SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. B.M.S.
BEFORE: Justice I.F. Leach
COUNSEL: Kristina Mildred, for the Crown
Victoria Zavitz, for the Accused1
HEARD: August 31 and September 8, 2020
RESTRICTION ON PUBLICATION
By court order made under s. 486.4(1) of the Criminal Code, information
that may identify the person described in this judgment as the complainant may
not be published, broadcasted or transmitted in any manner. This judgment
complies with this restriction so that it can be published.
ENDORSEMENT
1This endorsement deals with the voluntariness of statements made by the accused herein during a police interview conducted on May 15, 2019, which was the subject of a video recording.
2As this matter is subject to an order restricting publication, made pursuant to s.486.4(1) of the Criminal Code of Canada, (“the Code”), I will refer to the accused and other lay persons involved only by their initials.
Overview and procedural history
3By way of broad initial overview:
a. The accused, Mr B.M.S., is charged with one count of sexual assault contrary to section 271 of the Code, and one count of sexual interference contrary to section 151 of the Code. Ms E.B. is the complainant in relation to both charges.
b. It is not disputed that the complainant and the accused are known to one another.
c. The complainant has alleged that she and the accused began an intimate relationship in the fall of 2017 when, to the knowledge of the accused, the complainant was just 15 years old; i.e., turning 16 only in February of 2018. According to the complainant:
i. the accused engaged in sexual activity with the complainant on numerous occasions while she was 15 years old; and
ii. the accused repeatedly engaged in sexual activity with the complainant without her consent; e.g., by initiating and engaging in sexual activity with the complainant while she was asleep, (including vaginal intercourse), and by attempting to penetrate the complainant anally after the complainant had indicated she did not wish to engage in anal intercourse.
d. The complainant reported her allegations to the London Police Service, (“the LPS”), members of which determined, on or about May 14, 2019, that there were reasonable and probable grounds to arrest and charge the accused with sexual interference and sexual assault. When the accused could not be located that day, an arrest warrant for the accused was sought and issued.
e. In circumstances addressed in more detail below, the accused was located and arrested by members of the LPS in the early morning hours of the following day, (i.e., on May 15, 2019), transported to the holding cells of the LPS headquarters, and held in custody there prior to his being interviewed by a detective of the LPS later than morning. The statements made by the accused during that police interview were the subject of an audio-video recording.
4On or about July 31, 2020, the Crown brought an application seeking a court ruling as to the voluntariness of the accused’s video recorded statements made to the police during that police interview. In particular, the Crown asserted that the video recorded statements made during that interview were voluntary, such that they would be admissible evidence at trial. The Crown’s application was opposed by the accused.
5Because of the prevailing COVID-19 pandemic, and corresponding limitations on the court’s ability to conduct in person hearings, arrangements were made to have the application proceed by way of a video hearing. Those arrangements included an order being made on consent, pursuant to s.650(2)(b) of the Code, permitting the accused to participate in the video hearing from the facility where he was being held in custody.
6That hearing of the application began on August 31, 2020, with the presentation of evidence. However, as it was not possible to complete the presentation of evidence and oral submissions that day, the application was adjourned to September 8, 2020, for continuation.
7On September 8, 2020, the presentation of evidence was completed and I received oral submissions from counsel. I then formally reserved my decision, in relation to the application.
8Trial of the matter was scheduled for November 18-20, 2020.
9By November 10, 2020, my review and consideration of the underlying evidence and submissions had led me to conclude that the Crown had established, beyond a reasonable doubt, the voluntariness of the statements made by the accused during his video recorded police interview on May 15, 2019. However, other circumstances had prevented me from completing an endorsement indicating my conclusion and reasons for that conclusion.
10To assist the parties with their planning for the scheduled trial, Crown counsel and defence counsel were advised, through an email message from me, relayed through the London trial co-ordinator on the afternoon of November 10, 2020, and acknowledged by both counsel, that I had found the voluntariness of Mr Smith’s video recorded police interview statements proved beyond a reasonable doubt, for reasons to follow.
11These are those reasons.
Evidence and findings
12During the course of the voir dire hearing to determine voluntariness, I was presented with oral testimony from the following four officers serving with the LPS:
a. Constable Annette Haemmerli;
b. Constable Arnold Balla;
c. Constable Jeremy Koekebakker; and
d. Detective Constable (or “D.C.”) Brandon Vandenberg;
13All four witnesses were called by the Crown, and cross-examined by defence counsel.
14In the course of that witness testimony, I also was presented with the following two video recordings:
a. a video recording of what transpired when the accused was being paraded and booked in to the holding cells at the LPS headquarters, in the early morning hours of May 15, 2019; and
b. a video recording of the police interview of the accused conducted later that morning, containing the accused’s statements which are the subject of this voluntariness hearing.
15Each video recording was played during the voir dire, with a digital recording of each marked as a numbered exhibit.2
16In relation to each video recording, I also was presented with a draft transcript for use as an interpretive aid or aide-memoire, on the understanding:
a. that the transcripts were simply the transcriptionist’s non-binding perception of what or may not have been said during the events captured by the video-recordings;3
b. that the video recordings themselves were the actual evidence to be considered in that regard; and
c. that I would determine, as the trier of fact, what actually was or was not said, and by whom, during the events captured by the video recordings.
17While defence counsel cross-examined each of the witnesses called by the Crown, the defence chose to lead no evidence of its own during the course of the voir dire.
18The testimony of each witness was marked by apparent candour and internal consistency, and in my view their uncontradicted testimony was not seriously challenged or undermined in cross-examination. Moreover, in relation to all significant matters, the testimony of the witnesses who provided accounts of the same events from different perspectives, (i.e., insofar as Constables Haemmerli, Koekebakker and Balla spoke about things that happened when more than one of them was present), was consistent in relation to all material matters.4
19In the result, I found each of the witnesses to be credible and reliable, and saw no reason to doubt the accuracy of their testimony.
20In the course of these reasons, I will have more to say about certain specifics of underlying events. However, based on the voir dire evidence presented, findings of fact forming the basis of my analysis included the following:
a. In the early morning hours of May 15, 2019, Constable Haemmerli was an officer in the uniform division of the LPS, and on patrol in her Chevrolet Tahoe police vehicle here in the city of London. She was dressed in her complete police uniform, including a vest with the word “POLICE” written on its front and back, and was bearing weapons that included her firearm, police baton and pepper spray. Her vehicle also had clear police markings, and was equipped with visible emergency lights on its roof.
b. At approximately 12:45am, Constable Haemmerli was nearing the intersection of Commissioners Road and Wellington Road when she noticed a Volkswagen sedan vehicle, proceeding south on Wellington Road, that had no functioning light illuminating its licence plate. While travelling behind that vehicle, Constable Haemmerli decided to effect a traffic stop, and activated her emergency lights. The driver of the Volkswagen responded by pulling his vehicle to a stop in a parking lot on the west side of Wellington Road, near its intersection with Montgomery Gate.
c. Constable Haemmerli indicated over her police radio that she was engaged in a traffic stop and exiting her police vehicle, before then approaching the driver of the Volkswagen. That driver, W.B., produced ownership and insurance documents at the officer’s request but did not have his similarly requested driver’s licence available.
d. While communicating with W.B., Constable Haemmerli noticed that there was a male sitting in the Volkswagen’s front passenger seat. That passenger was engaged in behaviour which the officer considered peculiar; i.e., in contrast to how members of the general population normally acted in such circumstances. In particular, he appeared to be deliberately facing away from the direction of the officer, while also holding his left hand up to block the officer’s view of his face. Based on past experience, Constable Haemmerli believed such conduct was consistent with that of individuals who were the subject of outstanding warrants and/or in breach of binding conditions.
e. Because of her suspicions in that regard, Constable Haemmerli initiated a conversation with the male passenger, asking that he identify himself. The passenger reacted in a somewhat hostile manner, initially refusing to identify himself and indicating he had no obligation to do so, as he had not been formally detained by the officer. Constable Haemmerli responded by confirming that the passenger had no obligation to identify himself, while adding that she made such requests because she liked to know who she was dealing with, and believed such interaction helped her to “know the community better”. At that point, the passenger identified himself by providing his complete first and last names, represented in this endorsement by the initials “B.S.”; i.e., the name of the accused.
f. Constable Haemmerli returned to her vehicle to run police checks on the driver and passenger names she had received. In that regard:
i. Constable Haemmerli took the precaution of indicating by radio to another officer on patrol, (i.e., Constable Koekebakker), that she was engaged in a traffic stop, that the front seat passenger was acting “sketchy”, and that she suspected that the front seat passenger may have given her a false name;
ii. when Constable Haemmerli ran the name provided by the front seat passenger, she nevertheless found that the passenger had provided her with his actual name and that it was the accused, whose “mug shot” and extended history of involvement with the LPS came up for display;
iii. seeing and recognizing the accused’s “mug shot” also prompted Constable Haemmerli to recall that she had interacted with the accused on one or two prior occasions, although she could not recall, at the time, the circumstances of those prior interactions; and
iv. at that point, Constable Haemmerli also noted that there was an outstanding warrant for the arrest of the accused, relating to charges of sexual assault and sexual interference.
g. Having received that information, Constable Haemmerli notified Constable Koekebakker that she was going to effect and arrest, and asked him to proceed to her location to provide assistance if/as necessary. She then exited her police vehicle, approached the right/passenger side of the Volkswagen vehicle, opened the door next to the accused, and took what she described as “soft control” of the accused, (i.e., by taking hold of his right arm), while informing the accused that he was under arrest, pursuant to the outstanding warrant, for sexual assault and sexual interference.
h. The accused initially seemed to be co-operative, and exited the Volkswagen vehicle. However, once he had done so, he pushed Constable Haemmerli backwards and tried to run away, initiating what the officer described as a “scuffle”. In particular, when the accused initially pushed Constable Haemmerli backwards, she responded by grabbing at him and taking hold of his sweater. The accused nevertheless then slipped out of that garment, and “took off running” east across Wellington Road, on the opposite side of which was a ditch approximately six feet in depth.
