COURT FILE NO.: CR-19-113
DATE: 2021/03/26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Richard Massia
Alexandre Simard, Counsel for the Crown
Chandler Thomas, Counsel for the Accused
HEARD: March 2, 2021
Ruling
Leroy, j.
Positions
[1] The Crown motion seeks admission of Mr. Massia’s statement to Detective Huygen recorded on March 20, 2019. The Crown submits that the statement was made voluntarily so the statement should be admitted as part of the trial and for the purpose of cross-examination, if needed.
[2] Defence deny statement voluntariness. Further, the Defence seeks to exclude the statement due to breach of Mr. Massia’s right to remain silent and the right to retain and instruct counsel pursuant to s. 7, 10(b) – Charter.
[3] The Crown contests the defence Charter motion on the basis that Mr. Massia was provided with the right to counsel and was given the caution and secondary caution, he consulted with counsel before the interview and confirmed his understanding of counsel advice. The statement was voluntary. Mr. Massia was not the subject of threats, inducements or promises, oppression, police trickery and he maintained an operating mind through the interview.
Background
[4] It is alleged that on March 18, 2019, Mr. Massia uttered threats to his girlfriend the substance of which was to kill her dog and burn their residence. It is further alleged that on the same day, Mr. Massia intentionally set fire to the residence enclosing the dog within. Mr. Massia was on probation at the time and should he be convicted of arson and threats he breached the probationary term to keep the peace and be of good behaviour.
The Events in Issue
[5] Detective Constable (DC) Huygen and Sgt. Derek Duchesne testified on the voir dire. The video/audio recorded statement was adduced as was the unofficial transcript.
[6] DC Huygen has been the investigating officer on this file since it opened. After reviewing written statements and interviewing witnesses, he formed grounds to arrest Mr. Massia on the threatening and breach offences on March 19, 2019. His efforts at locating Mr. Massia during the workday were unsuccessful. His shift for the day ended at 19:00.
[7] Police knew the Red Cross had secured a room for Mr. Massia at a local motel as urgent shelter given the fire damage to his residence on the 18th. DC Huygen was called back into work at 21:47. Mr. Massia was at the motel. Sgt. Duchesne was in telephone communication with Mr. Massia. Sgt. Duchesne reported that Mr. Massia expressed the wish to talk with the investigating officer. Sgt. Duchesne instructed DC Huygen to visit the motel to arrest Mr. Massia. Constable Menard was on scene but took no part in the negotiation. He directed DC Huygen to Mr. Massia’s room. On DC Huygen’s arrival at the motel, Sgt. Duchesne disconnected from Mr. Massia. DC Huygen knocked on the door and Mr. Massia responded. Constable Menard remained in the background for officer safety. He took no part in the dialogue at the room door.
[8] They talked briefly. DC Huygen knew Mr. Massia from prior dealings. DC Huygen explained the circumstances and grounds for the pending arrest. DC Huygen was the only officer dialoging with Mr. Massia. Mr. Massia was offered the choice of attending with police to the station voluntarily or on the basis of a warrant. Mr. Massia said he wanted to deal with the charges. Within ten minutes, Mr. Massia exited the motel room voluntarily.
[9] DC Huygen confirmed he asked no questions at the motel. He said his purpose at the motel was to inform Mr. Massia of the charges. He was not investigating.
[10] Mr. Massia was arrested by Constable Menard in DC Huygen’s presence on the threatening and breach charges. DC Huygen heard Constable Menard advise Mr. Massia of his right to counsel together with the caution. Constable Menard then alone drove Mr. Massia to the station.
[11] DC Huygen was standing next to Constable Menard and Mr. Massia continuously from the time Mr. Massia exited the room until he was placed in Constable Menard’s cruiser.
[12] DC Huygen denied threats, promises or inducements of any kind during this part of the process. He said Constable Menard performed the arrest as an expedient. The arresting officer is expected to complete paperwork associated with an arrest. Constable Menard was on shift and Huygen was not. Constable Menard’s marked car had a barrier between the front and back seat. DC Huygen’s vehicle did not.
