COURT FILE NO.: 375/20
DATE: September 17, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Tyler Shuster; Kevin Kim, for the Crown
- and -
Riley Kostuk
Mary Cremer, for Mr. Kostuk
HEARD: August 16 – 20, 2021
The Honourable Mr. Justice H. S. Arrell
JUDGMENT re VOLUNTARINESS OF STATEMENTS
INTRODUCTION:
[1] The accused is charged with second degree murder in the death of Jacob Peets on June 29, 2019, in the City of St. Catharines, contrary to section 235(1) of the Criminal Code of Canada.
[2] The Crown brings this application seeking a ruling that three statements given to the police at various times by the accused were voluntary. The Crown also seeks a ruling that the clothes seized by the police which were worn by the accused at the time of the murder are admissible.
[3] The accused opposes the motions on the basis that his s. 10(a) and 10(b) Charter rights were violated to such an extent that the statements should be considered involuntary and likewise the seized clothes ruled inadmissible.
FACTS:
[4] A full version of the facts are set out in my reasons in R. v. Kostuk 2021 ONSC 6123
[5] For the purposes of the current motions the facts that are most relevant begin after the murder.
[6] It is conceded that the accused, along with Emily Raymond, called 911. The accused agrees that the comments he made to the 911 operator are properly admissible.
[7] The accused was still on his phone to the 911 operator when the first officer, P.C. Robert Nolet, arrived on the scene. He was quickly followed by P.C. Mathew Milne.
[8] According to Officer Nolet, the accused was visibly upset. He had blood on his hands and clothes. This officer attended with him while Officer Milne attended with the two females on the scene being Ms. Terryberry and Ms. Lampman.
[9] The first statement the Crown wants admitted occurred on the front doorstep of 38 Plymouth Ave. between the accused and Officer Nolet. The officer was in uniform and he had arrived in a marked police cruiser with lights flashing. There can be no doubt that the accused would have been fully aware that he was speaking to a police officer. The officer made notes of the discussions in point form and not verbatim. He had no recording device available. He remembered his activities at the scene usually without the assistance of his notes when giving his evidence.
[10] According to the officer, he saw no reason to caution the accused before he said anything or offer him the chance to call counsel because as far as this officer was concerned this was the very beginning of an investigation into a serious assault and the accused who called 911 was likely a key witness to what happened. He was in no way considered a suspect or person of interest by this officer at that stage of the investigation.
[11] Officer Nolet stated it became obvious that the accused was fixated on his injured friend and the scene which was happening a short distance away in front of 45 Plymouth Ave. because from where they were situated he had a perfect view of the activities of the other first responders who had by this time arrived. The accused became more visibly upset and distracted. As such Officer Nolet made the decision to move out of view of the scene to a quieter location. As such he suggested they move to the rear of 45 Plymouth Ave. where the accused had been staying. It is at this location that the second statement was made by the accused.
[12] The evidence of Officer Nolet was to the effect that he was trying to calm the accused down, reassure him that everything that could be done for his friend was being done and find out more about what happened. He advised the court that the accused in his mind was in no way a suspect at this point but a person with valuable information about what happened and who possible suspects might be.
[13] Based on what the accused told Officer Nolet, he had gone back into the house to get money to pay the taxi which had let them off at his house. The accused stated that the deceased, Jacob Peets, had remained with the taxi. The accused further stated to Officer Nolet that when he came back out the taxi was gone, and Jacob Peets was lying on his stomach with blood coming out of him. Clearly, the officer was very interested in getting a full description of the taxi and the driver. He made notes of this interaction but candidly admitted they were not verbatim, nor did he note the exact questions he asked the accused.
[14] Shortly after these discussions with Officer Nolet, the scene supervisor, Sgt. Shawn Parrent, joined the accused and Officer Nolet at the back of the house. He also heard about the taxi and was very interested in getting a full description of both the taxi and the driver as a major highway to the U.S. and Toronto was only one block away. He testified that he wanted to make sure possible suspects were not already fleeing the scene. He also at no point during this interaction with accused considered him a suspect or a person of interest. He viewed him as a knowledgeable witness as to what happened. He also made point form notes.