i. When the accused descended into that ditch, at approximately 1am, Constable Haemmerli was in close pursuit, using her police radio to indicate her location and call for additional “back up” assistance from other officers, and yelling commands and other comments to the accused such as “Stop” “You’re under arrest”, and “You’re not getting away”. Taking advantage of her higher elevation, Constable Haemmerli then jumped from the top of the ditch onto the accused, causing both individuals to fall over. At that point, the physical altercation continued, with the actions of the accused – who was significantly taller and larger than the officer - making it clear that he did not want to be taken into custody. In particular, during the struggle that followed:
i. The accused initially turned around and punched/struck the officer several times, including 2-3 blows to her face, while she returned blows in an effort to defend herself.
ii. The accused thereafter repeatedly tried to turn from the officer to run again, only to have the officer in turn repeatedly grab the accuse to prevent that from happening, (i.e., before the accused managed to proceed more than a couple of steps), leading to further blows being exchanged.
iii. In a final effort to restrain the accused, Constable Haemmerli managed to place her left arm around the accused’s neck from behind, while using her right arm to inflict “disciplinary” blows. In response, the accused seemed to “calm down” somewhat, at least insofar as he ceased trying to get away from the officer. However, Constable Haemmerli felt obliged to apply such blows again more urgently, in an effort to distract the accused, when he began to reach repeatedly for something in the area of his belt, as the officer thought he might have a weapon and she was greatly concerned for her safety.
iv. In the course of those actions, the accused fell forward onto the ground in the ditch, with Constable Haemmerli on top of his back trying to secure the accused’s arms and apply her handcuffs.
j. At or about that time, back up for Constable Haemmerli arrived, initially in the form of Constable Koekebakker, followed shortly thereafter by Constable Balla. Both officers descended into the ditch, where they assisted in taking control of the accused, before taking him back to Constable Haemmerli’s police vehicle, and searching the accused incident to arrest before placing the accused in the rear of that vehicle. In that regard:
i. Constable Koekebakker and Constable Balla were both working in and for the uniform division of the LPS that morning. Both were in full uniform similar to that of Constable Haemmerli, with obvious police markings. Both were equipped with similar weapons, (also described as “use of force options”), as Constable Haemmerli. Both were operating police vehicles that were clearly marked as such.
ii. Constable Koekebakker was the first to arrive at the scene, and quickly descended into the ditch to help Constable Haemmerli subdue and secure the accused; i.e., by bringing the accused’s arms out from underneath him, so that his hands could be secured behind him through the application of handcuffs. Along with Constable Haemmerli, Constable Koekebakker was giving directions commanding the accused to put his hands behind his back, but the accused remained non-compliant and Constable Koekebakker was increasingly concerned by the accused’s determination to keep his hands moving below him for reasons unknown. To address the situation, Constable Koekebakker then applied 5-6 “distractionary blows” - in the form of punches to the accused’s head, shoulders and triceps - attempting to locate or force a weakness that would cause the accused to relax his arms. The tactic succeeded, allowing Constable Haemmerli to seize and handcuff the accused’s left hand, before then doing the same thing to the accused’s right hand, thereby securing the accused’s hands together behind his back.
iii. Constable Balla arrived just as the accused was being handcuffed, descending into the ditch and taking over from Constable Haemmerli, who was disheveled with visible injuries, including abrasions and blood, on her face, nose and ear.
iv. After Constable Haemmerli had taken a moment to collect herself and her belongings, Constables Koekebakker and Balla then escorted the accused from the ditch and back across Wellington Road to Constable Haemmerli’s police vehicle, while she followed immediately behind them. By that time, various other officers had arrived on scene, but none of those other officers had any direct interaction with the accused.
v. Once at Constable Haemmerli’s police vehicle, Constable Koekebakker conducted a search of the accused incident to arrest, with Constable Balla continuing to hold the accused and Constable Haemmerli looking on. In the course of that search:
In an effort to protect himself from cuts or infections, (e.g., from uncapped and infectious needles), Constable Koekebakker asked the accused if there were any sharp objects on him. However, no response from the accused was noted.
Constable Koekebakker then located a long sheath attached to the accused’s belt loop, and tucked inside the accused’s right pant leg. Inside the sheath was a large long-bladed knife, which had not been visible prior to the search.
After that concealed knife was discovered, the accused explained to Constable Koekebakker that he was carrying the knife for his protection, as he “got jumped” on an earlier occasion. The accused also indicated that he was now missing his cellular phone, and believed it had been left in the ditch during the struggle.
vi. The accused was then placed in the rear of Constable Haemmerli’s police vehicle, after which he had no further interaction with any police officers other than Constable Haemmerli while still at the scene of his arrest.
vii. While those various actions to catch, subdue and secure the accused were being taken, other police officers had arrived on scene. Although none but Constables Haemmerli, Koekebakker and Balla had any direct interaction with the accused, one or more of those other officers apparently conducted a search incident to arrest of the Volkswagen vehicle, during which a backpack belonging to the accused was located, and found to contain controlled substances. At the time, the accused was the subject of a binding condition, requiring him not to possess or consume unlawful substances.
viii. Constables Haemmerli, Koekebakker and Balla nevertheless were the only officers on scene who had any direct interactions with the accused.
ix. At no point during the efforts made to catch, restrain, subdue and/or search the accused was any type of weapon drawn or employed by any of the officers involved.
k. At approximately 1:13am, while the accused was in the back of Constable Haemmerli’s police vehicle, Constable Haemmerli formally arrested the accused again, on charges of sexual assault, sexual interference, flight from police, assault of a police officer, resisting arrest, possession of a prohibited weapon, possession of a controlled substance, and breach of recognizance.
l. Almost immediately thereafter, Constable Haemmerli provided the accused with his rights to counsel, and what is known in the vernacular as the standard “primary caution. In particular:
i. At approximately 1:16am, Constable Haemmerli provided the accused with his rights to counsel, reading the standard recommended text in that regard verbatim from her duty book.5 When she asked the accused if he understood the rights to counsel that had just been provided, he responded by saying “Yes”. When Constable Haemmerli then asked the accused if he wished to call a lawyer, he responded in the affirmative, and provided Constable Haemmerli with the name of a specific lawyer he wanted to call; i.e., Eric Seaman.
ii. At approximately 1:17am, Constable Haemmerli provided the accused with a primary caution, once again reading the standard recommended text in that regard verbatim from her duty book.6 When she asked the accused if her understand the primary caution that had just been provided, he responded by saying “Yes I do”.
m. At approximately 1:25am, Constable Haemmerli departed the scene in her police vehicle, with the accused riding in the rear of the vehicle, in order to transport the accused to the “detention centre”, (i.e., the holding cells), of the LPS headquarters building at 601 Dundas Street here in London. During that ride:
i. The accused, (who had been very compliant an apologetic from the moment he was placed in the rear of Constable Haemmerli’s police vehicle), initiated a conversation with Constable Haemmerli.
ii. The accused apologized to the officer for any harm caused to her during the physical altercation, and explained that the knife found in his possession was only for his self-protection because of “bad experiences on the street”.
iii. In the course of the conversation initiated by the accused, Constable Haemmerli posed only one question; i.e., asking the accused why he had tried to run away from her. The accused responded by indicating that he had just wanted to see his girlfriend, who had been waiting to meet with him at a nearby fast food restaurant.
n. At approximately 1:36am, Constable Haemmerli and the accused arrived at LPS headquarters, where the officer removed the accused from her vehicle, searched him again, as per the protocol requiring those in custody to be searched again before being booked into the holding cells.
o. At approximately 1:45am, the accused, accompanied by Constable Haemmerli, (and by Constable Balla, who had followed Constable Haemmerli and the accused back to the LPS headquarters in his own police vehicle)7, was then taken to the “booking area” of the detention unit and presented or “paraded” before Sergeant Brown; i.e., the duty sergeant then in charge of booking individuals into the holding cells. In that regard:
i. What happened during the next eight minutes or so generally is depicted in the first video recording, (alternately described as “the parade video”), tendered and marked as an exhibit.
ii. The video shows the accused, stepping forward and standing, between Constables Haemmerli and Balla, in an area in front of a desk, behind which Sergeant Brown is seated. A police cadet, (identified by Constable Haemmerli as “Cadet Newton”), is also present, and standing near to the desk, off to the left of the screen. Sergeant Brown then poses a number of questions to the officers and the accused, and receives a number of responses in return.
iii. The audio of that video recording is somewhat distorted and muffled at times, especially when there is collateral noise and individuals are speaking over each other. Many of the comments noted as “indiscernible” in the draft transcript prepared and presented as an interpretative aide or aide memoire to that video recording remained indiscernible to me as well. However, having reviewed that video recording, I otherwise find that, for the most part, the draft transcript presented as an interpretive aid or aide memoire accurately describes what was said back and forth between the accused, Constable Haemmerli, (referred to in the draft transcript as “FEMALE OFFICER”), Sergeant Brown, (referred to in the draft transcript as “MALE OFFICER”), Cadet Newton, (referred to in the draft transcript as “THIRD OFFICER”), and Constable Balla, (who apparently makes limited comments at page 4, lines 23-24 and 26-27 also attributed to “MALE OFFICER”), subject to the necessary revisions set forth in what I have labelled SCHEDULE “A” to this endorsement.
p. After being paraded before Sergeant Brown in the “booking area”, the accused was escorted to other areas of LPS headquarters, where he was fingerprinted and subjected to a further search, described in testimony as a “secondary search” or “strip search”, in which the clothing of the accused was removed, searched and restored to the accused one item at a time. In that regard:
i. A decision to carry out that further search was made by Sergeant Brown, after he received indications during “booking in” of the accused that the accused had used controlled substances in the past. The intended purpose of the secondary search was to determine whether the accused had drugs concealed anywhere on his person.
ii. Constable Haemmerli did not accompany the accused during that further processing and secondary search, for reasons no doubt relating to respect for the different gender of the accused.