[13] Constable Menard was alone with Mr. Massia in the cruiser while it traversed the distance between the motel and the station, a period of four minutes. DC Huygen followed Constable Menard to the station. Constable Menard did not testify as part of the voir dire. The court was advised that Constable Menard is on sick-leave and his return date is unknown. No medical evidence was offered.
[14] Sgt. Duchesne was the booking officer. He said that once an accused arrives in the station Sally port, he/she is on-camera continuously. DC Huygen observed the booking process. Sgt. Duchesne ensured that Mr. Massia knew the charges, his rights and was cautioned about the consequences should he speak to a person in authority. Mr. Massia declined the opportunity at the time to contact counsel but reserved the right to counsel.
[15] Sgt. Duchesne, as part of the booking process enquired about any health issues, drugs, alcohol, mental health concerns at the time or in the past. Mr. Massia was cooperative. Both officers denied threats, inducements or promises through that process.
[16] Both officers observed Mr. Massia to be tired and hungry. He told them he had not slept since the 18th. Although Mr. Massia had the opportunity of talking with counsel, he agreed to eat and sleep and return to it next morning. DC Huygen stayed with Mr. Massia until he was lodged in cell-one for the night at 00:08 minutes, March 20, 2019. The cells are video-monitored full time.
[17] Mr. Massia remained in the cell until 10:48 when DC Huygen returned. DC Huygen observed that Mr. Massia appeared more rested and alert than the night before. He escorted Mr. Massia to booking room 2 where the ident officer seized Mr. Massia’s clothing and took photographs. DC Huygen observed the entire interaction. He neither heard nor observed unusual officer conduct. Mr. Massia dressed in prison attire and followed DC Huygen to the interview room at 11:06. The interview began at 11:08. The interview concluded at 12:25.
[18] DC Huygen did not discern a change in jeopardy through the interview. Mr. Massia was under arrest as the result of the threatening and breach charges. He was a person of interest on the arson investigation going in. DC Huygen disclosed that context to counsel and Mr. Massia at the outset. He confirmed he did not have grounds to arrest Mr. Massia in respect to the arson case at the end of the interview.
The Interview
[19] DC Huygen opened the interview by introducing the intended scope of the interview. He listed the two threat charges with particulars, the breach charge and he wanted to talk about the fire in the apartment. DC Huygen told Mr. Massia that he was a person of interest in the fire investigation and of the potential for charges stemming from the fire. Mr. Massia’s jeopardy was clearly articulated.
[20] Next, DC Huygen implemented Mr. Massia’s right to counsel. DC Huygen apprised defence counsel of the charges and implications vis-à-vis the actual fire. DC Huygen terminated the interview until Mr. Massia completed private discussion with legal counsel that lasted for a little under four minutes.
[21] On return, Mr. Massia said he understood the advice he received.
[22] DC Huygen reaffirmed with Mr. Massia that he was not obliged to say anything in answer to the charges or allegations but, that if he did what was said, could be given in evidence. Mr. Massia said he understood.
[23] DC Huygen iterated the secondary caution with the advice that if Mr. Massia had spoken to an officer or anyone in authority or if anyone in authority had spoken to Mr. Massia in connection with the case those discussions were not to influence his choice to speak or not.
[24] The transcript occupied twenty-one pages over seventy-four minutes. The first four pages and twenty-five minutes were consumed with the preliminary depicted above to the end of the time Mr. Massia talked with counsel.
[25] From then on, the interview entails recitation of the evidence DC Huygen had marshalled to that point in the investigation together with offers of opportunity for clarification. Mr. Massia, for the most part, was engaged in the discussion with intermittent expressions of not wanting to talk, or of wishing return to the cell, or wishing to attend court or to reach out to reconnect with counsel.
[26] When Mr. Massia requested a drink of water, DC Huygen accommodated. When he seemed to need a break, he was accommodated.
