COURT FILE NO.: CR-19-15014

DATE: 20210111

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ADAM STRONG

Defendant

COUNSEL:

Jinwon Kim and Bryan Guertin, for the Crown

Tom Balka and Justin Guile, for the Defendant

HEARD: September 30, October 1, 5, 6, 7, 13 and 15, 2020

REASONS ON VOLUNTARINESS VOIR DIRES

DI LUCA J.:

[1] Adam Strong is charged with the first-degree murder of two young vulnerable women, Kandis Fitzpatrick and Rory Hache. The Crown alleges that Mr. Strong unlawfully confined and/or sexually assaulted both Ms. Fitzpatrick and Ms. Hache and then killed them. The Crown further alleges Mr. Strong dismembered and disposed of their bodies in order to cover up his crimes.

[2] Mr. Strong gave two lengthy videotaped statements to police. The first statement was given on December 30, 2017, a few hours after his initial arrest. The second statement was given on November 8, 2018. The Crown seeks to tender these statements at Mr. Strong’s trial, and as a result seeks a determination of their voluntariness.

[3] Mr. Strong is being tried before me judge-alone and the pre-trial motions have proceeded along with evidence on the trial proper. On October 15, 2020, after hearing the evidence and submissions on the voir dires, I advised the parties that I was satisfied that the Crown had proven the voluntariness of both statements beyond a reasonable doubt. I indicated that reasons were to follow. These are my reasons.

Brief Background of Alleged Offences

[4] Ms. Fitzpatrick and Ms. Hache were both in their late teens when they went missing. Around the time of their respective disappearances, they were undergoing significant personal challenges. They had turned to drugs, were involved in the sex trade and were at times living on the street.

[5] Ms. Fitzpatrick went missing in approximately March of 2008, though the police were only notified in 2010. Her whereabouts have never been discovered. However, her DNA was found on a specialty hunting knife located inside a kitchen drawer in Mr. Strong’s apartment. Her DNA was also located inside a chest freezer located in Mr. Strong’s bedroom.

[6] Ms. Hache went missing in late August 2017. On September 11, 2017, her dismembered and disembowelled torso was found in Lake Ontario. While police were able to identify the torso as belonging to Ms. Hache, they developed no leads on a suspect despite an extensive investigation.

[7] On December 29, 2017, plumbers were called to Mr. Strong’s residence by the upstairs tenants who noted that the plumbing was backed up. The plumbers snaked the drains and began pulling up strips and chunks of a substance that appeared to be flesh of some sort. The plumbers were concerned that the flesh was possibly human, so they called 911.

[8] Police arrived, spoke with Mr. Strong and quickly learned that a body was located in the home. A subsequent search resulted in the discovery of Ms. Hache’s head, pelvis, arms and legs inside the chest freezer located in Mr. Strong’s bedroom. Flesh and skin had been removed from certain body parts and a further quantity of flesh and skin was later extracted from the drains of the home. Ms. Hache’s blood was also found in various locations inside Mr. Strong’s apartment, including on BDSM restraints. Lastly, her DNA was found on a number of sex toys also located in the apartment.

[9] Based on the flesh-like material observed at the scene and Mr. Strong’s comments to the officers attending at the scene, Mr. Strong was initially arrested for murder. Once processed at the police station, he was advised that he was only being charged with indignity to a human body, but that the investigation was ongoing. In the early morning hours of December 30, 2017, Mr. Strong was interviewed by Det. Darren Short and Det. Hermano Dorego. This interview lasted approximately three hours.

[10] On November 8, 2018, the charge of indignity to a human body was withdrawn by the Crown. Mr. Strong was then re-arrested and charged with two counts of first-degree murder against Kandis Fitzpatrick and Rori Hache, respectively. That same day, he was interviewed by Det. Paul Mitton. This interview lasted almost twelve hours.

Legal Principles of Voluntariness

[11] The common law confessions rule governs the admissibility of statements made by a defendant to a person in authority. The rule is premised, in part, on a recognition that people will sometimes falsely confess to crimes: see R. v. Hart, 2014 SCC 52 at paras. 69-71. The core concern in this regard is one of reliability. The rule also recognizes that properly conducted police interviews advance the societal interest in the effective investigation of crime. As such, the rule recognizes that the police can and should speak with persons whom they suspect or believe have committed criminal offences.

[12] Voluntariness is the cornerstone of the confessions rule. Where a person speaks to police voluntarily, concerns about the reliability of the statement are attenuated such that admissibility is warranted. In R. v. Oickle, 2000 SCC 38, [2000] 2 SCR 3, the Supreme Court of Canada confirmed the long-standing common law rule that a statement made to a person in authority will not be admissible if it is made in circumstances that leave a reasonable doubt as to voluntariness. In R. v. Singh, 2007 SCC 48, [2007] 3 SCR 405, the Supreme Court noted that voluntariness encompasses the right to silence, meaning the right of the accused person to make a meaningful choice about whether or not to speak to the police.

[13] In assessing whether a statement is voluntary, a contextual assessment is required. The focus of the assessment is on the conduct of the police and its effect on the accused’s choice. The test is objective, but the accused’s individual characteristics are a relevant consideration. The relevant factors include the nature of any threats, promises or other improper inducements, the presence of oppressive circumstances, the lack of an operating mind and police trickery: see R. v. Brown, 205 ONSC 3305 at paras. 89-90 and R. v. Spencer, 2007 SCC 11, [2007] 1 SCR 500 at para. 12.

[14] There are no hard and fast rules as to what will render a statement involuntary. Ultimately, the issue is whether there is a reasonable doubt that the defendant’s will has been overborne. It is not enough to simply identify an inducement, threat or promise. There must be a connection between the inducement, threat or promise, and the decision to speak to police. Police persistence in the face of repeated assertions of the right to silence may give rise to real concerns about the voluntariness of a statement. However, the right to silence does not extend to the right not to be spoken to by authorities, nor does the right to silence prohibit questioning by police. Police persuasion which falls short of denying the accused the right to choose whether to speak does not breach the right to silence and does not render a statement involuntary: see Singh, supra, at paras. 46-47 and Brown, supra, at para. 88.