iii. Constable Balla instead accompanied the accused during his further processing, standing by primarily for reasons of officer safety, but participating in the secondary search, (which lasted no more than 2-5 minutes, and was conducted primarily by Sergeant Brown), only to the extent of searching and returning the accused’s trousers when they were handed to Constable Balla for that purpose.
iv. The accused then was taken to and placed in a holding cell.
q. I received no evidence of anything further happening until 5:45am, at which time Constable Haemmerli, (who had been preparing paperwork associated with the accused’s arrest and other events earlier that morning, and somehow had learned of the discovery of pepper spray located on the front passenger seat area of the Volkswagen vehicle Constable Haemmerli had stopped), formally arrested the accused a third and final time, during a further interaction that lasted approximately three minutes. In that regard:
i. The officer advised the accused that he was under arrest for a specified list of charges, repeating those indicated earlier but adding a further “possession of a concealed weapon” charge.
ii. The officer once again provided the accused with his rights to counsel, once again reading the standard recommended text in that regard verbatim from her duty book. When asked again if he understood those rights to counsel, the accused once again responded that he did.
iii. The officer also then once again provided the accused with the standard “primary caution”, reading the recommended text for that verbatim from her duty book as well. When asked again if he understood that primary caution, the accused once again responded that he did.
iv. Constable Haemmerli thereafter left for hospital, (for an examination of injuries sustained during the physical altercation earlier that morning), and had no further interaction with the accused.
r. I received no evidence of anything further happening until 8:48am. At that point:
i. The accused had been placed in telephone contact with a specifically named defence lawyer; not the one he originally had named and requested when speaking with Constable Haemmerli and then with Sergeant Brown, (i.e., Eric Seaman), but another specifically named lawyer; i.e., Geoff Snow.8
ii. D.C. Vandenberg, (a detective with the Sexual Assault and Child Abuse unit of the LPS, who had no prior involvement with the criminal investigation or apprehension relating to the accused), had started his shift at 7am, and been advised that the accused had been arrested on the original sexual assault and sexual interference charges, (pursuant to the relevant arrest warrant), and on the numerous additional charges noted above, and was to be interviewed. In preparation for that interview, D.C. Vandenberg reviewed both the occurrence report prepared in relation to the original charges, as well as the occurrence report that had been prepared outlining the events giving rise to the further charges.
iii. D.C. Vandenberg then had gone to the holding cell area to interview the accused, only to learn – from the sergeant now presiding there - that the accused was in a private room, engaged in a telephone conversation with a defence lawyer; i.e., Geoff Snow. The detective therefore had waited outside that private room for the call to finish.
iv. When the call between the accused and Mr Snow had ended, D.C. Vandenberg introduced himself to the accused, (although he candidly indicated in his voir dire testimony that he could not recall whether he indicated that he was a detective, in addition to supplying his name), and escorted the accused to a nearby interview room, located approximately 20-25 feet away from the private room where the accused had been on the telephone. During the period of less than two minutes it took to do that, the detective spoke to the accused only for the purpose of giving directions to the new room; i.e., without having any substantive discussion about underlying matters, or the interview that was going to be conducted.
v. The interview room into which the detective led the accused was equipped with a microphone installed on the wall and two video cameras, so as to make an audio-video recording of all that transpired during the interview. The room also was equipped with a table and three chairs. Immediately adjacent to that interview room was a separate “scribe room”, in which D.C.Vandenberg’s partner, (Detective Constable Bonnet), was positioned to prepare notes of the interview as it was happening, but without having any direct interactions with the accused.
s. What happened during the next hour and 57 minutes or so generally is depicted in the second video recording, (alternately described as “the police interview video”), tendered and marked as an exhibit. In that regard:
i. D.C. Vandenberg confirmed that the recording depicts the police interview in its entirety, including everything that was said between the detective and the accused from the moment they entered the interview room together to the moment they left the interview room together.
ii. The video recording shows the detective and accused entering the interview room and generally occupying two of the room’s chairs during the conversation that followed.
iii. The audio of that video recording is generally clear, (or at least much clearer than the audio of accompanying the “parade video”, particularly since there is little to no background noise), although there are portions of the recording wherein some of the comments noted as “indiscernible” in the draft transcript prepared and presented as an interpretive aid or aide memoire to that video recording remained indiscernible to me as well. However, having reviewed that video recording, I otherwise find that, for the most part, the draft transcript presented as an interpretive aid or aide memoire accurately describes what was said back and forth between D.C. Vandenberg and the accused, subject to the necessary revisions set forth in what I have labelled SCHEDULE “B” to this endorsement.
t. After the video recorded police interview had concluded, D.C. Vandenberg escorted the accused out of the interview room to another nearby location, (approximately 20-25 feet away nearing the front desk of the booking in area), where he transferred custody of the accused to police cadets, who returned the accused to his holding cell. The detective’s further dealings with the accused in that regard once again lasted less than a few minutes, and involved no substantive discussion; i.e., with conversation being limited to the provision of directions on where to go.
u. After transferring custody of the accused to the police cadets, D.C. Vandenberg thereafter had no further dealings with the accused.
21With the above evidence and findings in mind, I turned to consideration of whether or not the video recorded statements made by the accused during his police interview with Detective Vandenburg were voluntary in the sense required by law, so as to permit the Crown leading evidence of such statements at trial.
Analysis
22General principles relating to voluntariness were restated and emphasized by the Supreme Court of Canada in the seminal case of R. v. Oickle, supra, and have since been repeated in decisions such as R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500. They include the following:
a. Statements by an accused will not be admissible if they are made under circumstances that raise a reasonable doubt as to voluntariness.
b. The burden is on the prosecution to prove beyond a reasonable doubt that a statement was voluntary.
c. Application of the “confessions rule” or voluntariness rule is necessarily contextual, because “hard and fast” rules cannot account for the wide variety of circumstances that may vitiate voluntariness, including sensitivity to the particularities of the accused.
d. A trial judge therefore must consider all relevant factors when reviewing such statements, always keeping in mind the twin goals or objectives of protecting the rights of an accused without unduly limiting society’s need to investigate and solve crimes. However, the factors to be considered include the following:
i. Whether statements were induced by threats, (including but not limited to threats of violence), or promises, (including but not limited to offers of leniency, counselling, or other forms of “quid pro quo” in exchange for the accused speaking with police) .
ii. Whether a statement was induced by a desire to escape oppressive conditions, (including but not limited to deprivation of food, clothing, water, sleep or medical attention, denial of access to counsel, and/or excessively aggressive or intimidating questioning for a prolonged period of time);
iii. Whether an ostensible statement by the accused was made at a time when the accused lacked “an operating mind”; a requirement which, according to the Supreme Court of Canada, “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”; and
iv. Whether the police used “trickery” to obtain a statement from the accused, recognizing that courts must be wary not to unduly limit police discretion, and that resort to tricks and other forms of deceit are not prohibited so long as they are not “so appalling as to shock the community”.
23Again, that list of factors is not exhaustive, but those are the four principal areas or situations giving rise to possible doubt concerning voluntariness identified by the Supreme Court of Canada, which therefore understandably have been the focus of subsequent decisions.
24With the above in mind, I turn to an assessment of whether the statements made by the accused to D.C. Vandenberg in this case, during the course of the accused’s formal police interview, were voluntary. In doing so, I obviously will consider the the suggestions and concerns raised by defence counsel in that regard. At all times, however, I bear in mind that it is the Crown which bears the onus of proving the voluntariness of the accused’s statements beyond a reasonable doubt.
THREATS AND/OR PROMISES
25In this case, I think it fair to say that there really were no suggestions or concerns raised by the defence in relation to threats or promises. In any event, I independently find that there was no evidence of threats or inducements sufficient to raise any reasonable doubt about the voluntariness of the accused’s video recorded statements to D.C. Vandenberg.
26In relation to threats and/or threatening behaviour:
a. While the accused unquestionably was subjected to a degree of violent force administered by the police during the initial measures taken by Constables Haemmerli, Koekebakker and Balla to catch, restrain and subdue the accused, (i.e., after the accused attempted to flee following his original arrest by Constable Haemmerli), in my view those measures were directed only to those purposes, and did not represent or intimate any further threat of violence to induce the making of any statement by the accused. I also think that would have been clear and was clear to the accused at the time; e.g., given his apologetic demeanour and statements made while being transported to the police station, during the booking in process, and again during the police interview with D.C. Vandenberg.
b. The remainder of the presented evidence of police interaction with the accused, (including but not limited to his interaction with D.C. Vandenberg during the relevant police interview), made it clear to me that the accused, once captured and subdued/restrained, was treated with courtesy and respect. Without limiting the generality of the foregoing:
i. Questioning done by Sergeant Brown during the booking in process and by D.C. Vandenberg consistently was done in a conversational, benign and friendly tone. It included comments by D.C. Brown expressing respect for the accused’s honesty and candour, and comments by D.C. Vandenberg repeatedly conveying empathy and sympathy for the situation of the accused.
ii. There is simply no evidence that the accused, during his interaction with the various police officers, (at least, after the initial steps necessarily and reasonably taken to subdue the accused and take him into custody), was ever mistreated.
c. Nor, in particular, were there any express or implicit threats of ill treatment or more punitive consequences for the accused if he failed to speak with the police, and D.C. Vandenberg in particular. Certainly, all of the testifying witnesses denied the making or hearing of any such threats during their time with the accused, and I see no reason to doubt the accuracy of their uncontradicted testimony in that regard.9
27Similarly, in my view there were no relevant promises made, or “quid pro quos” offered by the police officers who interacted with the accused, to induce the making of any statement by the accused. Without limiting the generality of the foregoing:
a. Each of the testifying witnesses expressly denied making or hearing any other officer make any such promises or “quid pro quo” suggestions, and I see no reason to doubt their uncontradicted testimony in that regard.10
b. In various ways, D.C. Vandenberg encouraged the accused to be forthcoming and candid during the interview. However, in my view such encouragements were never coupled with any indication or intimation that statements by the accused to D.C. Vandenberg would result in any “hope of advantage”, as far as criminal proceedings were concerned. In particular, at no point during the interview did D.C. Vandenberg promise or offer leniency in exchange for statements from the accused.
