ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Gregory Hendry, for the Crown/ Respondent
- and -
SCOTT McFARLANE
Carolyn Kerr, for the Applicant
HEARD: May 10-11, 2021 via video conference
RULING ON PRETRIAL MOTIONS
André J.
1The defendant, Mr. Scott McFarlane, brings a motion for an order that a police officer in Ottawa violated his s. 7 and s. 10(b) Charter rights, while interviewing him on June 5, 2013. The Crown brings a motion for an order that Mr. McFarlane’s statement was voluntary and a finding that the officer in question did not violate his rights under the Charter.
BACKGROUND FACTS
2In 2013, the mother of an aspiring gymnast who was being trained by Mr. McFarlane contacted Sergeant Shelley Rossetti after she viewed communications on her thirteen-year-old daughter’s iPad. She subsequently showed the iPad to the officer. Her daughter refused to be interviewed by the officer who then returned the iPad to her. Mr. McFarlane was not charged with any offences involving his interaction with this gymnast.
3However, Mr. McFarlane was subsequently charged with the offences of sexual interference, making sexually explicit material available to a child and luring. These allegations arose between 2014 and 2018 and involved another young gymnast. In the upcoming trial on these charges, the Crown seeks to adduce a couple of Snapchat messages between Mr. McFarlane and this student. The Crown also seeks to rely on a statement given to Sgt. Rossetti by Mr. McFarlane in 2013, as prior discreditable conduct.
MR. McFARLANE’S STATEMENT TO SGT. ROSSETTI
4The officer testified that after the young person advised her that she did not wish to pursue charges against Mr. McFarlane, she decided to conduct a “warning investigation”. The young person did not give Sgt. Rossetti her consent to have her iPad examined. However, another officer who had looked at the contents of the iPad described them to Sgt. Rossetti.
5On June 4, 2013, Sgt. Rossetti called Mr. McFarlane, who was in Mississauga for an interview and made arrangements for him “to come in”. She testified that she did not recall telling Mr. McFarlane that he did not have to come in for the interview. Mr. McFarlane attended at an Ottawa police station the day after. The officer testified that she “would have” advised Mr. McFarlane of the state of the investigation and that it was her “practice to advise them of their rights to counsel”. Before the interview, she knew she was not going to be laying charges and that there was going to be a warning.
6The officer testified that she met Mr. McFarlane in the lobby of the Central Division Station in Ottawa on June 5, 2013 and took him to a second floor interview room. At the start of the interview, the officer advised Mr. McFarlane that he was not under arrest and was not facing charges. She asked him if he was there voluntarily. He replied, “Yes!”. She told him that if he wished to speak to a lawyer, he should advise her.
7Mr. McFarlane described the gymnast as an “athlete and a friend” and that he had coached her three times a week. At one point the officer said to Mr. McFarlane, “I want to know your side of the story”. She then asked, “Were you involved in a relationship with Khloe?” Mr. McFarlane replied, “I would say we were more than friends. I never acted inappropriately with her while coaching.”
8Regarding text messages he had sent her, Mr. McFarlane replied that they “are not appropriate,” and that he did not know what “prompted me to do so.” He admitted to sending the young person a text message saying, “Can’t wait until I can actually kiss you.” “I love you.” He agreed that he sent her photographs of his abdominal muscles, but deemed that he had done so for a sexual purpose. He indicated that the young gymnast had asked him to send her a picture of his abdomen.
9Sergeant Rossetti told Mr. McFarlane, “I just want to understand the whole story”. She added, “What I see here is very borderline. The actions you were doing. The minimum punishment, if found guilty, is forty-five days [imprisonment].” She then said, “I am going to warn you. That’s going to show on your record. Had I got more information from her you could easily be charged. The file is being closed.” Sgt. Rossetti then cautioned Mr. McFarlane, “I’m not saying you will never be charged.” The officer denied threatening Mr. McFarlane, offering him any inducements or assaulting him in any manner. She never cautioned him about giving a statement because she had no intention of arresting him. The officer agreed that she told Mr. McFarlane that things would change if she found out that other things had take place between the young person and himself. During the interview, she never told him that he could end the interview and leave.
SUMMARY OF MR. McFARLANE’S TESTIMONY
10Mr. McFarlane testified that he was fired from the gym where he worked. He recalled Sgt. Rossetti asking him to come to the station to speak to her about his termination. The officer did not make any reference to an investigation neither did she use the word, “detained”.
