had arisen since the accused had spoken to counsel.

[92] Second, the accused’s requests to speak to counsel were in many ways a request to end the interview. This suggestion was put to the accused in the course of his cross-examination on the voir dire and he did not really dispute it. In addition, approximately five minutes after the interview re-commenced after the accused had been able to talk by telephone with a number of people (at 19:49), the accused again asked to speak to his lawyer. The exchange reads as follows:

BABBINGTON: (Inaudible.)

IRWIN: That sort of paint the full picture for us to know us know that Travis Babbington is absolutely involved on a murder, February 20^th of this year at Motel 6, okay? It’s not one person, okay? That’s what I wanted to stress to you.

BABBINGTON: I’d like to talk to my lawyer, again. I don’t know what to say to you, but I just wanna talk to my lawyer. That’s it.

IRWIN: Okay.

BABBINGTON: That’s it.

IRWIN: And that’s fair. And, and you can do that from jail ‘cause that’s where you’re going.

BABBINGTON: Yeah, that’s okay. I don’t mind.

IRWIN: Okay. All right.

19:50

BABBINGTON: I wanna talk to my lawyer.

[93] When this exchange is reviewed, it is clear that the accused’s requests to talk to his lawyer are in many ways designed to avoid uncomfortable evidence that he is being confronted with.

[94] Finally, the case-law does not support the accused’s position. Two examples in support of my conclusion in this regard will suffice. First, in Powder, supra, the accused was subjected to persistent questioning over an extended period of time. In that decision (at paragraphs 107 to 121) Gates J. sets out a detailed discussion of the relevant caselaw, and concluded that he was not persuaded that the persistent questioning was sufficient to result in the statement being rendered involuntary.

[95] Two observations from Gates J’s discussion of the law in Powder are applicable in this case. First, Cst. Irwin adopted a polite, respectful and calm manner in conducting the questioning. He did not push the accused to answer questions. Indeed, on some occasions when the accused asserted that he does not want to talk, Cst. Irwin said that he would simply show the accused some additional pieces of evidence.

[96] Second, even though the accused was asserting a right to silence, he continued to engage with Cst. Irwin throughout the interview as the accused did in Powder. This is, in part, because the accused knew that the police had been talking to his friends before he was arrested, and he was interested in knowing what evidence the police had about him in their possession. In support of this conclusion, I note the following three examples:

a) At 16:07, the accused said that he did not want to talk, but immediately afterwards started engaging with Cst. Irwin about the evidence.

b) At 16:19, the accused said “me nuh answer no question, talk to my lawyer.” Cst. Irwin responds “no problem” to this statement, and then the accused immediately offers an explanation of where he wasn’t on February 20^th, 2017. It is difficult to see how this exchange amounts to the accused exercising his right to silence.

c) At 16:43, the accused says that he wants to talk to his lawyer and he does not want to say anything. At that point, Cst. Irwin agrees that “you can sit there and not say anything but I’m gonna tell you this anyways…”. I view this exchange (which goes on to 16:44 and is not fully excerpted in my reasons) as Cst. Irwin acknowledging the accused’s right to silence, but also telling the accused that the police (in accordance with Singh, supra) are going to provide him with some information. Cst. Irwin does not denigrate the accused’s counsel or his legal advice, and does not tell the accused that he has to talk.

[97] The accused has a right to remain silent. However, Singh, supra also recognized (at paragraph 28) that the importance of police interrogation was also a consideration, and that there was no right “not to be spoken to” by the police. I view Cst. Irwin’s conduct as well within the proper boundaries of police interrogation pursuant to Singh.

[98] Then, there is the decision in R. v. Hankey ([2008] O.J. No. 2548 (Ont. S.C.J.)). In that decision, Panet J. was faced with a case where the accused, in excess of 60 times, stated that he did not want to talk, wanted to talk to his lawyer or both. Panet J. found (at paragraph 31-32) that the interview process, by itself, did not render the statement “less than voluntary”. He only found the interview to be involuntary because of the denigrating comments made by the interviewer about the advice that Mr. Hankey had received from his counsel. Those comments (set out at paragraph 32 of Panet J.’s reasons) were a significant attack on the integrity of the advice that Mr. Hankey had received, and would tend to render his statement involuntary.