[15] In terms of assessing inducements, the Court of Appeal offers the following guidance in R. v. Fernandes, 2016 ONCA 722, at paras. 26 and 27:

Where the state induces a suspect to confess, regardless of whether the inducement comes in the form of a threat or a promise, the confession will be inadmissible when the inducement, whether standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the will of the subject has been overborne: Oickle, at para. 57.

The most important consideration in determining whether the accused's statement has been induced by such a threat or promise is whether there was a quid pro quo offer by the interrogators. A quid pro quo offer is an inducement for the suspect to confess that raises the possibility that the suspect is confessing, not because of any internal desire to confess, but merely in order to gain the benefit offered by the interrogator: R. v. Heatley, 2015 BCCA 350, 375 B.C.A.C. 194, at para. 6, and Oickle, at para. 56.

[16] While the existence of a quid pro quo often signals concerns about voluntariness, it is not the quid pro quo itself that renders the statement involuntary. Rather, as stated by Deschamps J. in R. v. Spencer, 2007 SCC 11 at para. 19, “…while a quid pro quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry into voluntariness.”

[17] Where an interrogating officer resorts to techniques suggesting it would be “better” for the accused to tell the truth and confess, there is a risk that the language used will create a prohibited quid pro quo and render the statement involuntary, see R. v. Oickle, at para. 44, and R. v. Wabason, 2018 ONCA 187, at paras. 16-20. Similarly, language that suggests that a detainee’s credibility is at its highest during an interview can also suggest a prohibited quid pro quo that undermines both the right to silence and legal advice given by counsel, see R. v. Van Wyk, [1999] O.J. No. 3515 (S.C.) at paras. 160-168 and R. v. Othman, [2018] O.J. No. 6751 at paras. 12-19.

[18] In terms of oppression, a statement will be rendered involuntary where the circumstances of detention are so oppressive that they leave a reasonable doubt about whether the accused was able to make an independent choice to speak to the police or to remain silent. The concern is that the police may abuse their authority over an accused to negate the accused’s ability to make an independent choice: see R. v. Fernandes, supra, at paras. 33 and 36. Examples of oppressive circumstances include situations where a detainee is deprived of food, clothing, warmth, sleep or medical attention. It can also include instances where police questioning is prolonged and aggressive: see R. v. Fernandes, supra, at para. 34, R. v. Hoilett, 1999 CanLII 3740 (ON CA), [1999] 121 O.A.C. 391 (C.A.), at paras. 25-26.

[19] The onus of proving voluntariness rests entirely with the Crown beyond a reasonable doubt. The accused is not obligated to call any evidence, and the presence of a reasonable doubt on voluntariness renders the statement automatically inadmissible. Ultimately, in order for the statement to be admissible for any purpose, I must be sure that it is voluntary.

The December 30, 2017 Statement

[20] The first interview was conducted by Det. Darren Short and Det. Hermano Dorego. Det. Darren Short was the Officer in Charge of the investigation and became involved when Ms. Hache’s torso was found in the Oshawa Harbour on September 11, 2017. Det. Dorego also had been involved with the investigation since that time. Despite an extensive police investigation, Mr. Strong had not been identified as a suspect in the murder of Ms. Hache until his happenstance arrest on the night of December 29, 2017.

[21] Following Mr. Strong’s arrest, Detectives Short and Dorego were advised that strips of flesh- like substances had been retrieved from a drain and that a number of body parts were subsequently found inside Mr. Strong’s apartment. While police did not have a definitive identification on the body parts at that time, they believed the body parts belonged to Rori Hache in view of a tattoo located behind her ear.

[22] Mr. Strong was initially arrested for murder. However, once he was taken to the police station, he was advised that he was only being charged with indignity to a body. The decision to proceed on the lesser charge was taken after the detectives consulted with the Crown Attorney, Mr. O’Driscoll.

[23] Mr. Strong was processed at the station, placed in contact with duty counsel and then lodged in a dry cell. At approximately 1:19 a.m. on December 30, 2017, Det. Dorego removed Mr. Strong from the cell and brought him to an interview room. He was accompanied by Det. Short. The interview started at 1:20 a.m. and lasted approximately three hours. Det. Short and Det. Dorego both testified that at no time either before, during or after the interview were any promises, threats or inducements given to Mr. Strong either on or off camera, nor was anyone else observed to do so.

[24] Det. Dorego testified that Mr. Strong appeared to understand his circumstances. He was friendly and easy to talk to. He appeared alert and was able to express and assert himself. Det. Dorego had the impression that Mr. Strong had a clear mind and was cognizant of which questions he wanted to answer and which he did not. He noted what he perceived to be arrogance by Mr. Strong in response to an appeal to morality that was advanced towards the end of the interview.

[25] The recording of the interview was tendered through Det. Dorego. Counsel agreed that the accompanying transcript could be used as an aide, though the actual evidence would be the words spoken as captured in the video. For ease of reference, I provide page references to the transcript where I review the content of the statement. As well, rather than summarizing the entire video, I will focus on the areas highlighted by counsel in their written material and oral submissions. In doing so, I remind myself that the onus remains squarely on the Crown and that I must consider the interview in its entirety and in context in order to determine whether the Crown has met its onus.

a. Page 3-5: At the outset of the interview, Mr. Strong is advised that while he is currently facing a charge of indignity to a body, the investigation is ongoing, and a murder charge is a possible outcome. Mr. Strong indicates that he understands. He also indicates that up until that point, he has been treated well, with no threats, promises or coercion.

b. Page 9: Minutes into the interview, Mr. Strong asks whether he can “terminate” or “leave” the interview. Det. Short advises Mr. Strong that he does not have to say anything in response to questions, but he does not directly answer Mr. Strong’s question.

c. Page 10-11: Det. Short tells Mr. Strong that he appears calm and Mr. Strong agrees. When Det. Short suggests that being calm in the circumstances is concerning, Mr. Strong indicates that he is tired and has not been able to sleep. Det. Dorego testified that he was not concerned about Mr. Strong’s level of alertness, though he agreed that Mr. Strong may well have been tired. Det. Short also testified that Mr. Strong appeared alert and attentive during the interview.