[15] At the scene, Sgt. Parrent had directed various officers to do various tasks. He did not want the witnesses mixing and discussing events between themselves until they had given proper statements to the homicide detectives who had been called in and were assembling at the police office in St. Catharines. All of the first responder police officers met with the detectives at a team meeting at 5:00 am. Such a team meeting at this juncture of a homicide investigation was a standard practice according to Sgt. Parrent so that the detectives could be fully brought up to speed on what the first responding officers had found out.
[16] It was at this team meeting that it became apparent that there was an eyewitness to the events who told a very different story than the accused. That witness, Alicia Handley, was a neighbour who heard a commotion on the street and looked out her window. She saw two males pushing and shoving each other. One male, with a black T-shirt and khaki shorts, pushed the other male who fell to the road and remained there. He was the deceased. The other male with the black T-shirt ran back into 45 Plymouth Ave. The accused was wearing a black T-shirt and khaki shorts which had blood on them. He was staying at 45 Plymouth Ave.
[17] Det. sgt. Paul Thiebert was assigned as the lead detective to head up this investigation. Once he heard this different version from what was reported the accused had said, he concluded that the accused was at that point a potential suspect.
[18] The accused and Ms. Raymond, his girlfriend and also a witness, had been waiting outside the police station in St. Catharines to speak to the detectives. The accused had also called his parents who had arrived. Somehow, the accused got out of his khaki shorts and into a pair of sweatpants. He gave the shorts to his father. This occurred unbeknownst to Sgt. Thiebert who after the team meeting concluded the blood-stained clothes the accused was wearing would likely be important to the investigation and ordered them seized. He testified that if they were not seized immediately they could disappear, become contaminated, altered, become lost, or destroyed. He stated that he believed it was impracticable to wait to get a warrant. He knew it would take some time to get a warrant which could have jeopardized the integrity of the clothes as evidence.
[19] The Crown does not seek to have admitted any comments made by the accused while he gave over his clothes to Det. Nickolas Allender. All such comments were recorded. He was taken to a private room. He was cautioned that he did not have to speak to them and could call a lawyer if he wished. The accused did comment that he wished to call a lawyer and Det. Allender confirmed that would occur before he gave any statement. He was advised that he was free to go after giving the police his clothes and he would be provided with a jump suit for the time being. He agreed to give up his clothes which occurred and then he went back to the lobby and then outside the police station to wait with his family and friends. He had access to cell phones while waiting with them but did not call a lawyer.
[20] Ms. Handley had been brought to the station and a formal statement had been taken from her confirming in more detail what she had told Officer Milne at the scene. The two female witnesses at the scene had also been interviewed as had Emily Raymond. The taxi driver had also been located at by this time and had confirmed he had been paid at the scene and had left with all three occupants walking into 45 Plymouth Ave. Based on all of this new information, Sgt. Thiebert concluded there were reasonable and probable grounds to arrest the accused for second degree murder at 6:40 am.
[21] Det. Allender, along with P.C. Bielby, went to arrest the accused which occurred at 6:48 am. He was cautioned fully and repeatedly that he did not have to say anything and had the right to call counsel. He indicated he wanted to call lawyer, Jeff Root, and did not wish to say anything. There is no statement the Crown wishes ruled admissible from the arrest.
[22] The accused was transported to Niagara Regional Police headquarters in Niagara Falls which was the only location with holding cells and private facilities for an accused to consult with his lawyer. He was booked and placed in a cell. The booking Sgt. arranged for a family member to retrieve his medication which was given to him when received at 9:11 am and prior to his interview. He was given food, water and a blanket and, in fact, slept for a period of time before being interviewed by Det. Jeremy Difranco which was recorded on video starting at 1:47 pm. and ended about one hour and twenty minutes later.