Voluntariness/Charter Breaches
[27] The defence theory is that Mr. Massia’s will in choosing whether to speak with the detective was overborne by the oppressive circumstances of the interview. Mr. Massia said on five occasions over 50 minutes that he did not want to speak with DC Huygen, that he wanted to speak with his lawyer a second time and that he wanted to return to his cell, yet the officer denied those wishes and continued the interview. DC Huygen established a hostile atmosphere by refusing to accede to Mr. Massia’s requests. At one point, Mr. Massia turned his chair away from DC Huygen toward the wall to demonstrate his discomfort.
[28] The defence motion to exclude the statement under the Charter cites the same evidence as breach of the right to retain and instruct counsel and the right to remain silent during the interview.
[29] The submission is that there is a clear causal link between the denial of the right to silence and to consult counsel (police conduct) and Mr. Massia’s statements in the context that Mr. Massia was unaware of the right to remain silent and how to exercise it.
[30] Defence relied on the case of R. v. McKenzie (2002) 2002 CanLII 45009 (ON CA), 167 C.C.C.(3d) 530. The distinction is that in McKenzie, the impugned police conduct preceded advice as to right to counsel and implementation. Same with another case cited, R. v. Suberu, which was a case about detention and right to counsel.
[31] Defence relied on the case of R. v. Sinclair 2010 SCC 35 para 2 as binding precedent for the right of an accused to speak to counsel a second time. The principle is that where there is a change in the accused’s jeopardy or it appears that the information offered in the first consultation was deficient arises in the course of an interview, the additional opportunity to consult with counsel is necessary to serve the purpose underlying s. 10(b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the investigation or not.
[32] The defence materials omitted to include the first sentence of paragraph 2 in submissions: “In most cases, an initial warning (provided) coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, (provided) satisfies s. 10(b).”
[33] In the case at bar, Mr. Massia’s jeopardy did not change. DC Huygen advised Mr. Massia and counsel of his status as person of interest in the arson investigation in the initial stage. When the interview was over, that status was unchanged. Mr. Massia was content with the purport of the advice he received and expressed that he understood what he was told. He acknowledged appreciation of the substance of the charges against him and his status as person of interest in the arson investigation – “I understand what you are saying but it’s not fucking true.”
[34] The principles and case law are such that when a detainee has availed himself of the opportunity to consult counsel and when he has received proper advice, he is not entitled to retrigger a renewed right of consultation absent a change in circumstances. Such a request without more is insufficient to retrigger the s. 10(b) right to counsel and the right to be advised of it. The s. 10(b) submission fails.
The standards applicable to claims for violation of right to silence
[35] This is about suborning the right to choose whether to talk to the person in authority. The cases cited by defence (R. v. Hebert, [1990] 2 SCR 151 (undercover plain clothes officer), R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595 (a friend) and R. v. Liew, (1999), 137 C.C.C. (3d) 535 (undercover officer) involved statements made to persons not in authority. The issue in those cases, although in the same genus, are distinct from those at bar.
[36] The s. 7 review in this respect is equivalent to the Oickle voluntariness review. The Court in Hebert made the point that the right to remain silent under s. 7 is not an absolute right but must be qualified by considerations of the state interest and repute of the judicial system.
[37] The parameters and purpose of the right to silence are distinguishable from the right to counsel. In R. v. Singh, 2007 SCC 48, Mr. Singh asked the Court to rule that police officers should inform the detainee of the right to silence, and then, if the detainee states that he/she does not wish to speak to police, the police are required to stop their interrogation. The Court rejected the bright line constraint attached to s. 10(b) rights because it ignores the state interests at stake (police duty to investigate crime) and it overshoots the protection afforded to the individual’s freedom of choice under both the common law and the right to silence. Further, under the Charter, the right to counsel, including the informational and implementational component is provided for expressly. There is no such provision for the right to silence.
[38] While there are limits:
i. There is nothing that prohibits the police from questioning an accused or a suspect in the absence of counsel after counsel has been retained; and
ii. Police persuasion, short of denying the suspect the right to choose or of denying him of an operating mind does not breach the right to silence.