d. Page 12: Mr. Strong advises that he has a pipe bomb in a storage cubby in his bedroom. He explains that he does not want anyone to get hurt or for property to be damaged.

e. Page 12: Mr. Strong indicates that he feels cold and is shivering. Det. Dorego testified that he did not observe any shivering, though he agreed that it may have been colder in the interview room than in the cell area. Det. Short testified that the room felt “comfortable.”

f. Page 13: Mr. Strong indicates that the water was not working in his cell. He asks “what’s up with that” but is not provided an explanation. According to Det. Short, Mr. Strong was placed in a “dry” cell which had no running water. This was done to prevent the destruction of any evidence that may have been on Mr. Strong at the time of his arrest. Later in the interview, when Mr. Strong asked to use the bathroom, he was taken to a cell that had running water.

g. Page 15-16: Mr. Strong asks whether he can sit at the table that is in the interview room. Det. Short agrees but tells Mr. Strong not to put his head down and fall asleep.

h. Page 17: Mr. Strong is told that the police want to get to the bottom of the matter and that this is his opportunity to provide answers to the questions the police have. Det. Short indicates “I can’t force them out of ya. It’s gotta be a conscious decision made by you.”

i. Page 18: Mr. Strong states that he does not want to see any photographs. He declines to answer questions about Ms. Hache’s remains in his freezer. Det. Short then asks “So, are we to think the worst of you then?” Mr. Strong replies, “You think what you wish of me.”

j. Page 19: Mr. Strong states “I was told these things could go on for, like hours. Is that true?” Det. Dorego replies affirmatively. Mr. Strong asks if the interview will go on for hours and Det. Dorego replies, “depends.” Det. Dorego denied that this was a suggestion that if Mr. Strong confessed the interview would be shorter, though he agreed that Mr. Strong could have taken the comment to mean that.

k. Page 22-23: Det. Short turns the discussion to the topic of Ms. Hache’s torso being found in the lake. Mr. Strong initially asks, “can I go?” Det. Short then tells Mr. Strong that he does not have to talk, “just sit there and listen to us.” Det. Short then returns to the topic of the torso in the lake and tells Mr. Strong, “So I don’t know how it doesn’t bother you. Or, or you can just sit there and, and just say nothing.” Mr. Strong replies by mentioning that he has been scuba diving in Lake Ontario. He then proceeds to engage the officers in a discussion of scuba diving.

l. Page 25: Mr. Strong states “Um, I have, uh, movies from the library that need to be returned…I know that seems trivial.”

m. Page 25-26: Det. Short refuses to commit to an end time for the interview. Mr. Strong asks “you guys aren’t gonna start yelling and shit, are you?” Det. Short assures Mr. Strong that they will not.

n. Page 27-28: Det. Short attempts an emotional appeal to Mr. Strong’s reputation. He also tells Mr. Strong that this is his opportunity to tell police whether there is a simple explanation that “is not as bad as everybody is thinking.” Det. Dorego denied that this was an attempt to suggest that Mr. Strong could protect his reputation by speaking.

o. Page 28-29: Det. Short tells Mr. Strong that he is within his rights not to speak to them. He then states, “It’s between you and your lawyer” and then explains that as a 45 year old man, Mr. Strong can make his own decisions that he will have to live with. He asks Mr. Strong whether he killed Ms. Hache and Mr. Strong declines to answer. Det. Short then asks Mr. Strong whether there are “other girls” that the police should be aware of. Mr. Strong says “no.”

p. Page 34: Mr. Strong asks for some food to be delivered to his cell and states that he has not eaten since Thursday afternoon at 4:00 p.m., approximately 34 hours prior.

q. Page 36: Mr. Strong asks to go back to his cell. He also repeats his desire to not look at the photographs the police officers are presenting to him.

r. Page 37: Det. Dorego tells Mr. Strong that he’s a grown man who can make his own decisions and speak for himself.

s. Page 38: Mr. Strong asks to go back to his cell and again asks how long the interview will last indicating that he is “quite tired.” He also mentions that his cell did not have pillows or blankets, to which Det. Short replies “…you’ve got a lot bigger problems facing ya…I’m really, really, really starting to think you don’t care.”

t. Page 39: Mr. Strong states “I was told to keep my mouth shut” and he tells Det. Short, “if you take that as not caring, my apologies.” Det. Dorego explains that the police are not trying to undermine the “lawyer, justice system.” He also states “at the end of the day, its just, we want the truth.” In cross-examination, Det. Dorego denied that the intent of these questions was to essentially undermine the advice given by counsel. He maintained that he was trying to provide Mr. Strong with alternatives by indicating to him that he had a choice about whether or not to speak and the choice was his to make.

u. Page 40-54: Mr. Strong declines to answer specific questions about Ms. Hache but does respond to questions about his cell phone and tablet. He also answers questions regarding various other topics, including previous girlfriends, neighbours, visitors at his apartment, previous employment, etc.

v. Page 54: In the context of discussing prior relationships, Mr. Strong reveals that he has been single for four years. He then offers “Me and my hand are getting along really well.”

w. Page 55: Mr. Strong declines to answer questions about whether he is sorry about Ms. Hache.

x. Page 62-63: Mr. Strong is shown a photograph of Ms. Hache. After looking at the photograph, he asks whether he can turn it over. Det. Short says no and Mr. Strong replies that he is “not gonna look at it anymore.” Det. Short suggests that Mr. Strong stared at the photograph a few times, and Mr. Strong replies “Glanced. Did not stare.”

y. Page 69: As Det. Short is discussing certain details about Ms. Hache’s life and the efforts undertaken to search for her body, Mr. Strong interjects stating, “Can I go back to my cell now? Cause I’m tired as fuck.”

z. Page 75: Mr. Strong asks Det. Dorego to back away from him, stating that “it’s not making me feel very comfortable.” He further states to Det. Dorego, “I know you’re not threatening.” Det. Dorego testified that his initial seating position in the room was not tactical but he agreed that he later moved his chair closer to Mr. Strong on purpose.

aa. Page 76: Det. Short presses Mr. Strong on the fact that he is not denying the allegations. Mr. Strong states “I was told not to say anything.” Det. Short replies, “…so that’s, uh… That’s a sign right there.” In his evidence, Det. Short agreed that this was a reference to the advice given by counsel, but he maintained that he was not concerned that Mr. Strong would take the comment to imply that reliance on counsel’s advice was a “sign” of guilt.