[23] Once booked, P.C. Bielby, who had transported the accused to Niagara Falls, called his lawyer for him on three occasions, by calling his cell, his home and his office and leaving a message on each occasion. His lawyer called back at 7:37 am and spoke to the accused privately. He had video bail court at 10:50 am. And was remanded in custody. His lawyer was notified by the police in advance of the bail court and again spoke to the accused.
[24] The accused was extensively cautioned by Det. Difranco prior to commencing the video interview. He thoroughly explained the charges the accused was facing and the possible penalty. The accused confirmed he had spoken to his lawyer and was satisfied with the advice he had been given. He further confirmed he understood that he did not have to say anything and that he understood the charges. He also confirmed he had been treated well by the police and no officer had threatened him or promised him anything. He was further told he could go back to his cell at any time and did not have to speak to the detective.
[25] The interview was not aggressive. The accused was coherent and clearly understood the questions asked and responded appropriately.
THE LAW:
[26] If the Crown seeks to rely on any utterances of the accused obtained by persons in authority, it must prove beyond a reasonable doubt that such utterances are voluntary in the broad sense. The Supreme Court of Canada had occasion to consider the confession rule in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 and summarized the applicable legal principles as follows:
While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible if it was made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision.
[27] The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine demonstrates the confessions rule also extends to protect a broader conception of voluntariness “that focuses on the protection of the accused’s rights and fairness in the criminal justice process.” Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, the Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons it is inadmissible. R. v. Oickle, supra.
[28] In R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at para. 35 the court stated:
The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.'s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness "that focuses on the protection of the accused's rights and fairness in the criminal process": J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.
[29] Protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes are the twin goals of the confessions rule. In that regard the court in R. v. Oickle, supra.at para 33 stated:
In defining the confessions rule, it is important to keep in mind its twin goals of protecting the rights of the accused without unduly limiting society's need to investigate and solve crimes. Martin J.A. accurately delineated this tension in R. v. Precourt (1976), 18 O.R. (2d) 714 at p. 721, 39 C.C.C. (2d) 311 (C.A.):
Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminal investigation . . .
On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible . . .
All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of either of these objectives.
[30] The right to silence as a common law principle reflects the general principle that absent statutory or other legal compulsion no one is obligated to provide information to the police or respond to questioning. The defining statement of this right is as follows:
In Canada the right of a suspect not to say anything to the police is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. The common law recognizes the individual’s right to remain silent.
R. v. Singh, supra, at para 27
[31] The onus is on the Crown to show the reasonableness of the seizure of the clothes on a balance of probabilities since the seizure was without warrant. See R. v. Merritt, 2017 ONSC 80, at para. 13.
[32] The issue is whether the police had grounds to obtain a warrant under s.487(1) of the Criminal Code and whether exigent circumstances rendered it impractical to do so. If so, then there was no violation of the Charter and the clothes are admissible. See Merritt, at para. 72.
[33] A warrant will issue to seize an item if it is reasonable to conclude it is likely that the seized item will yield some relevant evidence. See, R. v. Canadian Broadcasting Corp. (1992), 77 C.C.C. (3d) 341; CanadianOxy Chemicals Ltd. V. Canada (Attorney General), [1999] 1 S.C.R. 743 at para.15 where Major J. instructed as follows:
On a plain reading, the phrase “evidence with respect to the commission of an offence” is a broad statement, encompassing all materials which might shed light on the circumstances of an event which appears to constitute an offence. The natural and ordinary meaning of this phrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant.
POSITION OF THE PARTIES:
[34] The Crown submits very simply that all three statements of the accused were given voluntarily and none of his Charter rights were breached in any way. The three statements are relevant and should be heard by the jury to evaluate. The first two statements were given when the accused was considered a witness and not a suspect or person of interest, according to the Crown. These two statements were given at the very preliminary stages of the investigation by someone who had in fact called the police to attend and reported that his best friend had been seriously injured. The Crown submits there was nothing to indicate to the police at that point in time that the accused was anything but a witness.