[39] Under both common law and Charter rules, police persistence in continuing an interview after the detainee expresses the desire to remain silent may bring the admissibility of the statement into question. The Court in Singh referenced the decision in Hebert and stressed the importance of striking a balance between individual and societal interests.
[40] As to the interplay between the common law confession rule and the right to silence in police interrogations, the Court determined the two tests for analysing whether an accused’s right to silence was violated are functionally equivalent when the detainee is aware he or she is talking with a person in authority. It follows that where the statement survives the voluntariness enquiry, the Charter application asserting the statement was obtained in violation of the pre-trial right to silence under s. 7 cannot succeed. Accordingly, the Crown submission in paragraph 11 in its response to the Charter motion to the point that the proper analysis is by way of the common law confession rule is correct.
[41] On the voluntariness motion, the burden is on the Crown to prove the voluntariness of the statement beyond reasonable doubt. If the motion fails, the statement is inadmissible.
[42] Following the lines of the Oickle ruling, the law of voluntariness is accurately stated in R. v. Floyd, 2019 ONSC 7322 at paragraphs 11 – 13 as follows:
“[11] The test for voluntariness is established in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 at paras. 57-66: whether an accused person’s will in choosing whether or not to speak to the police is overborne by improper police promises or threats, oppressive circumstances, or whether the police employed such trickery that would shock the conscience of the community.
[12] This rule addresses concerns about the reliability of confessions and the dangers of false confessions; it protects an accused’s rights without unduly limiting society’s need to investigate and solve crime (Oickle, at para. 33).
[13] The application of the confession rule requires a contextual approach that considers all relevant factors to assess whether the statement was made (1) without threats or promises by a person in authority, (2) in an atmosphere free of oppression, (3) by an accused with an operating mind, and (4) without impermissible police trickery that would shock the community (Oickle at paras. 47-67; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at para. 35). In making that decision, a court should consider the circumstances of the confession or statement, taking into account all relevant factors outlined above, and ask if it is left with a reasonable doubt as to voluntariness, respecting the need to protect the rights of the accused and society’s need to investigate and solve crimes.”
[43] Each case is fact specific. The number of times an accused asserts his or her right to silence can be a factor in the analysis but is not in itself determinative as all the circumstances must be assessed. The use of legitimate means of persuasion is permitted and is part of the critical balance that must be maintained between individual and state interests. Police officers are entitled to employ legitimate tactics to ease the suspect into talking. The ultimate question is whether the accused exercised free will by choosing to make a statement. Statements may be excluded if they result from a systematic break down of an operating mind and an undermining a person’s right to silence.
[44] Here, DC Huygen exhibited the following:
i. he was courteous and respectful to Massia and did not deprive him of food, sleep or water: in fact, the opposite;
ii. he reminded Mr. Massia of his rights;
iii. he facilitated access to his lawyer by phone;
iv. he did not attempt to discover what was said between Mr. Massia and his lawyer;
v. he told Mr. Massia that he did not have to answer questions;
vi. he did not make any negative comments about defence lawyers;
vii. the interview was of relatively brief duration;
viii. he said he wanted to ensure Mr. Massia knew the full extent of the evidence marshalled in the investigation and that Mr. Massia had the opportunity but not the obligation to respond;
ix. Mr. Massia made choices. There were times when Mr. Massia chose to communicate in the interview, and there were other times where he would not provide an answer;
x. in terms of inducement, the officer told Mr. Massia that his job was to follow the evidence. He reassured Mr. Massia he would follow an alibi.
[45] By comparison, in R. v. Fitzgerald, 2009 BCSC 1599, where the statement was not proven voluntary, the accused was denied her right to silence, the interview lasted four hours, the detainee asserted her right to silence 137 times, she was told this was her last chance to provide an explanation and the interviewer made disparaging remarks about the value of the advice the accused received from her lawyer.
