COURT FILE NO.: CR-19-56
DATE: 20210529
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.S.
Ms. Mary Ward, for the Crown
Mr. Andrew Edgar, for L.S.
HEARD: May 28, 2021
REASONS FOR RULING
VOLUNTARINESS OF THE ACCUSED’S STATEMENT TO THE POLICE
Conlan J.
I. Introduction
The Charges
[1] The accused, L.S., is charged with two counts, both stemming from an alleged incident in Oakville, Ontario on September 2, 2017 – (i) that he sexually assaulted A.M., contrary to section 271 of the Criminal Code, and (ii) that he committed the related offence of sexual interference, contrary to section 151 of the Criminal Code.
The Trial
[2] The Indictment is to be tried before this Court, without a jury, commencing on Monday, May 31, 2021. It being Friday, May 28th when the voir dire concluded, these reasons are necessarily quite sparse.
The Application
[3] The Crown has applied for a ruling that the accused’s formal statement to the police given on September 8, 2017, audio and video recorded, was voluntary and, thus, is admissible at trial.
The Voir Dire
[4] At the hearing, the Crown called three witnesses, all police officers: (i) Amore (the lead investigator who arrested the accused and took the formal statement from him), (ii) Groulx (the assisting officer who witnessed the arrest and who monitored and took some notes of the interview), and (iii) Moss (the acting sergeant in charge of the booking area at the police station at the material time).
[5] The Defence presented no evidence at the hearing.
II. Analysis and Conclusion
The Burden and the Standard of Proof
[6] It is the burden of the Crown to prove, beyond a reasonable doubt, that the statement in question was voluntary.
[7] There was no obligation on the accused to testify on the voir dire, or to call any evidence at the hearing, or to prove anything.
The Issue
[8] I commend Mr. Edgar for not taking the “everything but the kitchen sink” approach to this Application.
[9] One very narrow issue was argued in submissions – can this Court be satisfied that the Crown has met its burden given that not every police officer who had contact with the accused at the police station at the material time was called to give evidence at the hearing?
[10] The Defence asserts that at least one other officer, Special Constable Skilton, had meaningful or important contact with the accused at the material time, and it could be that the said officer, or another one who was present but who did not testify on the voir dire, influenced the giving of the statement by the accused through a promise, a threat, and/or an inducement of some kind.
The Law
[11] One authority was provided to this Court on the very narrow issue raised – Ms. Ward, for the Crown, kindly filed the decision of the Court of Appeal for Ontario in R. v. Bools, 2016 ONCA 554.
[12] In that case, unlike ours, the accused testified on the voluntariness voir dire. He gave evidence that when he gave his statement to the police he did not have an operating mind because of an overdose of prescription medication. At the hearing in that case, the Crown elected not to call two police officers who had contact with the accused after his arrest but before he gave the statement.
[13] In Bools, the trial judge admitted the statement and ultimately convicted the accused.
[14] On appeal, the accused in Bools argued that the failure of the Crown to call those two police officers deprived him of important evidence that may have corroborated his testimony on the voir dire.
[15] The Court of Appeal for Ontario, in a short Endorsement, dismissed the appeal. In doing so, it stated the following, none of which I might add was new law at the time, “there is no rule of law that the Crown must call each and every police officer who had contact with the appellant prior to his giving his statement” (paragraph 5). It depends on the facts of each case, the Court explained. It could be that the unexplained absence of a witness may raise a reasonable doubt, but not necessarily so.
Decision
[16] As the informed reader can readily observe, the accused in Bools was on comparatively firmer ground than is our accused. Bools had testified on the voir dire and, it appears, had insinuated that the police who he had contact with between his arrest and the giving of his statement should have been able to observe his mental dysfunction.
[17] Arguably, therefore, the absence of the two officers in Bools required more investigation than the absence of officers Skilton, Selles, and Wood in our case.
[18] Why? Because there is not one shred of evidence before this Court, from anyone, that any of Skilton, Selles, or Wood said anything to the accused. If none of them said anything, how could there have been any threat, promise, and/or inducement?
[19] Yes, Skilton searched the accused (according to Moss). Yes, it could have been any of Moss, Skilton, Selles, or Wood who lodged the accused in the cell at 18:34 hours (according to Moss). Yes, because of the distance between the desk in the booking area and the cell that the accused was placed in, if there was conversation between an officer and the accused in the area of that cell, Moss may not have been able to hear it (according to Moss). And yes, it was Skilton who walked the accused from the cell to the nearby duty counsel room at 18:35 hours (according to Moss).
[20] Even accepting all of the above, however, it is rank speculation that one of those officers not called on the voir dire (Skilton, Selles, or Wood) said something to the accused which somehow influenced the accused’s statement to the police and, thus, should cause this Court to reasonably doubt its voluntariness.
[21] In my view, with respect, the only one of those three officers who is even on the radar is Skilton, because of the search and the walking of the accused from the cell to the nearby duty counsel room. Selles and Wood, as far as I know from the evidence presented, could not possibly be said to have had “important” contact with the accused, as that word was used by Mr. Edgar in submissions.
[22] With regard to Skilton, his absence at the voir dire must be viewed in context, as the Court emphasized in Bools. The context here includes:
i. the uncontradicted evidence from three witnesses who were present at the station (Amore, Groulx, and Moss) and who did not make or observe any threat, promise, and/or inducement uttered to the accused; and
ii. the audio-video statement itself, marked Exhibit 1 on the voir dire and played in its entirety in Court, which statement contains a thorough recitation and explanation of the caution and the secondary caution, among other things, and not a whiff of anything from L.S. that causes this Court any concern about the voluntariness of what he later said to Amore during the interview.
[23] On the evidence adduced, I am sure that the accused’s statement to Amore was given freely and voluntarily. The Crown has proven that beyond a reasonable doubt. That none of officers Skilton, Selles, and Wood were called to testify on the voir dire does not change my view.
[24] To address the question posed by Mr. Edgar in his able submissions, did the Crown call all officers who had “important” contact with the accused? I would answer that question in the affirmative.
[25] Mr. Edgar went on to say that there could have been something said by one of those other officers that we are not aware of and that constituted a threat, promise, and/or inducement. With respect, that is not the test. The test is whether, on the evidence adduced or the lack of evidence, the Crown has proven the voluntariness of the accused’s statement beyond a reasonable doubt. It has.
[26] For these relatively brief reasons, the statement in question is ruled voluntary and, thus, admissible at trial.
(“Original signed by”)
Conlan J.
Released: May 29, 2021
COURT FILE NO.: CR-19-56
DATE: 20210529
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
L.S.
REASONS FOR ruling
Voluntariness of the accused’s statement to the police
Conlan J.
Released: May 29, 2021