bb. Page 78-80: Mr. Strong explains that at the moment he was first arrested he had an intention to “spill his guts”, and then he spoke to duty counsel and was advised to “shut up” for his protection. He further states, “I know that’s a disappointment for you guys.”

cc. Page 84-86: Mr. Strong asks to go to the bathroom, and he is permitted to leave the room to do so. He is also permitted to re-fill his water. Once he returns to the interview room, he thanks the officers for letting him use the bathroom. At this point in the interview, Det. Short excuses himself and leaves. According to Det. Short, he decided to leave the interview as he felt that Det. Dorego had more rapport with Mr. Strong. Det. Dorego then adopted a “more friendly” tactic.

dd. Page 89: Det. Dorego attempts to get Mr. Strong to talk about the reasons for the “plumbing issues” at his apartment and Mr. Strong declines to speak. During this exchange, Mr. Strong appears to chide Det. Dorego for the attempt to get him to speak about the issue.

ee. Page 90-114: Mr. Strong speaks at length about his neighbours, campfires in his back yard, grilled meats and stews he would prepare for guests, scuba diving, his weight, plans for the future, employment history, former girlfriends and various other topics.

ff. Page 115: Mr. Strong states, “I have to take a dump” and he is taken to the bathroom again. Once he returns to the interview room, he is provided with food.

gg. Page 118-128: Mr. Strong continues discussing various topics including his history of drug experimentation, his social media presence, religion, etc. Mr. Strong indicates that he is “satiated” after eating the initial food delivered to the interview. Det. Dorego tells him there is more food coming.

hh. Page 129-130: Mr. Strong thanks Det. Dorego for letting him have a “peaceful shit.” Det. Dorego then confirms with Mr. Strong that there were no threats or promises made while off camera, and Mr. Strong engages in a discussion about whether this is something that actually happens.

ii. Page 131: Det. Dorego asks Mr. Strong whether the photographs, which are face up, are bothering him and whether Mr. Strong wants him to turn them over. Mr. Strong replies, “I dunno, I’m kind of over it.” He then adds, “I appreciate the thought.”

jj. Page 140: Mr. Strong is asked whether he feels sorry. He replies “Can not answer that question.” He then adds, “I know I have a little smirk on my face. I know.”

kk. Page 147-153: Mr. Strong is provided a McDonald’s meal and discusses his order preferences and stories about McDonald’s food.

ll. Page 156-160: Mr. Strong continues to talk about scuba diving and magnet fishing. He also discusses a Facebook photograph of him brandishing a large knife.

mm. Page 161-168: Mr. Strong discusses some of the sex paraphernalia found in his apartment, including some of the sexual practices he engaged in with former girlfriends.

nn. Page 171–173: Just prior to completing the interview, Det. Dorego shows Mr. Strong a photograph of Ms. Hache’s torso and makes an emotional plea to get Mr. Strong to engage. Mr. Strong asks if he can turn the photograph over and then reaches over and turns the photograph over himself. He asks Det. Dorego if “the tissues are often needed” and then states he does not need any.

Analysis and Findings - December 30, 2017 Statement

[26] In view of the positions of counsel, the focus on the voluntariness analysis of the December 30, 2017 statement rests on whether the Crown has proven beyond a reasonable doubt that the statement was provided in the absence of inducements and oppressive circumstances that resulted in Mr. Strong’s will being overborne. Counsel agree that there is no issue that Mr. Strong had an operating mind as that phrase is understood in the caselaw. As well, there is no suggestion that Mr. Strong was threatened in any way or subjected to impermissible police trickery.

[27] I find that the Crown has proven beyond a reasonable doubt that Mr. Strong’s statement on December 30, 2017 was voluntary. I readily conclude that when this statement is viewed as a whole, it is perfectly clear that Mr. Strong freely exercised his will to choose what to speak about and what not to speak about. Throughout the interview, Mr. Strong is engaged, polite and talkative. He makes clear that he is not prepared to speak about certain topics, particularly anything related to Ms. Hache’s death. Whenever the officers raise the topic, Mr. Strong steadfastly refuses to answer their questions. He also repeatedly demonstrates that he is willing to speak openly and at length about a myriad other topics which do not touch on Ms. Hache’s death. As the Crown correctly notes, this is the hallmark of voluntariness. As such, I have no doubt that Mr. Strong was capable of exercising his free will to choose when and when not to speak.

[28] In terms of the circumstances of oppression, I am not prepared to find that the conditions under which the statements were taken leave me with any doubt as to its voluntariness. I note that throughout the statement, Mr. Strong does not present as oppressed, intimidated, scared or frightened. He is not reticent to make requests of the officers. He tells them he does not want to see certain photographs. When Det. Dorego moves his chair closer, Mr. Strong tells him to back off as it is making him feel uncomfortable. At the end of the interview, Mr. Strong asks if he can turn over a photograph of Ms. Hache’s torso and then does so himself. He speaks to the officers in colloquial and, at times, crude language. He asks for and is provided food, water, and washroom breaks.

[29] While Mr. Strong initially states he is cold, he does not do up his sweater nor does he raise any further concerns throughout the interview. I accept that Mr. Strong may have been tired during the interview. However, throughout the interview, he appears awake, lucid and engaged. This is not a circumstance where issues of sleep deprivation give rise to concerns about the voluntariness of the interaction.

[30] I also accept that Mr. Strong asks on a number of occasions to leave the interview room or terminate the interview. As a matter of law, the police are entitled to continue an interview, despite a detainee’s desire to leave or stop. While in some circumstances, police persistence in the face of repeated assertions of the right to silence may give rise to a concern about voluntariness, this is not one of those cases. Mr. Strong obviously would have preferred to end the interview at times. However, he was also prepared to talk at length with the officers about topics which he deemed appropriate. This is not an instance where I have a doubt that his will was overborne by police persistence. Viewed as a whole, I am satisfied that Mr. Strong’s statement is untainted by any oppressive circumstances.