c. Indeed, the only “promise” made by D.C. Vandenberg was that he would not lie to the accused, and specifically, that if the accused asked him a question, the detective would either not answer or tell the accused the truth. The only thing asked of the accused in return, after a express reminder that the accused had no obligation to answer any question put to him by the detective, was that the accused would tell the truth if he chose to answer.11 In my view, those statements by D.C. Vandenberg involved no “promised benefit…of such a nature that, when considered in light of the relationship between [the detective] and the accused, and all the surrounding circumstances of the confession, would tend to induce the accused to make an untrue statement”.12 The detective expressly exhorted the accused to do the opposite; i.e., to tell the truth, if the accused chose to answer at all.
d. If anyone suggested any kind of “quid pro quo” or “leniency in exchange for information” arrangement during the police interview, it was the accused. In particular:
i. The accused proactively tried to suggest, near the outset of the interview, an arrangement whereby he would supply certain information relating to fentanyl and/or fentanyl trafficking.13 However, D.C. Vandenberg not only made it clear immediately that he was not going to engage in any such discussion, but also expressly instructed the accused not to say anything further about such things in order to protect himself.14
ii. Later, (approximately half way through the interview), when the accused once again asked if there was some “potential for this to be gone today”, D.C. Vandenberg immediately disabused the accused of any illusions in that regard, saying “There’s not a chance that it’s gone today”. When the accused asked again, (i.e., saying “There’s no chance at all?”), the detective responded with a simple but emphatic “No”.
iii. In my view, such responses from the detective made it crystal clear that he was neither proffering nor willing to entertain any sort of “quid pro quo” arrangement, in the sense contemplated by the authorities, that might bring into doubt the voluntariness of the accused’s statements.
OPPRESSION
28I also think it fair to say that, in this case, there really were no defence suggestions that statements by the accused may have been induced by the accused being subjected to “oppression” or oppressive conditions, and I independently find in any event that the evidence presented to me in the voir dire contained nothing to suggest any such concerns. In that regard:
a. In R. v. Oickle, supra, at paragraphs 58-62, the Supreme Court of Canada provided descriptions and examples of the sort of “inhumane” or “distasteful” conditions that may be created by police to create oppressive circumstances sufficient to overbear a suspect’s will to the point of making him or her doubt his or her own memory, and/or offer a “stress compliant confession” to escape such conditions. In particular, the Supreme Court offered an expressly non-exhaustive list of relevant factors in that regard, mentioned above, which included the following: “depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and aggressive, intimidating questioning for a prolonged period of time”.15 Another possible source of oppressive conditions was said to be police use of non-existent evidence.16
b. In my view, there were no such conditions evident in the case before me. Without limiting the generality of the foregoing:
i. As noted above, the police engaged in no physically violent or threatening behaviour in relation to the accused, after he had been captured and subdued/restrained.
ii. After being taken into custody, and well before any questioning by D.C. Vandenberg, the accused was advised repeatedly of his right and ability to speak with a lawyer, including the provision of duty counsel, if he wanted such assistance. In particular, as noted above:
On two separate instances, Constable Haemmerli formally provided the accused with his “rights to counsel”, using the standard recommended text in that regard, and on both occasions the accused indicated that he understood. On the first of those indications, (at least), the accused went further and specified the name of a particular lawyer he wished to call.
During the booking in process, Sergeant Brown also made express inquiries about whether the accused wished to speak with a lawyer. The accused once again responded with an indication confirming not only his understanding, but his desire to telephone and speak with the same specifically indicated lawyer.
Before being interviewed by D.C. Vandenberg, the accused was provided an opportunity to speak with another defence lawyer, (when his initial lawyer of choice apparently was unavailable), and the accused exercised that opportunity immediately before D.C. Vandenberg began asking the accused questions during the relevant police interview.
iii. The interview room itself appeared to be well lit, clean and tidy in the video recording of the police interview. Nothing in the attire, conduct or comments of the accused or the detective suggested that the temperature or any other aspect of the atmosphere in the interview room was bothersome or oppressive in any way.
iv. During the course of the interview, D.C. Vandenberg provided the accused with numerous snack bars and juice beverages, going so far as to leave the room to obtain more juice in a flavour requested by the accused.
v. Although defence counsel pointed to statements made by the accused that he had been up for several days prior to the altercation with Constable Haemmerli, (as a result of drug use), and the timing of events indicated that the accused probably had not had a full night’s sleep before the relevant police interview, (i.e., given the recorded times of the early morning arrest, booking in process, the third formal arrest of the accused by Constable Haemmerli, the accused’s telephone conversation with defence counsel, and the start of the interview with D.C. Vandenberg), the accused himself indicated and emphasized during the course of the interview that he was “sober now” and had “slept too”. Certainly, the accused said nothing to indicate that he felt too tired to speak with D.C. Vandenberg at the time of the interview.
vi. Although the accused made reference to being punched by Constables Haemmerli, Koekebakker and Balla when he was being captured and subdued/restrained, and to having a resulting black eye, (which D.C. Vandenberg described as a red eye), the accused himself expressly and repeatedly denied having any current injuries when asked about that by Sergeant Brown during the “booking in” procedure.17 Nor did the accuse suggest at any point during the police interview that he had any injuries causing him pain, or otherwise inhibiting his ability to speak with D.C. Vandenberg.
vii. As noted above, D.C. Vandenberg conducted his questioning in a benign, friendly and courteous tone throughout the interview, repeatedly expressing empathy and sympathy for the accused. In my view, such questioning was never aggressive or intimidating. The entire interview lasted less than two hours, and included a break while D.C. Vandenberg retrieved more beverages for the accused. At no time did the accused indicate that he required any additional break, or that he felt unable to continue with the interview.
viii. In my view, there was nothing whatsoever to suggest that D.C. Vandenberg made use of any fabricated evidence.
POLICE TRICKERY
29In this case, defence counsel did not overtly suggest the existence of any relevant “police trickery”, in the sense described by the authorities dealing with voluntariness, and I independently find that there was none. In that regard:
a. I am mindful of the Supreme Court of Canada’s emphasis that, in contrast to consideration of threats and promises, oppression and the need for an “operating mind”, use of police trickery is not only related to voluntariness, (insofar as may have induced an accused to make a statement that is unreliable and untrue), but involves a distinct inquiry insofar as it also has the more specific objective of maintaining the integrity of the criminal justice system.18
b. I also am mindful of the Supreme Court of Canada’s emphasis on bearing in mind the twin goals of protecting the rights of an accused without unduly limiting society’s need to investigate and solve crimes, and its acknowledgement that a level of police trickery is tolerated so as not to frustrate the latter goal. In particular, I think it helpful to bear in mind the Supreme Court’s indications, in relation to alleged police trickery and voluntariness, that a number of considerations effectively set a relatively “high bar” in terms of the circumstances which will constitute a finding of “police trickery” resulting in the exclusion of statements based on a finding they were involuntary. In particular:
i. Courts should be wary not to unduly limit police discretion.19
ii. The investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The police, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not, through the confession or voluntariness rule, be hampered in their work. What should be repressed vigorously is conduct on the part of the police that shocks the community.20
iii. There may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community.21 However, the situations and occasions deserving such “immediate and vigorous rebuke” will be “very rare” and “very few”.22 In particular, to meet that standard the trick resorted to by the police must be “a dirty trick” that “shocks the community”, and that is a “very high threshold”; a threshold “higher … than that to be attained to bring the administration of justice into disrepute in the context of a violation of the Charter”.23 Examples of police trickery that might “shock the community”, in the sense required, include the following: a police officer pretending to be a lock up chaplain and hearing a suspect’s confession; a police officer pretending to be a duty legal-aid lawyer to elicit incriminating statements from an accused; and police injecting truth serum into a diabetic suspect, pretending it is the suspect’s daily shot of insulin, in order to use resulting statements in evidence.24
c. At most, defence counsel in this case suggested that D.C. Vandenberg was “misleading” when he indicated to the accused, near the start of the interview, that his partner was recording the interview just so that D.C. Vandenberg did not have “to write everything down or type or anything like that”. However, the detective immediately followed that comment by further comments expressly indicating that “either way, whatever we talk about is gonna be recorded”, and emphasizing repeatedly that everything being talked about in the room was “on the record”. For such reasons, and the further reasons outlined below during my discussion of the “operating mind” requirement, I do not think the accused was “misled” in the circumstances; i.e., as to the possibility of his recorded statements possibly being used as evidence against him in a trial.
d. In any case, in my view nothing done by the police officers in this case rises to the level of trickery, contemplated by the Supreme Court of Canada in R. v. Oickle supra, and other decisions, required to vitiate the voluntariness and admissibility of an accused’s statements to the police. Without limiting the generality of the foregoing, the evidence in this case suggests no conduct of the relevant police officers even remotely comparable to the examples of egregious conduct provided by the Supreme Court of Canada, and no police conduct capable of rising to the very high threshold required to satisfy the “community shock test”.
OPERATING MIND
30In this case, defence counsel expressly indicated that her submissions about voluntariness were focused primarily on whether the accused may have lacked an “operating mind” in the sense required to make his statements “voluntary”.