[35] Likewise the Crown argues that the video statement was voluntary. There were no threats or inducements. The accused was thoroughly cautioned and had spoken to his lawyer twice. He had had a bail hearing. He fully acknowledged he understood the charges and the possible penalty. He also acknowledged that he was satisfied with the advice given to him by his lawyer. He understood the questions asked and responded. He was not aggressively interrogated nor intimidated. None of his Charter rights were violated according the Crown.
[36] Finally, the Crown submits that the police taking the accused clothes under exigent circumstances was properly done and properly justified under all the circumstances. The accused was cautioned that he need not say anything and would be able to consult a lawyer. The clothes were an important piece of evidence that needed to be maintained and their integrity protected. There were no Charter breaches in the seizure of the clothes according to the Crown.
[37] The Defence wishes this court to conclude on the facts that objectively the accused was in fact a suspect from the moment P.C. Nolet arrived on the scene and, in reality, he was immediately detained. He had blood on him. He was always accompanied by a police officer. His personal information for a background check was being called in by P.C. Nolet while speaking to the accused which was not done with other witnesses. The officer’s notes are vague and not wholesome with much of the conversation missing. All of the above facts the Defence argues point to the fact that the police in fact considered him a suspect very early in the investigation and by not cautioning him and advising of his right to counsel his Charter rights were significantly breached given the seriousness of the charges such that the statements should be ruled involuntary and should not be admitted.
[38] The Defence further argues that the video statement was contaminated by the prior Charter breaches and should be ruled inadmissible. The totality of past breaches, the delay of 6 hours between the accused speaking to his lawyer and the interview and his changed jeopardy all lead to these Charter breaches. As well, the video is too prejudicial and trial fairness dictates that if I rule the video is voluntary then I should refuse its admissibility on the basis of the prejudice caused by the extensive comments about the accused’s mental health and lack of medication during the interview. All of which makes this statement more prejudicial than probative submits the Defence.
[39] Finally, the Defence submits, the clothes should be ruled inadmissible evidence. There was no reason a warrant could not have been obtained it is suggested. Likewise, the accused at that stage was clearly a potential suspect as the stated by Sgt. Thiebert after the team meeting. He should have been allowed to call counsel as he wanted to do before his clothes were taken. The Defence argues there was no reason he could not have called counsel from the private room he was in using his own cell phone or be given the number to call Legal Aid for advice regarding his clothes. Such a Charter breach, according to the defence, should result in the clothes not being admissible into evidence.
ANALYSIS:
[40] I have no hesitation in concluding beyond a reasonable doubt that the first and second statements to P.C. Nolet and Sgt. Parrent were voluntary. The accused had called 911. He was standing at the scene. It was his best friend, according to him, who was injured. He was insinuating that his injury was caused by the taxi driver. According to the accused, he had blood on himself from attempting to help his injured friend.
[41] I disagree with the Defence that objectively the court should rule that the accused should have been considered a suspect from the beginning. The two officers gave their evidence in a straightforward and forthright manner clearly setting out their opinions that the accused was an important witness at that stage but not a suspect. Their evidence did not waver on cross-examination. I agree with the police conclusion that until they were aware of the witness, Alicia Handley, the accused would objectively not have been considered a suspect.
[42] The accused was well aware that his friend was seriously injured because he, in fact, had told 911 that he thought he was dead. He clearly knew he was speaking to police and that this would be a serious matter. From the very beginning, it appears that he may have attempted to deflect attention away from himself and on to the taxi, according to the Crown theory. Certainly, the accused was a vital witness and the police wanted to interview him, but he was never treated as a suspect. He was never handcuffed, he was never searched, he was left alone in the house with Emily Raymond for a period of time. His phone was never taken. Both, he and Ms. Raymond were transported together in a police car to the police station, something that is never done with a suspect, according to all the police witnesses.