[31] In terms of inducements, it is clear that the police employed a number of techniques or tactics in an effort to engage Mr. Strong in discussion. There are several instances where the officers make a plea to his emotions and reputation. They also use pleas of empathy for Ms. Hache’s family members. There is nothing per se wrong or impermissible with the police using techniques of persuasion to encourage a detainee to provide a statement. Indeed, it has been repeatedly recognized in the caselaw that few detainees spontaneously confess. The issue is more nuanced. Ultimately, I must determine whether the techniques adopted leave me with a reasonable doubt about the voluntariness of the statement. In this regard, I must consider whether the techniques used amount to what is described as a “quid pro quo” – essentially the elicitation of a statement in exchange for something in return.

[32] When I view the statement as a whole, I am satisfied that it was given free of impermissible quid pro quos. To the extent that the police resorted to emotional or empathetic pleas, those pleas fell on deaf ears. Throughout the interview, whenever presented with a plea to emotion, Mr. Strong remains steadfast in his decision to not discuss the issues surrounding Ms. Hache’s death. The most telling incident occurs at the end of the interview, wherein Det. Dorego attempts one last effort at prompting an admission by involving a plea to Mr. Strong’s emotions and empathy. Mr. Strong responds by asking whether tissues available in the interview room are often used. Viewed in context, Mr. Strong’s comment is essentially a sarcastic means of noting that the officer was advancing a “sob story” as a tactic.

[33] I turn lastly to considering whether the comments made by officers had the effect of undermining the right to counsel. In particular, I focus on the instances where the officers advised Mr. Strong that notwithstanding the legal advice he received, it was up to him as an adult to decide whether or not to speak. I also focus on the instance where Mr. Strong’s silence was linked to “not caring” and in particular, when Mr. Strong suggested that he had been advised by counsel to remain silent, Det. Short replied to the effect “well that’s a sign right there.”

[34] Counsel argues that these comments essentially undermine the right to silence and the advice given by counsel. I agree that the comments are potentially troubling. The comments about the choice to speak belonging Mr. Strong notwithstanding the legal advice given are not legally inaccurate. However, in certain circumstances comments of this sort can undermine the advice given by counsel. In this case, I am comforted by the fact that the officer told Mr. Strong that he was not seeking to undermine the advice of counsel. It is also clear that the officer did not persist on the issue once it was obvious that Mr. Strong was not moved.

[35] In terms of the comments linking the exercise of the right to silence with not caring, I agree with the defence that this type of comment is problematic. It runs the risk of undermining the exercise of the right to silence by suggesting that silence suggests a lack of caring or empathy for the victim. I also agree with the Crown’s submission that it would have been better if the comment had not been made. That said, I also agree with the Crown’s further submission that when viewed in context, the comment was of no moment. In the portions of the interview that follow, Mr. Strong is clearly prepared to talk at length about certain topics and remains silent whenever the discussion veers towards issues relating to Ms. Hache. Ultimately, I am satisfied that the above-noted comments did not ultimately undermine Mr. Strong’s right to silence or otherwise render his statement involuntary.

[36] On the whole, I am satisfied beyond a reasonable doubt that the statement given by Mr. Strong on December 30, 2017 is voluntary and therefore admissible.

The November 8, 2018 Statement

[37] Mr. Strong’s second statement took place on November 8 and 9, 2018. At that point in time, Mr. Strong had been in custody for just over 10 months. He was facing one count of causing an indignity to Ms. Hache’s body. He was represented by counsel.

[38] In the months following his initial arrest, the police undertook an extensive investigation of Mr. Strong’s apartment and had obtained forensic analyses of many items of evidence. In view of the advances made in the investigation and following consultation with the Crown Attorney, the police decided to re-arrest Mr. Strong on two counts of first degree murder in relation to Kandis Fitzpatrick and Rori Hache, respectively. Mr. Strong was taken to court on November 8, 2018, and the Crown formally withdrew the initial charge of causing an indignity to the body of Ms. Hache. Police then re-arrested Mr. Strong for the first degree murders and transported him to the police station for processing and an interview. Mr. Strong’s defence counsel was advised of this plan in advance.

[39] Det. Paul Mitton was the officer assigned with the task of conducting the interview. He had no prior involvement with Mr. Strong and met him for the first time when he entered the interview room. Det. Mitton was a very experienced officer, having conducted many interviews over his 30 years of policing. He was also a qualified polygraph examiner. In preparation for the interview, he consulted with the lead investigators and reviewed electronic file material. He also met with a forensic psychiatrist, Dr. Peter Collins, in order to get some assistance with interviewing strategies.

[40] The video recording of the second statement was introduced through Det. Mitton. In his evidence, Det. Mitton confirmed that the video recording was accurate. He also confirmed that there were no threats, promises or inducements made or offered while off camera. According to Det. Mitton, Mr. Strong was engaged and participatory throughout the interview. He had no concerns that Mr. Strong’s will may have been overborn.

[41] The second statement commences at approximately 4:19 p.m. on November 8, 2018, and ends almost 12 hours later at approximately 4:13 a.m. on November 9, 2018. Again, for ease of reference counsel agreed to file a transcript of the interview. The transcript is over 600 pages in length. In what follows, I review some of more relevant portions of the statement with reference to the transcript pages. As mentioned in relation to the first statement, I remain cognizant that I must consider the totality of the statement in context in order to determine whether the Crown has discharged the heavy onus of proving the voluntariness of this statement.

a. Page 3-6: At the outset of the interview, Mr. Strong appears eager and relaxed. He is humming and singing to himself and he burps a number of times. After Det. Mitton enters the room and introduces himself, Mr. Strong asks why Det. Short and Det. Dorego are not doing the interview. Det. Mitton acknowledges that the first interview “didn’t go well” from their perspective. When Det. Mitton states “Well, you didn’t say a lot”, Mr. Strong replies, “No, no. Of course not.”

b. Page 8-15: Mr. Strong states he has “an incredible desire” to have his “bling” or jewellery on him for a while. He references the fact that it took him a long time to “procure” the jewellery and notes that he mentioned this during the initial interview as well. Mr. Strong continues discussing his jewellery for some time.