[99] Counsel for the accused refered me to the decision in R. v. Mohamed (2014 ONSC 1348) as an example where a combination of tiredness and requests from the accused to return to his cell rendered a statement involuntary. It is instructive to note what McIsaac J. said about these issues (at paragraphs 16 and 17):

16. At approximately 12:40 a.m. Mr. Mohammed makes his first complaint of getting tired: see p. 270 of Exhibit C2. Following that event, the videotape shows him yawning on several occasions. He confirms that he had been co-operative and forthcoming up until that point because he did not want to seem like an “asshole” when Detective Goetz seemed initially to be a “nice guy”” see. P. 281 of Exhibit C2. The officer’s questions became more accusatory and aggressive: see pp. 295-6 of Exhibit C2. The accused not only says on several occasions that he is finished talking to the officer, he adds the important element of wishing to be returned to his cell: see p. 306 of Exhibit C2. From this exchange it would appear that the accused has possibly exhausted his attempts to negotiate any more with Detective Goetz. In response to Mr. Mohamad’s repeated requests to be returned to his cell, the officer responds that he was prepared to keep him under interrogation even if it took “all night”: see p. 307 of Exhibit C2.

17. This development leaves open the chance that Mr. Mohamad’s equivocal assertions of a wish to remain silent had become unequivocal. Based upon the possibility I cannot be convinced beyond a reasonable that what had originally been an unoppressive and benign relationship based upon the principles of equality of arms had deteriorated into a situation where Detective Goetz was using this detention in a manner abusive of the prisoner’s rights and the fairness of the criminal process.

[100] The difference between the case before me and Mohamad is clear. In this case, Cst. Irwin never said that he is prepared to question the accused “all night”, and deprive him of sleep. In this case, Cst. Irwin continues to engage the accused through evidence, conversation and other information when the accused asserted his right to silence, and the accused continues to participate in the interview.

[101] In addition, the accused was given the opportunity to speak to counsel on a second occasion towards the end of his interview, even though the circumstances did not require the police to provide the accused with a second conversation with counsel.

[102] Before leaving this issue, I should also note that there was nothing in Cst. Irwin’s interview that suggested that he was, in any way, denigrating the role of counsel or the advice that counsel had provided to the accused. Indeed, on one occasion when the accused said that he didn’t have to say anything at all, Cst. Irwin agreed with him.

[103] In the result, I am satisfied that the accused was not denied his right to silence and that the lack of response to his requests to speak to counsel did not result in his will being overborne or amount to police trickery.

The Allegedly Oppressive Conduct- Washroom Breaks

[104] There were two issues with respect to washroom breaks that the accused alleges were oppressive. First, the accused was not permitted to use the bathroom when he was first arrested. As a result, he ended up with a small amount of pee in his pants before he was permitted to go to the bathroom at the police station. The accused described it as “leaking”. Second, the accused ended up peeing in a cup on three occasions during the interview. I will deal with each issue in turn.

[105] First, there is the question of permitting the accused to use the washroom when he was arrested. Counsel for the accused argues that the police could either have permitted him to use a washroom in the house when he was arrested, or they could have permitted him to relieve himself by the side of the road before he was put into the minivan that he was being transported to the station in.

[106] For the following reasons, I conclude that the police provided the accused with the first reasonable opportunity to use the washroom once he was arrested:

a) The accused did not indicate to police that he needed to use the washroom until he was outside of the residence, beside the transport vehicle.

b) At that point, the only options that the police had were to either remove the handcuffs from the accused’s hands or to assist him in undoing his pants. In public, at the scene of the arrest, neither option was viable. The first option could compromise the safety of both the accused and the officers. The second option would have been an unjustifiable invasion of privacy that would undoubtedly have spawned its own application.

c) Having the accused relieve himself on the side of the street in a busy residential neighbourhood is both illegal and potentially a violation of the accused’s privacy and personal dignity.

d) Defence counsel then argues that the accused could have been taken back into the house to use the washroom. Again, this raises the same impossible choice as I have set out in paragraph (b), but with an added problem. Either the accused would have to be in the washroom (that is subject to a search warrant and not yet searched) by himself or the police will have to be in the washroom with him. The risks to the accused’s safety are higher, as he might have decided to engage in self harm with items in the washroom. The risks to officer safety remained, and were also considerable. Finally, the risks associated with the invasion of the accused’s dignity and privacy remained and were also considerable.

e) On arrival at the station, the un-contradicted evidence was that there was no washroom between the unloading area and the interview room. It was also clear that the accused had not been properly searched when he was arrested. As a result, a further search was necessary before he was permitted to leave the interview room and use the washroom.

f) The accused was allowed to use the washroom the moment that Cst. Irwin finished searching him and had removed the handcuffs.

[107] The accused was given the first reasonable opportunity to use the facilities. In addition, the accused did not ask for clean clothes or to clean himself up after there was some leakage. I do not find this to be oppressive conduct.