31As noted above, the Supreme Court of Canada has explained that the relevant “operating mind” requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”.25
32The limited nature of the threshold that has to be met in that regard also has been described and emphasized by the Supreme Court of Canada in the following terms:
The operating mind test … requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying, and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further, and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest.26
33In this case, I think there is no evidence to indicate or suggest that the accused lacked the cognitive ability to understand what he was saying to D.C. Vandenberg. In that regard:
a. It was argued by defence counsel that there were numerous indications that the accused, at the time of the relevant police interview, may have been suffering from the consequences of having used illicit substances, and/or mental health issues.27 For example:
i. The evidence and charges indicate that controlled substances were found in the possession of the accused.
ii. The accused indicated at the time of his “booking in” that his life had been hell the previous three weeks, that he had taken “some crystal and meth” (sic) prior to his arrest, and had been ”“on fully two and a half days”, but had “stopped doing crystal”, which was “why this whole thing happened”; i.e., in terms of his assaulting Constable Haemmerli, trying to flee, and resisting arrest.28
iii. During the “booking in” procedure, the accused also provided a detailed recitation of his mental health issues, (e.g., schizophrenia, PTSD, depression and ADHD), as well as details of the prescription medication he was taking or supposed to be taking in that regard.29
iv. During his police interview with D.C. Vandenberg, the accused similarly makes reference to his use of illicit substances and his coming down off a “full day bender”, to which he attributed his misconduct after Constable Haemmerli initially tried to arrest him.30 More generally, he attributed his “bad decisions” to the use of drugs,31 described how he obtains his drugs,32 and made reference to how use of drugs may have brought about his relationship with the complainant.33 He explains that, at the time of his altercation with Constable Haemmerli, he had been “up for several days without thinking straight”.34 He also makes reference to his having several mental health issues, or suspected mental health issues.35
b. However, the police officers interacting with the accused at the time had no difficulty communicating with the accused or vice versa. In that regard:
i. Constable Haemmerli confirmed, during the course of her testimony, that her police duties have required her to interact with drug users and those with mental health issues on a regular basis. She also candidly indicated her belief that the accused was telling the truth when he indicated, during the booking in process, that he had abused substances in the past, and had been diagnosed as having mental health issues. However, Constable Haemmerli also was adamant that, during her interactions with the accused on the occasion in question, he did not appear to be under the influence of any substances, or suffering from any mental health issues, in any manner that was influencing or affecting his behaviour or cognitive ability. In that regard, she emphasized that she and the accused spoke back and forth to each other repeatedly in English, that he clearly appeared to understand what the officer was saying, and that he never said or did anything to suggest that he did not comprehend what the officer was saying. To the contrary, the officer emphasized, the accused’s comments and answers to questions were responsive, appropriate and made complete sense in the context of the conversation. The accused also expressly confirmed his understanding of various matters, (e.g., his rights to counsel and the primary caution), when he was asked repeatedly whether he understood what was being said to him.
ii. Constable Koekebakker could not recall anything about his interactions with the accused capable of suggesting that the accused was under the influence of alcohol or any other intoxicating substances. Nor did anything the officer witnessed cause him to have any concerns whatsoever about the accused’s ability to understand what was happening, and comprehend what was being said to him. To the contrary, Constable Koekebakker emphasized his view that the accused was “definitely aware”, and communicating in an obviously responsive and sensible manner; e.g., while proffering an explanation for the concealed knife found on his person, noting that his cellular phone appeared to be missing, and drawing a reasonable inference that the phone might have been lost and left in the ditch during the physical altercation there.36
iii. Constable Balla acknowledged that, during the “booking in” process, the accused made statements referring to his past use of controlled substances and mental health issues. However, Constable Balla also was firmly of the view that nothing during his interactions with the accused suggested that the accused was under the influence of any drugs or alcohol at the time, or experiencing any debilitating mental health issues. To the contrary, Constable Balla emphasized that the accused remained co-operative, did not “act out” in any way to suggest that he was “high” on any form of drug, appeared to understand and comply with commands and instructions, and appeared to fully understand what was being said to him.
iv. At the outset of his police interview, D.C. Vandenberg acknowledged the accused’s indication that the accused had been on an “all day bender”, which the detective expressly interpreted as an indication that the accused was “just coming down” from some form of drug-induced “high”.37 D.C. Vandenberg also indicated during the course of the interview, (and confirmed in cross-examination), his understanding that the accused had used drugs prior to his arrest, and that the drugs may have been responsible for the accused’s conduct in trying to resist arrest and evade police; e.g., by assaulting Constable Haemmerli as part of a “drug-induced fight or flight response”, or the result of a “shitty decision” made while “coming down off meth”. However, the detective also emphasized in cross-examination that, at the time of the police interview, and throughout his conversation with the accused, he felt confident that the accused was co-operative, completely understanding what was being said, and responding appropriately. Although the accused occasionally spoke rapidly, and added additional information beyond addressing specific questions asked by the detective, D.C. Vandenberg rejected the suggestion that was necessarily indicative of substance abuse; e.g., noting that the accused was visibly upset, and that the detective’s periodic “venting” of issues and frustrations relating to somewhat tangential issues - such as his traumatic childhood and other experiences - had been “cued up”, to some extent, by other comments and questions raised by D.C. Vandenberg.
c. In my view the behaviour and responses of the accused throughout the video recording of his being paraded before Sergeant Brown, and his interview with D.C. Vandenberg, make it abundantly clear that the accused was intelligent, articulate and appropriately responsive to questions and comments, without any indications that his basic cognitive ability to understand what he was saying was impaired by substances or otherwise. He responded to questions in an alert, rapid, sensible and frequently detailed manner. He proactively and persistently asked his own probing questions to elicit more details about the nature of the underlying allegations against him, the charges he was facing and their possible consequences, along with other particulars such as the date of the arrest warrant being issued. He engaged in a degree of reasoned argument with D.C. Vandenberg about various matters; e.g., as to why his carrying of dog spray was not illegal,38 why certain allegations apparently being made by the complainant were implausible,39 and why he could or should not be found guilty of sexual interference based on his researched understanding of the applicable law.40 When he was informed that his understanding of that law might be inaccurate, he then engaged in sustained argument as to why his admissions of certain physical contact, (e.g., kissing of the complainant when she was 15 years old), should be disregarded as any kind of voluntary formal admission capable of substantiating a charge of sexual interference. He critiqued the manner in which the allegations of misconduct have been drafted.41 He also questioned the propriety of the Crown laying charges so long after receiving the complainant’s allegations,42 and laying both sexual assault and sexual interference charges apparently in relation to the same underlying alleged misconduct.43
d. As noted by defence counsel, the accused frequently spoke rapidly during the booking in process and police interview, and at times attempted to raise and discuss additional matters that were not the immediate focus of questions being put to him. However, contrary to the submissions of defence counsel, I do not think such conduct is indicative of the accused obviously being under the influence of any substance. Without limiting the generality of the foregoing:
i. Without any evidence to provide a basis for comparison between the accused’s conduct during the booking in procedures and police interview and how the accused may speak and act on other occasions, I lacked the ability to make any finding that the accused’s pace or manner of speaking was in any way abnormal or indicative of intoxication. In that regard, I note that the accused, according to his own express comments, (as well as his crying and other physical reactions during the police interview), was extremely frustrated, upset and worried at the time; i.e., experiencing emotions that often cause individuals to speak rapidly for reasons unrelated to use of illicit substances.
ii. Moreover, although the accused spoke rapidly at times, his comments and questions always remained responsive, sensible and logical in context. In my view, they also repeatedly were connected with expressions of appropriate curiosity, concern and anxiety regarding the charges being made against him and their possible consequences.
iii. On the whole, I think the accused’s manner of speaking was entirely consistent with someone anxious for his own welfare. While the additional subjects he was raising sometimes went beyond the immediate focus of officer questions, and were arguably tangential in that sense, they were not inappropriate or unrelated to the accused’s situation, and in fact reflected intelligence and insight into that situation and its possible implications. Furthermore, as noted by D.C. Vandenberg during the course of cross-examination, a number of the rapport building comments the detective made, and background questions he asked, to some extent invited the accused’s more wide-ranging responses.
e. Although the accused has suffered from mental health issues, he himself indicated that he had received treatment for those issues; e.g., insofar as he indicated that he had been prescribed and was taking prescription medication for those issues at the time of his arrest.
f. As noted above, the accused himself indicated and emphasized, during the course of the interview, that although he may have used illicit drugs and gone without sleep prior to this arrest, he was “now sober” and had “slept too” by the time of his police interview with D.C. Vandenberg.44
g. Although the accused clearly became emotionally upset during the course of the interview, I think there is nothing in the evidence presented during the voir dire to indicate or suggest that the accused somehow lost the cognitive ability to understand what he was saying. At all times, his comments continued to make sense in the context of the ongoing conversation he was having with D.C. Vandenberg. They reflected organized thought, reasoning and an inquisitive mind that was seeking and processing information, as well as acknowledgement and understanding of what the detective was saying. They remained appropriately responsive.
34Again, the first element of the “operating mind” requirement for voluntariness requires nothing more than an accused having the cognitive ability to understand what he was saying. I have no doubt whatsoever that the accused had that cognitive ability at the time of his police interview with D.C. Vandenberg.
35The second element of the “operating mind” requirement for voluntariness requires that the accused knew, when making the relevant statements, that he was speaking to a police officer.
36In that regard, defence counsel suggested that there arguably was doubt about that in this case, having regard to such matters as the following:
a. D.C. Vandenberg, unlike other members of the LPS dealing with the accused after his arrest, was not wearing any form of police uniform with any kind of visible markings, or carrying any weapons, identifying him as a police officer.
b. Although D.C. Vandenberg testified that he introduced himself when he initially met the accused, (i.e., just after the accused finished his telephone call with defence counsel Mr Snow, and prior to walking the accused down the hall and into the interview room), that introduction was not captured by the video recording made inside the interview room, and D.C. Vandenberg candidly could not recall whether his introduction had included an identification that he was a detective, in addition to his name.
c. There are no express comments made by D.C. Vandenberg, during the video recording of the police interview, wherein D.C. Vandenberg indicates his name, or that he is a detective.