c. Page 16-18: Mr. Strong asks for a cigarette and for food. When asked what he wants to eat “within reason”, Mr. Strong replies, “A Wendy’s triple…no pickles, iced tea, no ice,…two…spicy chicken wraps and a grilled chicken caesar salad… with extra croutons and…a caesar salad dressing and a ranch dressing.” He then states “And I’ll be happy. Holy crap.”

d. Page 19-28: Mr. Strong confirms his understanding that he does not need to speak with Det. Mitton. He declines to speak with counsel, though he is advised to let Det. Mitton know if he changes his mind. Mr. Strong also confirms that the officers he has dealt with that day have been very pleasant, noting “I have been amazed at how well I’ve been treated.” He indicates that there have been no threats or promises.

e. Page 31: Det. Mitton states that he is going to get some cigarettes, order the food and get some bottles of water. Det. Mitton tells Mr. Strong to let him know if he needs the bathroom and Mr. Strong replies, “Oh, I will, don’t worry…I’m not going to be uncomfortable.”

f. Page 33-34: After being advised that the food had been ordered, Mr. Strong asks, “There is some nasty rumours about me feeding Rori Hache to homeless people. Is that true?” Det. Mitton confirms that there are certain rumours circulating and Mr. Strong states “on the record” that no one ever ate body parts.

g. Page 36-42: Det. Mitton introduces a discussion about serial killers, referencing Bruce McArthur, Robert Pickton and Paul Bernardo. They also discuss DNA evidence.

h. Page 50-63: Mr. Strong and Det. Mitton discuss scuba diving and magnet fishing. The discussion moves on to Ms. Hache’s torso that was found in the harbour and the various factors that might cause a body to float.

i. Page 71-73: Mr. Strong asks to move a table in the interview room so he can rest his elbows on it. When the food arrives, Mr. Strong notes that there are no “extra croutons” and that he did not get fries with his triple hamburger.

j. Page 102: During a long portion of meandering discussion on various topics, Mr. Strong interrupts the discussion to ask if it is ok to “break some gas.”

k. Page 105-106: Det. Mitton tells Mr. Strong he does not have to speak to him, but it needs to be an informed decision.

l. Page 118: Mr. Strong describes how he first learned that Ms. Hache’s torso had been discovered and how he “just about” panicked.

m. Page 121: Mr. Strong, referring to Ms. Hache states, “You know what’s really sad. There’s all these people in jail that are, like, that was my little sister. I’m, like, well, where the fuck were you, when she was sleepin’ on the side of the fuckin’ Oshawa creek? Where were you? Where were you when she was suckin’ dick for food? Where the fuck were you?” Mr. Strong re-iterates this comment later in the interview at page 208.

n. Page 127-129: Mr. Strong asks Det. Mitton how much of Ms. Hache’s body was retrieved from his apartment. He also asks about what clogged his drain. Det. Mitton says he assumes it was a larger chunk of flesh. Mr. Strong replies, “That’s unfortunate…Well, unfortunate for me” and further states “it was just bad luck.” Mr. Strong then asks to see the photographs of the torso but adds “I don’t have a morbid fascination…I just wanna remember.”

o. Page 132-135: Mr. Strong asks to go to the bathroom, and he is taken out of the interview room to do so. He complains about the toilet paper when he returns. He also asks to move his chair. A cigarette is provided by Det. Mitton.

p. Page 137-145: Det. Mitton raises the topic of Ms. Hache’s pregnancy. Mr. Strong states that Ms. Hache was not pregnant and then describes how he “held her entire reproductive system” in his hand and cut it to pieces in order to flush it down the drain. He returns to this topic much later in the interview at page 598, where he describes how he dissected her womb and ovaries.

q. Page 158-163: Det. Mitton begins discussing some of the injuries to Ms. Hache. Mr. Strong immediately asks, “I heard you didn’t even know if her, her head trauma was post, pre or post mortem.” Mr. Strong next asks to see the photograph of the torso and also asks to see a photograph of Ms. Hache’s bruised face. The ante/post mortem nature of the injuries is a topic that Mr. Strong returns to at the end of the interview at page 628, and when asked if he can provide an answer Mr. Strong declines.

r. Page 169-173: Mr. Strong describes what he did with Ms. Hache’s organs. When discussing her liver, he states, “It was massive…I’ve never seen one that big before.” He also discusses the dismemberment of the body on Christmas Eve. He returns to this topic much later in the interview at page 614, where he clarifies “I haven’t seen a ma…massive amount of livers.”

s. Page 174: Mr. Strong asks for a couple more cigarettes.

t. Page 190: Mr. Strong tells Det. Mitton that he “choked out” his former girlfriend “J.”. He describes how he told her that the choking was something he needed.

u. Page 200-204: When Det. Mitton tries to get Mr. Strong to move his chair back to the original position, Mr. Strong calls him on the tactic. He states, “…are you, oh wait, are you intentionally puttin’ me in an uncomfortable position.” They then discuss the psychology behind the use of the table as a barrier or form of protection.

v. Page 206: Mr. Strong re-directs the discussion back to the pictures that he anticipates will be shown to him by Det. Mitton.

w. Page 218: Det. Mitton tells Mr. Strong that apart from the body parts in the freezer and the flesh in the drain, there’s “other stuff” they need to discuss. Mr. Strong replies, “I’m anxiously awaiting that.” Det. Mitton suggests that his goal is to get closure for the family and Mr. Strong replies, “I can’t promise you…anything on that one and I’m sorry.” He also asks Det. Mitton to pass on his condolences to Ms. Hache’s mother and father.

x. Page 252-253: Det. Mitton directs the discussion to Mr. Strong’s concern of being killed as a result of his involvement with Ms. Hache. Mr. Strong explains that the alternative is to be in jail. Det. Mitton implies that he is “stuck” on understanding the alternative and Mr. Strong replies, “Why am I not spillin’ it?”

y. Page 261: While discussing the dismemberment of Ms. Hache, Mr. Strong refuses to discuss how the torso was moved to the lake. He states, “I’m not going to expound on it…Cause I don’t know how it could be possibly damning to me…And, like I get that you got me on the Indignity, I really do…I, I wonder if you guys are just throwin’ something at me, and seeing if it will stick.”