[108] Then there were the incidents where the accused peed in a cup. All of these incidents happened later in the interview. As a result, some context is necessary. First, between 13:00 and 18:39, which is the last time that the accused peed in a cup, the accused had four washroom breaks in addition to two opportunities to empty out the cup that he had peed in. The last of those four washroom breaks was at 15:30.

[109] It is worth outlining two incidents that took place within approximately half an hour of each other. First, at 16:52 the accused is left in the interview room alone. He has been previously told that the room is recorded and to wave at the camera if he needs anything. During the course of this break, up to about 17:10, the accused dances around and does a few other things. At 17:12 he says that he has to pee in a cup. He repeats this comment and, within about thirty seconds repeats that he has to pee. Approximately fifteen seconds later, the accused goes into the corner and relieves himself in a cup. Within a minute or so, Cst. Irwin arrives to take the accused to the washroom.

[110] The accused is left alone again between 17:15 and 17:31. An officer comes into the room at 17:31 and tells the accused not to pull at the wall microphones. The accused tells the officer that he wants a telephone that he can dial. The officer tells the accused that “it doesn’t work like that in here”. The officer then leaves.

[111] Almost immediately after the officer leaves the room, the accused asks to use the washroom again. The accused makes this request again at 17:43 a well, but in this time period he is also asking for a telephone. The accused then relieves himself in a cup just more than half an hour after he had done so previously. Cst. Irwin comes back into the room at 17:48 and has the accused throw the pee in the cup out into the washroom.

[112] These two incidents must be considered in context. The accused had a significant number of bathroom breaks between the start of the interview and the first incident at 17:14. His last bathroom break had been approximately an hour and forty minutes prior, which is not a significant amount of time. The accused also gave the officers virtually no warning that he needed to use the facilities. Even without that warning, Cst. Irwin arrived in the interview room almost immediately. There is nothing that is oppressive or otherwise problematic about this incident.

[113] On the second incident, Cst. Irwin did not arrive until approximately five minutes after the accused had relieved himself in a cup. However, the accused had relieved himself approximately half an hour earlier. It was not unreasonable for Officer Irwin to assume that the accused did not need to relieve himself at that time. Again, there is nothing that is oppressive or otherwise problematic about this incident.

[114] When I step back and look at all of the issues relating to washroom breaks, I conclude that the officers provided appropriate washroom breaks, and that there was no conduct that was oppressive or would otherwise have affected the voluntariness of the accused’s statement.

The Allegedly Oppressive Conduct- Poor Food

[115] The accused testified that the food that was offered to him was both of poor quality and stale. Therefore, although the police offered him food, the accused refused it. The accused’s counsel points to this circumstance as being one of the potential factors demonstrating oppression. I disagree.

[116] First, there is nothing in the transcript that would suggest the accused thought the food was stale. Instead, at 19:46, almost at the end of the interview, the accused and Cst. Irwin have the following exchange:

IRWIN: Grab a chair.

BABBINGTON: I’m just hungry, Man.

IRWIN: Okay. Well, I, uh, I brought you food before but you didn’t want it.

BABBINGTON: Where is it?

IRWIN: Uh, I think it’s out there.

BABBINGTON: Not that…

IRWIN: I don’t know if it’s any good though, right?

BABBINGTON: I don’t want that, Man.

IRWIN: Take a seat. Have a seat.

BABBINGTON: I tell you about it. I keep telling you. I thought you put something in it for me to swallow.

IRWIN: No, no, no, no, no. I wouldn’t do that.

BABBINGTON: Like I told you, this girl’s trying to set up m-, people.

IRWIN: All right.

BABBINGTON: (Inaudible) setup girl.

[117] It is clear from this exchange that the police offered the accused food, and that he refused to eat it because he thought they might have put something into it. Ultimately, the decision not to eat was a decision that the accused made and it was not made because the food was stale.

[118] Second, the accused was either offered food or asked if he was hungry on more than one occasion during the course of the interview. At 14:40, the accused was asked if he was hungry and there was a break in the interview. At 14:58, Cst. Irwin came back in with food. The accused was asked if he was hungry and he said not really.

[119] Then again at 15:38, the accused was asked if he was hungry. At that point the accused said “No. Sir, I can’t even eat, me want go home.” If the food had been stale, this would have been an opportunity for the accused to tell Cst. Irwin that fact.

[120] The context of the whole interview is important. The accused had requested a specific chair and the police had gotten him a specific chair. From that fact, it is reasonable to infer that Cst. Irwin was cognizant of the accused’s needs. When all of these facts are taken together, it is clear that there is no merit to the allegation of poor or stale food being provided to the accused.