[46] Further in R. v. Koivisto 2011 ONSC 307, a sexual assault case, Koivisto’s s. 7 right to silence was breached because the interviewer withheld the identity of the complainant, he was made to guess about the nature of the charges, the interviewer referred to non-existent DNA evidence that inferred a more serious allegation than was actually asserted by the complainant, Koivisto asserted his wish to remain silent 28 times, the officer told Koivisto it was his obligation to continue questioning despite the request to remain silent and told Koivisto it was officer function to help the suspect. The Court concluded the officer confused his duty to investigate a crime and used it as rationale to ignore Koivisto’s right to remain silent. Under the voluntariness rubric, the Court concluded an atmosphere of oppression developed through the interview as result of false promises of help and disclosure of non-existent evidence amounting to police trickery such that the accused’s free will to choose was unfairly compromised.
[47] Relatively speaking, DC Huygen conducted this interview by the book. Mr. Massia was uncomfortable but not to the point of oppression. There were no unfair inducements, threats, indicators of coercion, promises or impermissible police trickery perpetuated by DC Huygen. Mr. Massia was not denied choice at any point after arrival in the station Sally port.
The Effect of the Evidentiary lacuna inherent in Constable Menard’s nonappearance
[48] Another issue arose during the voir dire, namely the break in voluntariness evidence inherent in the fact that the arresting and exclusive transport officer, Constable Menard was unavailable to testify for reason of disability.
Defence Position
[49] The defence relies on ONCA dicta in R. v. Woodward, 1975 CanLii 1471, where the Court wrote that a confessional statement ought not to be admissible before the Crown calls as witnesses all persons in authority with whom the accused had been in contact at all relevant times prior to the interview. His position is that the lacuna in evidence involved in transport at the vital time immediately after his arrest denies the Crown of establishing voluntariness of the statement beyond reasonable doubt.
[50] The burden is on the Crown to provide evidence showing that the statement was obtained in the absence of threats, inducements, promises or oppression. The burden is not on the defence to provide evidence of any of those while Mr. Massia was transported in the cruiser.
Crown Position
[51] The Court is required to consider the whole record in deciding whether the Crown has proven voluntariness beyond reasonable doubt. In cases where the absence of evidence is raised as basis for reasonable doubt as to voluntariness, such doubt must be reasonable and founded on an evidentiary record. This involves an examination of the specific facts of the case regarding the investigatory or custodial roles of the officers.
[52] The Crown position is that the Court heard the evidence of the officers involved in the investigatory role. The four-minute gap in evidence when the accused was in the presence of another officer the day before the day of the statement and who did not testify should not be assumed to raise a doubt about the voluntariness of the statement. There is ample evidence to conclude voluntariness.
Guiding Precedent
[53] Generally, all witnesses involved in the taking of a statement must be called to testify as to surrounding circumstances. Where a statement is elicited in the presence of several officers, the statement ought not to be admitted unless (in the absence of some adequate explanation of their absence) those who were present are produced by the Crown as witnesses, at least for cross-examination on behalf of the accused – Thiffault v. The King (1933), 1933 CanLII 52 (SCC), 60 C.C.C. 97 (SCC).
[54] Justice Spies in R. v. W.G. [2010] O.J. No. 4484 in reference to the dictum in Thiffault wrote at para 18:
“18 – I think the application of this dictum must depend on the circumstances of each case. In the absence of some evidence of conversation with a person in authority before the statement was made, I do not think there is a rule of law which requires rejection of a statement because of the mere possibility or conjecture of an earlier conversation in which threats or promises have been made.”
[55] In R. v. Trifts, 2014 ONSC 5784 para 31 – 32 the Court considered the following circumstances in a case of a thirteen-minute gap between when the accused arrived at the station and the commencement of the interview to rule in favour of voluntariness:
• The evidence of the interviewing officer declared no knowledge of inducements, threats or promises;
• On arrest and at the beginning of the interview, the accused was advised of her rights and cautions and she evidenced understanding;
• The video and transcript of the interview was free of inducement or threat;
• Through the statement the accused managed her responses;
• The interview was respectful and done with care;
• There was nothing but speculation to support any doubt that happened in a thirteen- minute hiatus.