37However, I agree with the submissions of Crown counsel that there is no reasonable doubt, in this case, that the accused realized at all times that D.C. Vandenberg was a police officer. Without limiting the generality of the foregoing:
a. By the time of the police interview with D.C. Vandenberg, the accused quite obviously had been transferred from the custody of one police officer to another from the time of his arrest onwards. There is no evidence whatsoever to suggest that the accused received any kind of indication that he was being released from custody when, after speaking with defence counsel Mr Snow, he was asked by D.C. Vandenberg alone to accompany D.C. Vandenberg to the police interview room.
b. D.C. Vandenberg was the one who removed the accused’s handcuffs for the duration of the police interview, during which only he and the detective were present.45 In my view, the accused sensibly would have realized that only a police office would have the authority to do that.
c. Similarly, throughout the interview, D.C. Vandenberg is clearly referring to police documents relating to the investigation, and indicating that he has reviewed occurrence reports. In my view, the accused sensibly would have realized that D.C. Vandenberg had that ability only because of his position within the LPS.
d. From the outset of the interview, D.C. Vandenberg makes use of terminology indicating indirectly that he is a police officer; e.g., referring to his “partner” scribing notes of the interview in another room, differentiating his role from officers in “the Drug Unit”, and emphasizing that his knowledge of Constable Haemmerli is somewhat limited because she is a “relatively new cop” in the uniform division and he personally has not “been on the road in a little bit”.46 He nevertheless also emphasizes that he does have knowledge of Constable Haemmerli, that he will be seeing her, and that he has the ability to pass messages on to her from the accused.47
e. When the accused opens the interview by suggesting a “quid pro quo” arrangement, (i.e., whereby he would offer information relating to fentanyl in exchange for leniency), he proffers the deal to D.C. Vandenberg, implicitly acknowledging his belief that he was dealing with a police officer in a position of authority to entertain such a proposal.
f. Throughout the interview, the accused himself repeatedly uses terminology, when speaking to D.C. Vandenberg, indicating that he views the detective as being part of the LPS. For example:
i. he offers “to give you guys” information about fentanyl;
ii. he emphasizes that he “never gave you guys trouble”;
iii. he expresses regret for his “appalling” conduct towards Constable Haemmerli, saying he’s “always dealt with you guys good”, and “I don’t want to change the relationship” with officers of the LPS;
iv. wondering about the possibility of police surveillance, he says “I don’t know if you guys – you guys don’t follow me around, I don’t think so”;
v. in discussing troubled lives encountered by D.C. Vandenberg, the accused says “You guys probably see so much around here, eh?”;
vi. when referring to his lawyer’s advice not to speak with the police, the accused says “He told me not to talk to you at all”; and
vii. he emphasizes this was “the first time I’ve ever ran from you guys”, “You know my history with London police”, and “I’ve never given you guys like, any problems”; and
viii. he asks D.C. Vandenberg to relay messages to Constable Haemmerli for him.48
g. Perhaps most telling, without D.C. Vandenberg having previously indicated during the police interview that he is a police officer, the accused expressly says “Like, dude, you’re – it’s obviously (sic) that you’re a cop and a good person”.49
38That leaves, for consideration, the final component of the “operating mind” requirement described above; i.e., whether the accused had awareness or knowledge that what he was saying to D.C. Vandenberg could be used “to his detriment”, in “proceedings against the accused”.
39In that regard, defence counsel placed considerable emphasis on the detective’s acknowledged failure to provide the accused with a primary caution in the standard form, (i.e., an express statement specifically indicating to the accused that he may have been charged with criminal offences but had the right to remain silent, and that anything said to D.C. Vandenberg could be used against the accused in criminal proceedings),50 and it was argued that the detective also failed to use any words to similar effect.
40In cross-examination, the detective acknowledged that use of the standard form primary caution was highly recommended, and explained that he was “thrown” somewhat from his usual method of proceeding by the accused’s proactive comments and questions.
41In approaching this component of the “operating mind” requirement, I think it helpful to note some of the more particular and explanatory descriptions of that component which were canvassed and relied upon by Justice Sopinka, in R. v. Whittle, supra, when formulating the summary of the “operating mind” requirement adopted and since repeated by the Supreme Court of Canada. In that regard, reference was made to authorities such as:
a. the comments of Justice Beetz in Horvath v. R., 1979 CanLII 16 (SCC), [1979] 2 S.C.R. 376, who indicated at p.425 that the component refers to “an awareness of what is at stake in making a statement to a person in authority”; and
b. the comments of Justice McIntyre in R. v. Clarkson, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, who indicated at p.399 that the focus is on whether the accused “was aware of the consequences of making the statement on the particular occasion in question”, and that “to be aware of the consequences in this particular context simply means to be capable of understanding that [his or] her statement could be used in evidence in proceedings to be taken against [him or] her”.
42Speaking for the entire Supreme Court, Justice Sopinka then summarized the limited demands of the “operating mind” test as follows:
The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed, it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining whether the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest.51
43There is no question that police provision of an express caution in the standard form may go a long way towards establishing, beyond a reasonable doubt, that an accused had the requisite awareness of consequences contemplated by the “operating mind” requirement.52
44However, as emphasized by our Court of Appeal in R. v. E.B., supra, at paragraph 88, the provision of such a caution is neither a requirement nor a guarantee of voluntariness:
Even where a person is a suspect, the absence of the standard caution is only one factor to be considered in the voluntary analysis – just as the presence of such a caution does not automatically lead to the conclusion that a statement was voluntary.
45In the same case, our Court of Appeal also indicated that, despite the absence of a caution in the standard form, its purpose might be achieved in other ways; e.g., if it otherwise was “brought home” to an accused that he or she “did not have to give the statement and that there were potential adverse consequences in doing so”.53
46Having regard to all the circumstances, I am satisfied beyond what I consider to be a reasonable doubt that the necessary awareness was “brought home” to the accused in this case. My considerations in that regard include the following:
a. Prior to the relevant police interview, (and indeed, within the 6½ hours immediately prior to that police interview), the accused received not one but two deliveries of the primary caution, in its standard recommended text, delivered to him by Constable Haemmerli. On both occasions, (one shortly after he had been captured, subdued and restrained at approximately 1:17am, and the other at approximately 5:45am, four hours after the accused had achieved the state of calm and clear headed thought already depicted in the video of the accused’s booking in process that began at 1:45am, and approximately three hours before his interview with D.C. Vandenberg), the accused received the full primary caution in its standard wording, after being formally arrested on charges expressly including the two charges being advanced in this proceeding; i.e., sexual assault and sexual interference. On both occasions, the accused expressly indicated, when asked, that he understood the primary caution.
b. Prior to the relevant police interview, (indeed, immediately prior to that police interview), the accused exercised his right to counsel by speaking to defence lawyer Geoff Snow over the telephone. In that regard:
i. The Supreme Court of Canada repeatedly has indicated that, if a detainee has exercised his or her right to counsel, he or she presumably will have been informed of his or her right to remain silent, and therefore his or her right to choose whether or not to volunteer information to the police, given that information volunteered to the police may be used against him or her in criminal proceedings.54
ii. In this case, that presumption is reinforced by the accused’s own statements volunteered to D.C. Vandenberg, (despite the detective expressly indicating to the accused that he did not want to know what the accused discussed with his lawyer)55, expressly and repeatedly indicating that his lawyer had provided instructions described as follows:
“He told me not to say anything”;56
“My lawyer told me not to say anything”;57
“My lawyer told me not to talk to you guys”;58
“Like my lawyer told me, he’s like, ‘Don’t say anything to them. It’s like you think you’re having a casual conversation with them; don’t say anything because they do just that’”.59
“I want to talk to my lawyer actually. I just want to make sure that like I’m not doing anything that he told me not to do. He told me not to talk to you at all. … He said it would sound like a regular conversation.”60
iii. The accused in this case nevertheless made a choice to speak and continue speaking with D.C. Vandenberg.
c. While he may not have used the wording of the standard caution, D.C. Vandenberg indicated to the accused at a very early stage in the interview that he had no obligation to answer the detective’s questions,61 and that everything being said in the room was not only being recorded but also “on the record”.62 In relation to the latter phrase, the detective made it clear, (through a warning about the accused talking about drug matters during the interview), that the accused could get into “trouble because you say something on record that you shouldn’t”.63
d. At a very early stage in the interview, the detective also made clear the specific jeopardy the accused was in; e.g., by once again setting out the various charges against the accused, which already had been provided expressly to the accused by Constable Haemmerli during her multiple arrests of the accused.64
e. Notwithstanding all of the above, the accused in this case nevertheless made a choice to speak and continue speaking with D.C. Vandenberg, providing numerous indications that the choice was deliberate and purposive; i.e., because the accused was confident that he had done nothing wrong in relation to the sexual assault and sexual interference charges, and wanted to provide the police with his exculpatory assertions in that regard. Indeed, the accused expressly and repeatedly acknowledges that to be his purpose approximately half way through the interview, with the following comments: “I just want you to let you know, my lawyer told me not to say anything, so I’m saying I feel like I’m nuts. I’m listening to you, you can tell I’m a real honest person, okay, so can you please do that with me. I’m – I’m only answering these questions to you because I know what I’m saying is true. I know that I did not do anything along these lines. I did not have sex with her prior to the age of 16. I never sexually assaulted her. And that’s what I want my statement and record thing to be.”
f. In my view, the conscious and deliberate nature of the accused’s informed choice to speak with the detective, and answer his questions, is underscored by the fact that the continues to do so despite an express confirmation from D.C. Vandenberg that a recording of the interview “will be played in court.65
g. As defence counsel emphasized, there most definitely was a change in the tone and demeanour of the accused part way through the interview, i.e., with the accused expressing obvious regret for comments made to D.C. Vandenberg, and making emphatic requests and indications that he wanted his comments removed from the record on the supposed basis that he was not aware he was providing a “statement” to the detective, and his lawyer had cautioned him against providing a “statement”. However:
i. In my view, objective consideration of the circumstances makes it quite clear that the accused’s rather abrupt change in demeanour and position was not prompted by such semantics, but by the sudden realization, (brought home to him by other comments made by the detective), that the accused’s protestations of innocence were founded in part on a mistake of law; i.e., insofar as he apparently believed that the law against sexual interference merely prohibited various forms of sexual intercourse with someone under the age of 16.
ii. In particular, the accused obviously grew upset, asked for a break, and thereafter indicated a change of position with his proffered focus on ignorance about what constituted a “statement”, only after D.C. Vandenberg had explained that the crime of sexual interference also applied to other forms of sexual activity with someone under the age of 16, including kissing – which the accused already had acknowledged doing with the complainant.
iii. More fundamentally, it needs to be emphasized that the “operating mind” requirement does not require an accused’s awareness that he or she is giving a formal “statement”. As noted above, it simply requires an accused’s awareness of what he or she is saying, that it is being said to a police officer, and that such volunteered information may be used in criminal proceedings against the accused. An accused speaking to police in such circumstances effectively demonstrates his or her voluntary choice to forego the right to silence. For the reasons outlined above, I think that was the case here, (i.e., with the accused actually wanting his statements to be used in the underlying criminal proceedings until the accused realized that he had not made a wise or good choice in that regard; e.g., insofar as the accused realized that he unknowingly had made a statement, (i.e., an admission of kissing the complainant while she was under the age of 16), that was potentially incriminating. However, as also noted above, the “operating mind” requirement for voluntariness does not turn on an accused’s ability to make wise or good choices when it comes to volunteering information to the police.