The Sleep Issues

[121] Counsel for the defence alleges that the interview was oppressive, and deprived the accused of an operating mind, because it was too long and because the accused was sleepy. I reject both assertions.

[122] The total time that the accused spent at the police station was nine hours. In terms of the interview, however, I note that the amount of time that the accused and Cst. Irwin spent talking to each other was only approximately six hours. This is not, in and of itself, a particularly long time for a police interview for a homicide. In that regard, I note the decision in R. v. Merritt (2017 ONSC 2449) where Dawson J. was dealing with a statement of the co-accused (Mr. Fattore) that was fifteen hours long. Dawson J. noted (at paragraph 73) that this was a very long interview. However, the interview I have was only six hours, which wasn’t much longer than the average Court day. The length of the interview was not oppressive and did not have any discernable effect on the accused’s operating mind.

[123] The more important question is whether the accused was tired during the interview. The accused’s counsel points to the fact that the accused had his head down on the table on a couple of occasions, and that the accused told Cst. Irwin that he was tired on more than one occasion.

[124] I reject this concern for two reasons. First, while the accused had his head down on the table a couple of times, he was also singing and dancing during breaks, especially during the beginning and middle of the interview. This was not the behaviour of someone who was tired.

[125] Second, the accused seemed to suggest that he had not slept well the previous night because he had been drinking. At 12:16, he has the following exchange with Cst. Irwin:

IRWIN: So do me a favour, are you tired right now?

BABBINGTON: Very, yeah.

IRWIN: Yeah? When’s the last time you got some sleep?

BABBINGTON: Uh…

IRWIN: Did you sleep last night?

BABBINGTON: Uh, well, y-, kinda. I was drinking.

IRWIN: You were drinking?

BABBINGTON: Yeah, I…

IRWIN: Are you…

BABBINGTON: …was drinking.

IRWIN: …you’re, are-, how are you now? Are you feeling okay?

BABBINGTON (Indicates.) Interview package, Travis Babbington…

IRWIN: Yeah.

[126] Then, just over a minute later, the accused has the following exchange with Cst. Irwin:

BABBINGTON: No. I-, honestly, I don’t know. I was in the deep of, deep of my sleep.

IRWIN: So you were drinking last night. You didn’t get much sleep, or did you?

BABBINGTON: I don’t even know if I did get some sleep, but, um, I still feel tired, though.

IRWIN: Yeah?

BABBINGTON: Yeah.

IRWIN: But are you good to be talking to me right now? Like are you, you, you okay? Do you feel like you’re understanding things that I’m saying?

BABBINGTON: I understand it clearly everything. It’s not…

IRWIN: Perfect.

BABBINGTON: …like I’m, I’m drunk or nothing.

12:18

IRWIN: Not like you’re drunk or nothing?

BABBINGTON: I’m not drunk.

IRWIN: How much did you drink last night?

BABBINGTON: I never drank nothing, uh last night.

IRWIN: Oh.

BABBINGTON: At all.

[127] It is clear from these two exchanges that the accused was, even on the day of the interview, telling Cst. Irwin inconsistent things. These inconsistencies leave me with no confidence that the evidence the accused gave on the voir dire nearly three years later that he was tired was accurate. I reject this evidence, and conclude that the accused was not so tired the day of the interview that his operating mind was overborne.

[128] In summary, there is little if any merit to the concerns raised by the accused about his interview. However, I must now step back and consider the interview as a whole.

d) The Global Assessment

[129] I have concluded that none of the concerns raised by the accused, on their own, suggest that the statement was not voluntary or the will of the accused was not overborne.

[130] Even when I consider the issues raised by the accused as a whole, I am still satisfied beyond a reasonable doubt that the accused’s statement was voluntary for the following reasons:

a) The alleged inducements that were offered in this case are not inducements within the meaning of the case law. They would have had no effect on the accused’s operating mind.

b) The alleged oppressive circumstances in this case (the food, the washroom issues and the claim that the accused was tired) are not significant, do not amount to oppression and did not overbear the will of the accused.

c) There was nothing in the circumstances of either the arrest or of the statement itself that amounts to police trickery.

[131] In short, there is nothing in the conduct or circumstances of the May 8^th, 2020 statement that raises any concerns with respect to its voluntariness. The Crown’s motion to rely on this statement for the purposes of cross-examination is granted.

Conclusion

[132] For the foregoing reasons, I find both statements to be voluntary. The February 10^th, 2017 statement may be used as part of the Crown’s case in chief. The May 8^th, 2017 statement may be used for the purposes of cross-examination of the accused.

LEMAY J

Released: March 2, 2020