[56] In cases where there may have been other officers who had contact with the accused prior to the interview not called to testify at the voir dire, that fact is not fatal to proof of voluntariness beyond reasonable doubt. Justice Hill, in R. v. Menezes, 2001 CanLII 28426 (ON SC), 2001 O.J. 3758 at para 19 and 20, made the point that there is no absolute rule every person in authority irrespective of the degree of contact need be called on a confessional voir dire. Each case turns on its own facts. A flexible rule designed to examine the role of any police officer with real investigatory or custodial contact generally promotes meaningful scrutiny of relevant governmental conduct.
[57] Justice Hill’s practical direction in Menezes derived from a fact situation where there were many police officers on scene following a street race fatality. Mr. Menezes was interviewed first as witness. As the investigation at the scene progressed, Mr. Menezes was arrested, read his rights to counsel, cautioned and placed in a police cruiser. During transport to the police station, Mr. Menezes made incriminating statements. Defence argued that the Crown had not proven the voluntariness of the statements because they had not called all persons in authority who may have had contact with the accused at the scene of the collision.
[58] Justice Hill ruled that a two-minute break in continuity at the scene which was unaccounted for by the testimony of the officers at the voir dire as well as the 3.5 hour delay between arrival at the station and the interview were not fatal to proof of voluntariness. Justice Hill emphasized the value of the secondary caution in advance of police statements.
[59] In R. v. Dessouza, 2012 ONSC 211, the defence challenged voluntariness because there were 10.5 hours when the accused was held in a cell where the Crown offered no evidence of possible interactions between other officers and the accused. Justice Richetti distinguished the facts before the Court in Dessouza from those in R. v. Holmes, 2002 CanLII 45114 (ON CA), [2002] O.J. No. 4178 (ONCA) – paragraph 27.
[60] Justice Richitti referred to a ruling by Justice Sproat dealing with the same issue in R. v. Samroo, Brown, Mercury and Angus (September 22, 2010 CR 3067) where he wrote:
“The question really revolves then around the question of whether there is a possibility that there was a rogue officer, unconnected to the investigation, who took it on himself or herself to speak to the accused in a manner to influence them and yet no hint of that influence was present in anything seen on the interview.
We tell juries that they do not need to be satisfied on things to an absolute certainty. They need to be satisfied beyond reasonable doubt. The omission by the Crown to call every officer who might have been in and out of the cells, to call every person who might have walked an accused up to an interview room, I suppose does preclude the crown from proving to an absolute certainty that no one had any sort of improper contact with the accused.
I am; however, certainly satisfied beyond a reasonable doubt that there is no evidence to suggest that any officers that had any legally meaningful contact were not called, and having reviewed the statements, I am certainly satisfied beyond a reasonable doubt that the statements were made voluntarily”
[61] Justice Richitti in ruling the statement voluntary, distinguished the facts in Holmes, noting the absence of animus from prior dealings, there was no reason for anyone in the station to have tried to persuade Mr. Dessouza by threat or inducement to make a statement, the video- taped statement did not disclose any hint of response due to threat or inducement by any other officer, the delay in the interview was explained and Mr. Dessouza had received legal advice and understood he did not have to speak to the officer.
Discussion
[62] There is no evidence indicating that Constable Menard had any real investigative role in this investigation. He was however the arresting officer and held exclusive custody of Mr. Massia in the course of the 4-minute transport from the motel to the station.
[63] There is no evidence to suggest Constable Menard had contact with Mr. Massia before the phone call between Mr. Massia and Sgt. Duchesne. The only evidence is that the contact between police and Mr. Massia began with the phone call. From there, DC Huygen engaged exclusively with Mr. Massia. Constable Menard was present for officer safety. He may have observed but did not talk with Mr. Massia.
[64] When Mr. Massia exited the motel room, DC Huygen tasked Constable Menard with the arrest. DC Huygen was intimately part of that process as immediate observer. He observed Constable Menard arrest Mr. Massia on the threatening charges and breach, hand cuff him in the rear, search and place him in the back of the marked car. He did not observe any kind of promise, inducement, threat or indicators of coercion.