[43] I therefore conclude that the statements to P.C. Nolet and Sgt. Parrent are admissible as voluntary up to the point of the accused asking to speak to a lawyer prior to being transported to the police station. The Crown does not seek to have those subsequent comments ruled admissible or in fact any utterances by the accused thereafter up to the video statement. I further conclude that there were no Charter breaches in taking these two statements and therefore there is no necessity for a S. 24(2) Charter analysis.
[44] I likewise conclude that the video statement was also voluntarily given. There is no suggestion of any threats or promises. The accused had been given his medication. He had spoken to his lawyer on two occasions earlier in the day. He had had a bail hearing. He understood the charges he was facing and the potential penalty was clearly explained to him. He had slept, he had been given food and beverages. The interview was extremely civilized with no aggression or raised voice by Det. Difranco. There was no trickery. There was no change in his jeopardy during the interview that necessitated that he be given an opportunity to again speak to his lawyer and in fact he never asked to. He was told he was free to go back to his cell at any time but never asked to until the very end of the interview at which time Det. Difranco immediately ended his questioning. In my view, the accused never lacked an operating mind during the interview and his freedom of will was at all times intact.
[45] I disagree with the submissions of Defence Counsel that the delay between speaking to counsel and the interview was unduly long especially considering that he had had a bail hearing in between. In my view there were no Charter breaches which impacted the voluntariness of the video interview or necessitates a S. 24(2) Charter analysis.
[46] I also disagree with Defence Counsel that I should rule the video statement more prejudicial than probative because of the mental health issues of the accused being discussed. This was a topic he raised in the interview and it was simply perused by Det. Difranco. It is clear from all the evidence that the jury will hear about the mental health of the accused. I see nothing prejudicial about it being discussed in the interview.
[47] I conclude that the seizing of the accused’s clothes occurred under exigent circumstances. It was obvious that these clothes had blood on them. There is no doubt they were worn by the accused. They are necessary as a key part of the identification evidence given the likely evidence of Ms. Handley. It was imperative that the integrity of the clothes be maintained. In fact, the shorts were already missing as the accused was not yet arrested and had changed with the help of family or friends.
[48] I acknowledge that Det. Allender advised the accused that he could call a lawyer if he wished which the accused said he did. The officer said first he had to take his clothes to which the accused replied, “that’s fine”. The accused also asked if he was being detained to which the officer replied only for the purpose of getting his clothes and then the accused was free to go which he did by rejoining others outside the police station. He voluntarily gave the officer his clothes.
[49] I accept the evidence of Sgt. Thiebert that at the time of seizing the accused clothes he was in his mind a potential suspect but there were not yet reasonable and probable grounds to arrest him or detain him. That did not occur until a detailed statement from Ms. Handley was obtained as well as from several other witnesses. I also accept the officer’s evidence that after the clothes were seized the accused was no longer detained and was free to go. As the Sgt. said if he left the police would simply have to go and find him if necessary.
[50] The issue is whether the police had grounds to obtain a warrant under s. 487(1) of the Criminal Code and whether exigent circumstances rendered it impractical to do so. If so, then there was no violation of the Charter and the clothes are admissible. R. v. Merritt, 2017 ONSC 80 at para. 72.
[51] There is no doubt in my view that the police had ample grounds to obtain a warrant to seize the clothes. Clearly these blood-stained clothes would likely reveal some evidence regarding the incident under investigation.
[52] I am equally of the opinion it would have been impractical get a warrant. It was around 6:00 am. on a Saturday morning. The accused was not under arrest and, in fact, not detained. He had already changed out of his shorts unbeknownst to the police. It would take some time to draft an ITO and then locate a judicial officer to review it and issue a warrant. By that time the accused could have left with family or friends who were at the station and discarded, lost, altered, or washed the clothes.
[53] The onus is on the Crown to show the reasonableness of the seizure of the clothes on a balance of probabilities since the seizure was without warrant. See Merritt at para. 13. I conclude that the Crown has met the burden and the clothes are admissible into evidence.
Arrell, J.
Released: September 17, 2021
COURT FILE NO.: 375/20
DATE: September 17, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and -
Riley Kostuk
JUDGMENT
Released: September 17, 2021