Conclusion
47For all such reasons, I decided that the Crown had proved the voluntariness of the statements made by the accused to D.C. Vandenberg, during the relevant police interview, beyond a reasonable doubt.
48Without limiting the generality of the foregoing, in my view none of the factors identified by the Supreme Court of Canada in R. v. Oickle, supra, either separately or together, gave rise to any reasonable doubt concerning the voluntariness of those statements.
Next return date
49Since the argument of this application, and my indicated conclusion confirming voluntariness of the relevant police interview statements for reasons to follow, this matter has proceeded to trial.
50The matter already has been scheduled to be back before me on January 13, 2021, for anticipated delivery of my verdict and reasons for that verdict.
Ian F. Leach
Justice I.F. Leach
Date: January 4, 2021
SCHEDULE “A”
Necessary revisions to draft transcript reflecting comments made during “parade video”
In his response at page 1, line 17, the accused says “believe I hit that cop. I was kind of so stupid. It’s…”
In his response at page 1, line 27, the accused also indicated “Unit 1214”.
In his response at page 1, line 29, the accused indicated the day and year of his birth - which I will not reproduce here, consistent with the publication ban.
At page 2, line 18, Sergeant Brown’s comments include a request for Constable Haemmerli’s badge number.
At page 2, line 19, Constable Haemmerli responded by saying “Haemmerli, 159”, and not “Furley, 159”.
At page 2, line 32, the accused’s remarks noted as “indiscernible” include a reference to someone having “died”.
At page 4, line 20, Constable Haemmerli’s response is “I’m okay, unless you want it, but”.
At page 8, lines 2-6, the response of the accused is “Yeah, I do, I understand that. I’m just trying to understand why I’m being charged with sexual assault, which is like a fate worse than death man. I’d rather…”.
At page 8, lines 11 and 16, the accused refers to “PTSD”, not “PTSC”.
At page 8, line 21, the accused’s response is “No, nothing. Nothing that matters. Nothing at all”.
At page 8, lines 28, the last line of the accused’s response begins “ah, Biphentin, but I don’t take it”, after which his further comments become indiscernible.
At page 8, line 29, Sergeant Brown says “So you’re not taking Biphentin?”
At page 9, lines 5-6, the accused’s response ends with the words “it is certainly Seroquel”.
At page 9, line 16, the accused’s response is “Yeah, it was a really rough life man…”.
At page 9, lines 31-32, Sergeant Brown’s question is “Are you PC, seg or general population?”
SCHEDULE “B”
Necessary revisions to draft transcript reflecting comments made during “police interview”
At page 3, line 21, the accused says “…and they ripped me off for the rest…”
At page 3, lines 26-28, the accused’s comments begin with “A lot of the bunch of my friends have bailed on me for reasons I don’t know why, and now I’m starting to see. And these people…”
At page 5, line 17, the accused’s comments include “…with fucking, um, that I’m being charged with…”
At page 5, lines 20-21, the accused’s comments are “…for a – a knife, um, possession of a knife and then evade arrest, right?”
At page 6, lines 10-11, the accused’s comments are “…and unauthorized possession of a prohibited weapon”.
At page 6, all the comments at lines 16-19 are spoken by the accused, and are as follows: “So how many charges are there? Can you write – can you write down the charges now? I want to see. Like I’m trying to… So I have three failed to complies, right?”
At page 6, lines 28-29, the accused’s comments are “And unauthorized possession of a prohibited weapon.”
At page 7, line 8, the first two words spoken by D.C. Vandenberg on that line are “to flee”, rather than “to fee”.
At page 7, lines 10-12, the comments spoken by the accused are “I just didn’t know what to do, man, and like you know what, I thought I’d get away, but I – I’d been up for several days without thinking straight and…”
At page 8, lines 21-22, the comments spoken by the accused are “I think – I think I did a piece of shit move.”
At page 9, line 16, the comments spoken by the accused are “Yeah, but so to speak, yeah.”
At page 12, lines 31-32, the comments spoken by the accused are “That’s right. I tried to kill myself with my head in a grocery bag and these guys can…”
At page 15, line 28, the comments spoken by the accused are “Like I literally have to walk, go all the way, take…”
At page 15, line 31, the accused says “route” rather than “rout”.
At page 16, lines 10-11, the accused seems to say “…goof and this and that through – through the device in windows screen sub-wizard and they were responding to the…”
At page 17, lines 12-13, the accused says “…what I felt I needed to do man, and this is because of that. That’s what I did last August because I…”
At page 18, line 8, the accused says “…people she likes and she just doesn’t care. Like…”
At page 19, line 17, the accused says “…she smoked all of it away in a year, man. I stayed in the…”
At page 19, line 26, the accused says “…Yeah, grade seven or grade eight, yeah, so I…”
At page 23, line 17, the accused says “…know. Like people are fucking baffling dude. Like…”
At page 24, lines 17-18, the accused says “Yeah. Me, like I’ve – everything that I buy or do – like my dope, I don’t go and steal it. I don’t…”
At page 25, line 5, the accused says “It’s like, it’s some people who just wanna…but I don’t…”
At page 26, line 21, the accused says “…but then, um, I went back for some more weed and then when…”
At page 26, lines 31-32, the accused says “….down, but coming off like prior drug use and like my head was everywhere, like everywhere…”
At page 29, line 24, the accused says “..sad down and these people knew me there and I’m like, I don’t…”
At page 31, line 23, the accused says “…be a potentially life altering thing for me, man. Like, first of…”
At page 32, line 21, the accused says “…the street and then my buddy rips me off and then all of my…”
At page 33, line 10, the accused says “That’s the only reason why I did what I did and…”
At page 36, line 2, the accused says “I just can’t go past it sometimes.”
At page 37, line 15, the accused says “…with a – when everything happened originally last year, okay…”
At page 38, line 29, the accused says “Looking back, no, not even then…”
At page 39, line 28, the accused says “Yeah. No, that’s impossible, ‘cause at Danny’s…”
At page 40, line 32, the accused says “I mean with Nix, Nix is this way, she’s – she’s a…”
At page 41, line 13, the accused says “…sending messages she said I sent which I apparently deleted…”
At page 41, lines 20-21, the accused says “…message. She made a fake profile called ‘Angry birds’, or ‘A’ for angry, or ‘A birds’, and sent…”
At page 43, lines 28-29, the accused says “But me, myself, I don’t have – like I had similar issues, but not to that extent, so it’s like – I’m like…”
At page 44, line 4, the accused says “She’d know like, that’s what I wanted, but I – I…”
At page 44, line 13, D.C. Vandenberg says “…because even – like any type of trauma or shitty thing in your…”
At page 45, lines 8-10, the accused says “…to get more and more problematic and like I wouldn’t – I went days without seeing her – and I was like kind of staying there ‘cause she…”
At page 45, line 14, the accused says “…don’t know where ‘Call the Office’ is? Like really?”
At page 45, line 29, the accused says “…mom’s – or used to be – a stripper. …”
At page 45, line 32, to page 46, line 1, the accused says “…about him, but like, due, for her family, who I don’t really know – the brothers and sisters she has then then…”
At page 46, line 24, the accused says “…man, and it’s just, it’s horrible.”
At page 46, line 32, the accused says “…legitimate – like I’ve never had any sort of stable like shit…”
At page 47, line 12, the accused says “…I’d fucking die for a girl in a minute okay, and I’m saying…”
At page 49, line 8, the accused says “…you doing out there?’ Like she said she’s fucking in a bush by Victoria Park.”
At page 49, lines 12-13, the accused says “…I know, right, and I’m like ‘How is that when I start dating this girl – because I – I don’t like to lie…”
At page 49, line 23, the accused says “…and like when I say like ‘fucked her’, I just have to say this…”
At page 50, line 18, the accused says “…do what you wanted to do then got the hell out of…”
At page 51, lines 13-14, the accused says “…it is what we had to do and she didn’t really want to adhere to it, man, she’s – she’s pretty pushy. But I…”
At page 51, line 26, D.C. Vandenberg says “…asked you that – you said yeah, ‘like it was my choice, she was….”
At page 52, line 1, the accused says “…because it’s not – this – this, man, is a fate worse than…”
At page 53, line 4, the accused says “…assault, sexual interference. It’s horrifying.”
At page 53, line 25, the accused says “get bail. I will not get fucking bail. I’m gonna sit there for…”
At page 54, line 21, the accused says “…something to you and then later on like I’m gonna be in…”
At page 55, line 8, the accused says “…don’t even – in a state of disbelief because of what’s going on…”
At page 55, line 17, D.C. Vandenberg says “…and I think it’s important to figure out before - it’s just her side…”
At page 57, lines 8-9, D.C. Vandenberg says “…maybe I felt bad for her, man, like nobody else wanted a fuckin’ relationship. No real friends, nobody really…”
At page 59, lines 25-26, the accused says “…for me, so I looked it up and I found out the age of consent was 16, that you couldn’t have any fort of like, ….”
At page 62, line 6, D.C. Vandenberg says “…from like kissing to sex, there’s a lot in between that…”
At page 65, line 11, the accused says “…understand what you meant when you said it was on the…”
At page 66, line 5, the accused says “…and I’m like wait a minute, if this is me giving a statement…”
At page 66, line 7, the accused says “…to you about this, man. And you came at me so casually, so…”
At page 67, line 17, the accused says “I would, but are you gonna ask me questions…”
At page 70, line 19, the accused says “I was just tired. I didn’t want to be involved.”