[65] Defence objected to the admissibility of DC Huygen’s testimony as to what he heard Constable Menard communicate in terms of the charges citing hearsay issues. In my view, DC Huygen’s testimony as to what he observed and heard relative to the grounds for arrest is admissible as original evidence proving the statements were made and as such is not hearsay or caught by the hearsay exclusionary rule.
[66] The defence submits that circumstances in the case at bar are distinguishable from those in Menezes, Desouzza, Samroo and W.G. In those cases, the Court was responding to defence speculation that there may have been other contact with other officers prior to the statement who might have tried to persuade the accused by threat or inducement to make a statement. Here, it is agreed fact that Constable Menard arrested and transported Mr. Massia to the station. They were alone in the police cruiser for four minutes immediately after the arrest.
[67] I agree with that submission as far as it goes. The facts in those cases required speculation without factual basis as to whether there was other contact than presented in the voir dire.
[68] The lacuna that is the four-minute transport precludes the Crown from proving to an absolute certainty Constable Menard did not engage in improper contact with the accused.
[69] Proof to deductive certainty is not required. Rather, the analysis considers all the evidence in support of the voluntariness application. Justice Hill made the point that there is no absolute rule every person in authority irrespective of the degree of contact need be called on a confessional voir dire. Each case turns on its own facts. A flexible rule designed to examine the role of any police officer with real investigatory or custodial contact generally promotes meaningful scrutiny of relevant governmental conduct.
[70] The evidence excludes Constable Menard from an investigatory context. His presence at the motel offered officer security.
[71] The transport contact offered opportunity for improper threat, inducement and coercion. In the circumstances, however, this transport was qualitatively similar to contact by a cell matron overnight or the constable assigned to accompany the prisoner traverse from cells to interview room. There is no evidence of conversation between Constable Menard and Mr. Massia during the drive. I take notice that Constable Menard’s notes recording his involvement in the file were produced and any indication of discussion in the vehicle would have been underscored for my review.
[72] There is no evidence of animus by anyone in authority towards Mr. Massia. There is no evidence to suggest Constable Menard had professional or personal interest in the file beyond following orders. Sgt. Duchene and DC Huygen gave fulsome reporting of how Mr. Massia was treated and how Mr. Massia comported himself after he arrived at the station. Sgt. Duchesne enquired about any health issues, drugs, alcohol, mental health concerns at the time or in the past. Mr. Massia was cooperative.
[73] Mr. Massia exhibited an operating mind. He did not exhibit symptoms of intimidation, oppression or expectation connected to some form of recent inducement, threat and coercion. Both officers observed that Mr. Massia was tired and hungry. He told them he had not slept since the 18th. Although Mr. Massia had the immediate opportunity of counsel consultation, he accepted DC Huygen’s offer and chose to eat and sleep first, reserving counsel consultation until the morning.
[74] As noted earlier in these reasons, after Mr. Massia had slept and eaten, while his mind was clear, DC Huygen advised Mr. Massia that if he had spoken to an officer or anyone in authority or if anyone in authority had spoken to Mr. Massia in connection with the case those discussions were not to influence his choice to speak or not. Mr. Massia indicated understanding.
[75] With respect, this is a fact situation where there is mere possibility or conjecture of an earlier conversation in which threats or promises have been made. The Courts of Appeal dicta in Thiffault and Woodward relate to meaningful investigatory or custodial contact.
[76] The fact of the four-minute lacuna in the voluntariness record, in and of itself when held up to the whole of the evidence, does not raise a reasonable doubt in my mind as to the voluntariness of Mr. Massia’s statement.
[77] I am satisfied beyond a reasonable doubt that there is no evidence to suggest that any officers having had legally meaningful contact were not called, and having reviewed the statements, I am satisfied beyond a reasonable doubt the statements were made voluntarily.
[78] Crown application granted. Defence application dismissed.
The Honourable Mr. Justice Rick Leroy
Released: March 26, 2021
COURT FILE NO.: CR-19-113
DATE: 2021/03/26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Richard Massia
Ruling
The Honouble Mr. Justice Rick Leroy
Released: March 26, 2021