z. Page 263: Mr. Strong raises the notion of getting a deal. He states, “I, I, I would like to, and I’ve, and I’ve, and I’ve fielded this to my, to my lawyer and he’s not interested in it. And I don’t understand why. Of, of, uh spilling the beans, and, and, and being as comfortable as I can in jail. Not like, a hundred thousand dollars, like Pickton, but like…like an allowance. I don’t know. I, I don’t know. Like internet access, like a T…like I don’t have anybody who’s gonna buy me a TV.” Det. Mitton replies, “I don’t think that shit works like that”, to which Mr. Strong replies, “Well then…fuck a duck, eh?” In cross-examination, Det. Mitton denied that he wanted to leave Mr. Strong with the impression that someone else might be able to give him the deal he was looking for. Det. Mitton maintained that whenever the topic of a deal came up, he wanted to be clear that he could not offer the deal and that there was no such deal on the table.

aa. Page 264-265: Mr. Strong describes how he floated the idea of the deal to another lawyer who advised him on it. Det. Mitton replied that any such decision was “way beyond” him. Mr. Strong replied, “Oh, I know you can’t do shit for me.” Det. Mitton then went further and stated that “there’s none of, like zero ah that is on the table.”

bb. Page 284-289: Mr. Strong returns to the topic of the deal and suggests that he got advice from a female lawyer who told him to “hold back” some cards in order to “get the things that you want.” He then suggests that all he wants is “comfortable living” and is not expecting a “get of jail free card.” Det. Mitton reiterates that a deal is not on the table. Mr. Strong replies that if he got what he wanted, he would “spill it.”

cc. Page 299-300: Mr. Strong notes that every time Det. Mitton leaves the room, he takes his materials with him. He asks why and states that he will not look at the material if Det. Mitton leaves it behind.

dd. Page 307: Mr. Strong mocks the implied suggestion that his scuba equipment was involved in the offence.

ee. Page 316-317: As Det. Mitton steers the discussion to Kandis Fitzpatrick, he asks Mr. Strong whether he knows how that aspect of the investigation came about. Mr. Strong replies that he has “an idea” as to which objects Ms. Fitzpatrick’s DNA was on. Mr. Strong then asks whether they are “gonna go through that.” Det. Mitton indicates that they will “tonight” and that “this is our only chance to talk.”

ff. Page 341-349: Mr. Strong discusses his sexual practices and preferences.

gg. Page 349-353: Det. Mitton raises the topic of serial killers and suggests that the FBI definition of a serial killer is a person who has murdered two or more people. Mr. Strong states that his understanding is that it is three or more murders. The discussion then turns to how Mr. Strong was “under the radar” for a long period of time and only came to the attention of the police through “bad luck.” Mr. Strong replies “And I don’t think I would have continued. But, uh…oh…I can’t say that sorry.”

hh. Page 361-363: Det. Mitton and Mr. Strong return to a discussion about video surveillance showing both Ms. Fitzpatrick and Ms. Hache entering and leaving his apartment “under their own steam.” This is a topic discussed several times during the interview, and it is first raised by Mr. Strong who suggests that surveillance videos near his apartment will confirm his version of events. Mr. Strong denies that he is presenting a riddle, but tells the officer “…when you eventually find out what happened, you’re gonna be like, why the fuck didn’t I think of that?”

ii. Page 382: When shown a photograph of Ms. Hache, Mr. Strong describes her as “stunning.”

jj. Page: 385-386: Mr. Strong states that when he was first arrested, he was “totally gonna spill everything.”

kk. Page 405: Det. Mitton asks Mr. Strong if he ever had sex with Ms. Hache and Mr. Strong declines to respond.

ll. Page 408-457: Mr. Strong and Det. Mitton engage in a lengthy discussion of various aspects of the case during which Det. Mitton reveals certain photographs and items of evidence. While Mr. Strong answers many questions, he declines to answer questions about what caused Ms. Hache’s death.

mm. Page 461-470: Det. Mitton and Mr. Strong discuss the specialty knife that had Ms. Fitzpatrick’s DNA on it. At the end of this discussion, Mr. Strong asks, “Is that all you got?” Mr. Strong then chides the officer, stating “I would have thought that you would have found more than just that”, but declines to reveal what more can be found.

nn. Page 484-487: Mr. Strong returns to the topic of the “deal.” Det. Mitton reiterates that he cannot offer the deal that Mr. Strong is looking for, to which Mr. Strong replies, “But other people can, right?” Det. Mitton states, “…just so you’re clear, and I’m, I have to be very careful, ‘cause I obviously I’m not, I’m not promising you anything. I can’t…I’m not allowed.” This comment is repeated again at pages 492-493.

oo. Page 494-496: Mr. Strong suggests that his “card” is letting everyone know what happened. Det. Mitton explains that this is Mr. Strong’s opportunity to tell his story and that afterwards, no one will be interested. He also reiterates that there are no promises being made.

pp. Page 519: In response to certain questions about Ms. Hache’s dismemberment, Mr. Strong states, “I don’t know if I should answer that…I’m actually saying more than my, than I should even…”

qq. Page 527: Det. Mitton reveals certain aspects of the forensic investigation, including blood stain analysis and Mr. Strong replies, “I want you to know, they did a shit job.” He repeats similar comments at pages 529-530.

rr. Page 528: Mr. Strong asks Det. Mitton for permission to remove a piece of lint off Det. Mitton’s shoulder as it is “bothering” him.

ss. Page 550-554: Mr. Strong brings up the topic of “holding cards back” again. In this portion of the discussion, Mr. Strong confirms that Det. Mitton “can’t do shit for me.” Det. Mitton states, “And after today, um, there. I don’t think there’s gonna be any more opportunity for cards to be played…I can’t offer you anything. I’m just letting you know, I don’t know who’s gonna want that information after today.”

Analysis and Findings - November 8, 2018 Statement

[42] The central issue raised on this voir dire relates to interactions between the “deal” sought by Mr. Strong and Det. Mitton’s response. The defence argues that the implicit message in Det. Mitton’s response is that if Mr. Strong confesses there is a hope of an advantage because someone will give him a benefit. While the defence accepts that Det. Mitton was clear in explaining that he could not offer any sort of a deal, he did not go far enough in dispelling the possibility that someone else would. Moreover, the defence argues that Det. Mitton used Mr. Strong’s fear of getting killed outside of jail to keep him talking about the topic.