At page 70, line 32, the accused says “When did these warrants come out? Like…”
At page 72, line 10, the accused says “She was just like holding my bag so I…”
At page 73, line 5, the accused says “I didn’t even have anything to do with anything.”
At page 73, line 29, the accused says “…know – you know my history with London police then, eh?”
At page 74, line 9, D.C. Vandenberg says “…right? But like, Blaine, this one – this one’s bad,…”
At page 74, line 31, the accused says “…general, once you been on it so long your mind gets fucked up.”
At page 75, line 27, the accused says “I’d say Miss, I know you don’t know me, but I’m…”
At page 76, lines 3-4, the accused says “I’m so sorry and I feel really, really, really – like I said all along – like I wish I could go back and just put my…”
At page 76, lines 27-28, D.C. Vandenberg says “…I call her after this and say that you apologized and me making her aware if, you know, he ever sees you on – on…”
At page 77, line 32, the accused says “It was dog spray.”
At page 79, line 10, the accused says “…they were trying to say like, ‘Do you have meth on…”
At page 81, line 28, the accused says “…is that – Am I correct on that? You…”
At page 84, lines 21 to 24, D.C. Vandenberg asks “Or they get reduced? How many times?”, and the accused responds by asking “Do you think the Crown’s gonna be as understanding as you when it comes to court, man?”
At page 94, line 18, the accused says “…go okay, well, here’s his record, he’s a piece of…”
At page 95, line 12, the accused says “…mind right now, wondering where I am.”
At page 96, line 1, the accused says “…they even – because of like what I said, like I’m…”
At page 96, line 31, the accused says “…people. I’ve got three friends and I’m just trying to…”
At page 97, line 16, D.C. Vandenberg says “…things that are – that you’ve done wrong, the things against…”
At page 97, line 29, the accused says “…blind luck, like, what are the chances that this would…”
At page 98, line 13, the accused says “…it, I’m gonna plead – plead out to those.”
At page 99, line 2, the accused says “It’s sexual interference?”
When asked whether the accused said anything to indicate that he had consumed drugs, Constable Koekebakker said that he personally had not heard the accused say anything of that nature, but allowed for the possibility that the accused might have made such a comment without the officer hearing or noting it.
When asked if the resistant behavior demonstrated by the accused was consistent with use of drugs, Constable Koekebakker indicated that it seemed more consistent with fear of being detained and/or a desire to resist arrest, (e.g., in the face of an outstanding warrant), but acknowledged that drugs sometimes made people aggressive.
When asked whether he had seen anything to suggest that the accused may have been suffering from mental health issues at the time, Constable Koekebakker candidly noted that he had not engaged with the accused long enough to ascertain whether or not there were any such issues.
Footnotes
- Ms Zavitz was counsel for the accused when the Crown’s voluntariness application was heard and argued. Since that time, through to trial, Mr Amiteshwar Singh has represented the accused.
- The two separate video recordings actually were supplied to the court via one “USB stick”, but each recording on that stick was notionally “marked” as a separate exhibit.
- The draft transcript relating to the relevant police interview video recording was supplied to me at Tab 3 of the Crown’s application record. The draft transcript relating to the “parade video” was not available when the Crown filed its original application record, and therefore was tendered as a supplementary filing by the Crown. For the sake of completeness, I note that the Crown also filed another five page document, (entitled “Log of CELLSINTERVIEW111 on 15/05/2019”), which appears to be the typed notes prepared by D.C. Vandenberg’s partner, Detective Bonnet, in the scribe room while the police interview between D.C. Vandenberg and the accused was taking place next door. However, no reference was made to that document during the course of the application hearing, and in my view the video recording is the direct and best evidence of what happened during the interview in any event.
- There were some occasional incidental lapses of memory and/or confusion created by reference to incomplete notes; e.g., with Constable Haemmerli initially making a mistake about which of two weapons found in the possession of the accused, (a knife and pepper spray), may have given rise to two sequential weapon-related charges. However, the officer provided appropriate correction and clarification in that regard, and in my view such errors did not detract from the more relevant portions of the testimony being presented.
- The full wording of that standard text, read aloud by Constable Haemmerli during the course of her testimony, is as follows: “It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a number that will put you in contact with duty counsel. Do you understand?”
- In that regard, Constable Haemmerli began the primary caution as recommended by expressly advising the accused, once again, that he was charged with each of the offences listed in sub-paragraph 21(k) of these reasons; i.e., the charges the officer also had enumerated expressly when arresting the accused for the second time. The full wording of the standard text of the remainder of the primary caution, read aloud by Constable Haemmerli during the course of her testimony, is as follows: “You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you understand?”
- Constable Koekebakker remained at the scene, standing outside of Constable Haemmerli’s police vehicle, until Constable Haemmerli and the accused departed for LPS headquarters. He initially returned to the ditch, where he engaged in unsuccessful efforts to locate the accused’s missing cellular phone, before resuming his patrol duties. In the result, Constable Koekebakker had no further interaction with the accused.
- The evidence I received did not make it clear whether Mr Snow was a defence lawyer whom the accused specifically asked to speak to as an alternative to Mr Seaman, (if Mr Seaman was unavailable), or was put in touch with the accused through Legal Aid Ontario.
- Without limiting the generality of the foregoing, I note that, while I received no direct testimony from Sergeant Brown in relation to such matters, Constable Balla was present during Sergeant’s Brown’s interactions with the accused, (e.g., during the secondary search), and confirmed that no such threats were made by Sergeant Brown or anyone else.
- Without limiting the generality of the foregoing, I note Constable Balla’s express confirmation that Sergeant Brown made no such promises to the accused during the secondary search procedure or otherwise.
- See the transcript of the police interview, at pp. 9-10.
- This is the articulation offered by McIntyre J.A. (as he then was) in R. v. Jackson (1977), 1977 CanLII 287 (BC CA), 34 C.C.C. (2d) 35 (B.C.C.A.), adopted by the Supreme Court of Canada in R. v. Oickle, supra, at paragraph 51, of the type of promised benefit needed to vitiate the voluntariness of a confession.
- As the accused put it: “I did offer to give you guys some fentanyl [information] … to make my situation better and talk, and I want to trade information at this time.”
- In response to the accused’s initial proactive suggestion of such a “quid pro quo” exchange of drug information for leniency, D.C. Vandenberg said this: “I don’t think you want to say anything more on record, right? … I don’t want to get into anything like that. I’m not, ah, the Drug Unit, okay? … We’re just gonna deal with what I came down here for, okay? Because I don’t want to see you get [in] any type of trouble … because you say something on record that you shouldn’t.”
- R. v. Oickle, supra, at paragraph 60.
- R. v. Oickle, supra, at paragraph 61.
- When Sergeant Brown asked “Do you have injuries currently?”, the accused responded by saying: “No, nothing. Nothing that matters. Nothing at all.”
- See R. v. Oickle, supra, at paragraph 65.
- Ibid., at paragraph 66.
- See Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p.697; and R. v. Oickle, supra, at paragraph 66.
- See R. v. Oickle, supra, at paragraph 67.
- See Rothman v. The Queen, supra, at p.697.
- See R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp.286-287.
- See R. v. Rothman, supra, at p.697; and R. v. Oickle, supra, at paragraph 66.
- See R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at p.936, and R. v. Oickle, supra, at paragraph 63.
- See R. v. Whittle, supra, at p. 939.
- In the course of her submissions, defence counsel also suggested in passing that the accused may have been suffering from head trauma, owing to the several blows inflicted upon him during the course of his being caught, subdued and restrained. However, I agree with Crown counsel that the suggestion engages in speculation without a satisfactory evidentiary basis.
- See the parade interview transcript, at pp.2-3.
- Ibid., at p.8.
- See the police interview transcript, at pp.74-75.
- Ibid., at p.17.
- Ibid., at p.24.
- See the police interview transcript, at p.26.
- Ibid., at p.7.
- Ibid., at p.18-19.
- Constable Koekebakker’s answers in that regard were extraordinarily fair and balanced, reinforcing my general impression that he was doing his best to be truthful and accurate, thereby making his testimony about what he could remember more forceful and impressive. For example:
- See the transcript of the police interview, at pages 1 and 3.
- See the police interview transcript at pp. 13 and 78.
- See, for example, the police interview transcript at pp.38-41 and 88-89
- Ibid., at pp. 59 and 61-62.
- Ibid., at p.99.
- Ibid., at p.91.
- Ibid., at p.99.
- See the police interview transcript, at p.77.
- See the transcript of the police interview, at p.4.
- See the transcript of the police interview, at pp.1, 2-3 and 76.
- See the transcript of the police interview, at pp.8 and 76-77.
- See the transcript of the police interview, at pp. 2, 5, 9, 23, 16, 63, 73 and 75.
- See the transcript of the police interview, at p.83.
- See R. v. E.B., 2011 ONCA 194, [2011] O.J. No. 1042 (C.A.), at paragraph 91.
- See R. v. Whittle, supra, at paragraph 45.
- Indeed, as noted by Justice McIntyre in Clarkson v. R., supra, at p.399, the familiar and customary warning, derived from the English Judges’ Rules, “was designed to ensure knowledge of the consequences of the statement, that is, its possible use in proceedings against the accused”.
- See R. v. E.B., supra, at paragraph 91.
- See, for example, R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p.184; and R. v. Singh, supra, at paragraph 33.
- See the transcript of the police interview, at page 2.
- Ibid., at page 2.
- Ibid., at page 52.
- Ibid., at page 52.
- Ibid., at page 54.
- Ibid., at page 63.
- Ibid., at p.10. In that regard, D.C. Vandenberg expressly said the following to the accused: “If I ask you something and you just don’t want to answer, you don’t have to.” The accused responded by saying “Okay”.
- Ibid., at pp.1-2.
- Ibid., at pp.2-3.
- Ibid., pp.5-6.
- Ibid., at p.53.