11He went to the station. The interview was not what he expected. He only found out it was being videotaped when Sgt. Rossetti mentioned it. He was quite nervous during the interview and felt intimidated. He agreed to everything the officer said and did not feel comfortable challenging a police officer. Her statement that he could be charged if she found out more information convinced him to be compliant and answer her questions. He testified, “I felt the whole time I had to stay and answer the questions.”
12He stated that he answered the officer’s questions because, “I didn’t feel I had much of a choice.”
POSITION OF MR. McFARLANE
13Ms. Kerr states that she will not be submitting that the statement was involuntary because of any violence, inducements, or quid pro quo which raised a reasonable doubt that Mr. McFarlane’s will had been overborne during the interview. Rather, she submits that Mr. McFarlane was psychologically detained and that consequently, the officer violated his s. 7 and 10(b) Charter rights. The officer never told him of his right to remain silent or that he was a suspect in her investigation. Sergeant Rossetti essentially took away his choice to cooperate with the police and in so doing, psychologically detained him.
THE CROWN’S POSITION
14The Crown submits that Mr. McFarlane was not psychologically detained and that the court should reject his testimony that he felt compelled to give a statement. He knew he was going to the station to have a talk about his termination as a result of his communication with one of his young gymnasts. The officer repeatedly advised him that he was not going to be charged with anything. As for Mr. McFarlane’s testimony that he was intimidated by the officer, he voluntarily showed contents on his cellphone to the officer.
15The Crown submits that the statement given by Mr. McFarlane is relevant and probative of a central issue in his impending trial which, the Crown alleges is that he was grooming a teenage gymnast for inappropriate behaviour. The statement, the Crown insists, is not admissible for the proposition that Mr. McFarlane has a propensity to engage in inappropriate behaviour. Rather, what is important is that Sgt. Rossetti cautioned him about inappropriate behaviour towards his teenage students. The Crown submits that the statement is highly probative of Mr. McFarlane’s mental state that having been cautioned by the police, he resorted to sending inappropriate messages to another young gymnast.
ANALYSIS
16This motion raises the following issues:
a) Is the statement voluntary?
b) Was Mr. McFarlane psychologically detained? If so, what is the appropriate remedy?
c) If Mr. McFarlane was not detained, does the probative value of the statement outweigh its prejudicial effect?
Is the statement voluntary?
17Ms. Kerr does not challenge the voluntariness of the statement. Sergeant Rossetti did not threaten, coerce or assault Mr. McFarlane neither did she offer him any inducements in exchange for the statement. The circumstances in which Mr. McFarlane gave the statement to the officer cannot be described as having been oppressive in any manner. Furthermore, it cannot be said that Mr. McFarlane’s will was overborne during the interview. For these reasons, the statement is voluntary.
Was Mr. McFarlane psychologically detained by Sergeant Rossetti?
18The foremost issue in this hearing is whether Sgt. Rossetti psychologically detained Mr. McFarlane. If she did, then she had an obligation to advise him of his rights to counsel under s. 10(b) and to caution him that his statement could be used against him. If she did not, then the statement is admissible unless I find that its prejudicial effect outweighs its probative value.
The Law
19Section 10(b) provides that everyone has the right on arrest or detention to retain and instruct counsel without delay. In R. v. Suberu, 2009 SCC 33, at para. 40, the Supreme Court of Canada provided the following justification of s. 10(b):
[I]ndividuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.
20In R. v. Therens, the Supreme Court of Canada noted at page 505 that:
The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.
21Acquiescence in a “demand” or “direction” is essential to constitute psychological detention: see R. v. Moran, 1987 CanLII 124 (ON CA), [1987] OJ No 794 and R. v. Bazinet, 1986 CanLII 108 (ON CA), 25 CCC (3d) 273, 54 OR (2d) 129, 51 CR (3d) 139, at pp. 283-84.
22In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R 353, at para. 28, the Supreme Court of Canada noted that:
[A] person is detained where he or she “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist:” see R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at p. 644.
23In Grant, the Court recognized detention may also be psychological. It stated:
Moving on from the fundamental principle of the right to choose, we find that psychological constraint amounting to detention has been recognized in two situations. The first is where the subject is legally required to comply with a direction or demand, as in the case of a roadside breath sample. The second is where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject’s position would feel so obligated…
24The Court further noted at para. 31 that:
As held in Therens, this must be determined objectively, having regard to all the circumstances of the particular situation, including the conduct of the police. As discussed in more detail below and summarized at para. 44, the focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops.