[43] Before addressing this main issue, I will review the overall context and nature of the interview and make related findings. I note at the outset that this interview was essentially scheduled in advance. Mr. Strong, through counsel, was made aware that he was going to be charged with two counts of first degree murder, and clearly had obtained legal advice from his retained counsel of choice. This was not an interview conducted on an unsuspecting detainee.

[44] Throughout the very lengthy interview, Mr. Strong presents as an enthusiastic and overtly willing participant. He is very eager to speak and routinely speaks over Det. Mitton, often finishing Det. Mitton’s sentences. Mr. Strong is also eager to trade stories with Det. Mitton and often appears eager to show how smart or knowledgeable he is on various topic areas. He demonstrates a keen awareness for the nature of the process and appears entirely comfortable throughout the interview. He readily places a significant food order, asks for cigarettes, passes gas, moves his chair and the table in the interview room, asks for bathroom breaks and obtains refills of drinks. He also repeatedly attempts to demonstrate his knowledge of police interview techniques and calls out the techniques more than once. He appears to relish pointing out what he perceives to be failings in the completeness or quality of the police investigation, adopting at times a mocking tone.

[45] Despite the length of the interview, at no time does Mr. Strong ask to end it or indicate that he is too tired to continue. Indeed, at one point when Det. Mitton guesses that the interview has gone on for 11 hours, Mr. Strong comments “…it doesn’t feel that long…it really doesn’t.” Throughout the lengthy interview, Mr. Strong appears alert, engaged and in good spirits.

[46] To be blunt, Mr. Strong appears to be openly enjoying the interview process and, in particular, his interactions with Det. Mitton, who employs a pronounced “good cop” technique. The tone of the interview is at all times friendly and colloquial. Det. Mitton readily engages Mr. Strong in detailed discussions of varying topics. He builds a “buddy-buddy” rapport with Mr. Strong and is both professional and truthful. Mr. Strong appears comfortable enough to exchange jokes, reveal intimate details of his sexual preferences, and speak at length and candidly about various aspects of his life.

[47] Viewed against this back-drop, I am readily satisfied that there are no oppressive circumstances, no instances of police trickery and no other unfair or impermissible techniques employed at any point in this lengthy interview.

[48] I turn next to the core issue raised by the defence. One of the themes explored by Det. Mitton relates to Mr. Strong’s concern that if he is released from jail, he will be killed. It appears that this concern is related to the fact that some of Ms. Hache’s family members are bikers, and rumours have circulated suggesting that Mr. Strong is essentially a dead man walking. Mr. Strong advances the view that he will be better off in jail, as he is less likely to be killed while in protective custody. Det. Mitton seizes on this issue and notes that he is perplexed by Mr. Strong’s reluctance to talk about the charges if his self-preservation interest would be better served by being in jail. Mr. Strong acknowledges the apparent contradiction, but nonetheless declines to answer questions directly related to the murders of Ms. Fitzpatrick and Ms. Hache.

[49] When this theme is first discussed, Mr. Strong raises the possibility of “spilling the beans” in exchange for a comfortable existence in jail. He reveals that he has spoken to a lawyer (not his trial counsel) about making a deal and has been advised to “hold back” some cards in order to secure the best deal possible. The topic of “spilling the beans” is revisited a number of times during the interview and each time it is raised, Det. Mitton advises Mr. Strong that there is no deal on the table and that he cannot offer Mr. Strong any deal. Mr. Strong acknowledges on more than one occasion that he understands this. Nonetheless, it appears that Mr. Strong continues to believe that such a deal is possible, despite Det. Mitton’s comments.

[50] The defence argues that when this theme is viewed in context, it appears that Det. Mitton essentially permitted Mr. Strong to operate under the mistaken understanding that someone could offer him a deal and that this amounts to an inducement or quid pro quo. At a minimum, the defence argues that this issue should cast a reasonable doubt on the voluntariness of the statement.

[51] I disagree for the following reasons:

a. I see nothing wrong or impermissible about Det. Mitton’s resort to the theme of Mr. Strong’s fear of being killed outside jail. Mr. Strong first raises the issue and even appears to brag about the size of the bounty on his head. I further see nothing wrong with Det. Mitton noting that Mr. Strong’s fear of being killed outside of the jail is inconsistent with his reticence to discuss inculpatory aspects of the case. Det. Mitton is essentially telling Mr. Strong that if he wants to stay in jail in order to prolong his life, it seems odd that he does not want to speak about the offences. In my view, this is nothing more than a simple technique of persuasion that sits well within the legal bounds of permissible interviewing techniques. I also note that to the extent that it was used on Mr. Strong, it did not work.

b. I also see no issue with Det. Mitton’s response to Mr. Strong’s attempts to test the waters for a deal. The first mention of a deal is from Mr. Strong. Det. Mitton immediately tells Mr. Strong that no such deal is on the table and that he cannot assist him in that regard. Whenever the issue of the deal comes up again, Det. Mitton reiterates this point and Mr. Strong confirms that he understands. This is not an instance where Mr. Strong would reasonably have been left with the impression that he could gain something by confessing to Det. Mitton. Indeed, Mr. Strong confirms this understanding himself when he reiterates that he intends to hold back some “cards” and not answer specific questions about either Ms. Fitzpatrick or Ms. Hache.

c. Even if Mr. Strong was of the view that there was a deal to be made in exchange for “spilling the beans”, it is clear that this was his own understanding and it had nothing to do with anything Det. Mitton or any other police officer said to him. As such, his understanding in this regard had no legal impact on his decision to speak to Det. Mitton: see R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.) at p. 212, and R. v. Oickle, supra, at para. 57.

[52] When I consider the statement of November 8, 2018 in its entirety and in context, I am easily satisfied that the Crown has proven its voluntariness beyond a reasonable doubt. As a result, the statement is admissible.

Justice J. Di Luca

Released: January 11, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ADAM STRONG

Defendant

REASONS ON VOLUNTARINESS VOIR DIRES

Justice J. Di Luca

Released: January 11, 2021