25In R. v. Thompson, 2020 ONCA 264, at para. 36 the Court of Appeal noted that:
A psychological detention can arise either if: (1) an individual is legally required to comply with a police direction or demand (as with a demand for a roadside breath sample); or (2) absent actual legal compulsion, “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand”: Grant, at paras. 30-31; Suberu, at para. 22; and Le, at para. 25. This involves “an objective determination, made in light of the circumstances of an encounter as a whole”: Suberu, at para. 22.
26As noted by the Alberta Court of Appeal in R. v. Saretzky, 2020 ABCA 421, at para. 32, “It is the perceived loss of choice which requires a psychological detention.”
27Not every request by the police to a citizen to come to a police station for an interview in connection with an investigation of a crime constitutes detention. The language used by the police officer, although couched in the form of a request, may, based on the circumstances be reasonably construed by the person to whom the request is made to be a direction or command: see Moran. A mere police conversation may not amount to psychological detention. However, a conversation that shifts to a degree of coercion and interrogation more likely will be psychological detention: see R. v. Mann, 2004 SCC 52, at para. 19.
28In Moran, Dubin J.A. noted as follows:
I venture to suggest that in determining whether a person who subsequently is an accused was detained at the time he or she was questioned at a police station by the police, the following factors are relevant. I do not mean to imply, however, that they are an exhaustive list of the relevant factors nor that any one factor or combination of factors or their absence is necessarily determinative in a particular case. These factors are as follows:
The precise language used by the police officer in requesting the person who subsequently becomes an accused to come to the police station, and whether the accused was given a choice or expressed a preference that the interview be conducted at the police station, rather than at his or her home;
whether the accused was escorted to the police station by a police officer or came himself or herself in response to a police request;
whether the accused left at the conclusion of the interview or whether he or she was arrested;
the stage of the investigation, that is, whether the questioning was part of the general investigation of a crime or possible crime or whether the police had already decided that a crime had been committed and that the accused was the perpetrator or involved in its commission and the questioning was conducted for the purpose of obtaining incriminating statements from the accused;
whether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated;
the nature of the questions: whether they were questions of a general nature designed to obtain information or whether the accused was confronted with evidence pointing to his or her guilt;
the subjective belief by an accused that he or she is detained, although relevant, is not decisive, because the issue is whether he or she reasonably believed that he or she was detained. Personal circumstances relating to the accused, such as low intelligence, emotional disturbance, youth and lack of sophistication are circumstances to be considered in determining whether he had a subjective belief that he was detained.
29More recently in Grant, the court listed a number of factors to assess whether a psychological detention exists. These are:
a. The nature of the police conduct. For example, where the police are acting in a non-adversarial role and as merely assisting the public, this would not likely result in a detention: Grant, at para. 36.
b. The duration of the encounter. The longer the duration, the more likely it is to be a detention: Grant, at para. 42.
c. The presence of any physical contact between the officer and the person. If there is a physical contact, then more likely than not there is detention.
d. The circumstances and perceptions of the person may be assessed when determining whether a reasonable person in similar circumstances would perceive that they have no choice but to comply with the police direction.
30However, because the test of determining whether psychological detention exists is an objective one, an accused need not testify to establish that a detention resulted from the actins of the police: see Grant, at para. 50.
31As noted in Grant, the duration of the encounter is a factor in determining whether a psychological detention has arisen. However, the Ontario Court of Appeal noted in Thompson, at para. 59, citing R. v. Le, 2019 SCC 34, at para. 65, that the brevity of the encounter “is simply one consideration among many”. It proceeded to note that, a “psychological detention can occur at the start of an interaction or within seconds: see Le, at para. 60; Grant, at para. 42.”
32It is not always clear whether the questioning of a person even in a locked interview room at a police station may not always amount to a psychological detention. The Supreme Court of Canada therefore noted at para. 31 of Le, that:
The somewhat murky line between general questioning (which does not trigger a detention – see Suberu) and a particular, focussed line of questioning (which does) led this Court in Grant to adopt three non-exhaustive factors that can aid the analysis.
33In Saretzky, the court cautioned that “focussed questioning” may not in and of itself, trigger a detention. The court noted that, “Clearly it may, but only if the questioning is of such a nature as to lead the subject, or a reasonable person in his situation, to think that they were no longer free to leave or could not refuse to cooperate… What matters is how the police … interacted with the subject.”
Application of the Law to the Facts
34Ms. Kerr points to the following facts in suggesting that Mr. McFarlane was psychologically detained by the officer:
a) She failed to tell him he did not have to come to the interview;
b) the officer closed the door to the interview room;
c) Mr. McFarlane’s testimony that he felt that he had no choice but to answer the officer’s questions and that he felt very intimidated by her;
d) that the interview became “focused and particularized” when the officer asked Mr. McFarlane what happened between the young person and himself;
e) that she cautioned him towards the end of the interview that he would be charged if she received any further information regarding his interaction with the young person; and,
f) The officer never told Mr. McFarlane during the interview that he could leave at any time.
35Regarding the first point, Mr. McFarlane admitted that he had come to the station voluntarily. Second, he admitted that the officer told him that if he wanted to call a lawyer or “anything like that”, to let her know. He had then replied, “sure”. He gave a similar response when the officer told him, “If you have any questions, just stop me”. Third, he admitted that during the interview, he voluntarily showed the officer conversations which the young person wanted to have with him. He agreed that the officer did not ask him to do so. Fourth, he admitted that the officer never raised her voice at him, neither did he complain about being nervous or feeling intimidated. Fifth, the officer repeatedly told Mr. McFarlane that he would not be charged with an offence and that she would merely be issuing him a warning. Sixth, he admitted, during cross-examination, that he had lied to the officer.
36In my view, Mr. McFarlane’s responses during the interview undermines his testimony that he felt that he had no choice other than to answer the officer’s questions. The interview reveals that a reasonable person in a similar situation would have known that he or she had a choice not to speak to the officer or to contact a lawyer when told that he could do so if he wished. Furthermore, the officer gave uncontradicted testimony that she chose to speak to Mr. McFarlane not to arrest him but to issue him a warning because the alleged victim had refused to give a statement to the police.
Conclusion
37For the above reasons, I find that the officer did not psychologically detain Mr. McFarlane during the interview.
Does the probative value of the statement outweigh its prejudicial effect?
38The Crown submits in his factum that he seeks to rely on Mr. McFarlane’s statement to bolster the credibility of the complainant and to prove the intent in the luring offences. He submits that “the evidence demonstrates that the accused’s communications with young gymnasts are not a one off. It corroborates the complainant’s testimony that these events happened.” However, in his oral submissions to this count, the Crown submits that he intends to adduce evidence that Mr. McFarlane had been warned by Sergeant Rossetti not to send sexually inappropriate messaged to young gymnasts who he trained.
The Law
39In R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31, the Supreme Court of Canada noted that evidence of misconduct, beyond what is alleged which does no more than blacken the character of the accused is inadmissible. In R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, at 943, the court stated that in discussing the probative value of evidence of prior discreditable conduct we must consider the degree of relevance to the facts in issue and the strength of the inferences to be drawn.
40The court noted the following in Handy, at para. 139:
It is frequently mentioned that “prejudice” in this context is not the risk of conviction. It is, more properly, the risk of an unfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. The evidence, if believed, shows that an accused has discreditable tendencies. In the end, the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence enshrined in ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.
41In my view, the intended use of the “warning” by the Crown in the upcoming trial, raises the spectre of this prejudice. If the Crown adduces evidence that Mr. McFarlane had previously been warned, the jury would be left speculating about why he had been warned. Sergeant Rossetti would have to testify that Mr. McFarlane admitted to sending text messages to the young person about his desire to kiss her and sending her a picture of his abdomen. Such evidence would invite speculation that he had acted inappropriately in the past and therefore had a propensity to do so. Such reasoning, in my view, would undermine trial fairness and would have the potential of a verdict based on prejudice and propensity reasoning rather than proof. A limiting introduction to the jury may ultimately move to be insufficient to prevent this from happening.
42To that extent, I find that the probative value of this evidence is outweighed by its prejudicial effect.
CONCLUSION
43The Crown’s application to call this evidence is denied.
André J.
Released: June 18, 2021
COURT FILE NO.: CR-18-1281-00
DATE: 2021 06 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
SCOTT McFARLANE
RULING ON PRETRIAL MOTIONS
André J.
Released: June 18, 2021