ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 078-18

DATE: 2021/10/21

B E T W E E N:

HER MAJESTY THE QUEEN

D. McCaig, for the Crown

• and -

M.G.

Accused

C. Bracken, for the Accused

HEARD: October 6 and 13, 2021

m.g. ellies r.s.j.

REASONS FOR DECISION

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, no information that might identify the person described in this judgment as the complainant shall be published, broadcast or transmitted in any manner.

OVERVIEW

[1] M.G. (the “accused”) is charged with sexually assaulting and sexually interfering with M.S. (the “complainant”). In this voir dire, the Crown seeks a ruling on the voluntariness of a written apology made by the accused to the complainant at the end of a police interview and of the verbal statements made by the accused during that interview.

[2] For the following reasons, I find that both the written and the verbal statements were made voluntarily.

BACKGROUND

The Interview

[3] The offences in question are alleged to have occurred between January 1, 2008, and December 31, 2012. They were previously investigated by both the Children’s Aid Society and the police, but no charges were laid (see 2019 ONSC 5090).

[4] The police later renewed their investigation. On the morning of January 26, 2018, Officer Carlton of the North Bay Police Service called the accused and left a message on his voicemail, asking him to come into the police station. The accused called back and agreed to attend. He drove to the station from his home in Sturgeon Falls, about 35 kilometres away.

[5] When he arrived at the station, the accused presented himself to the receptionist and was asked to have a seat in the waiting room. A short while later, Officer Carlton and another officer met the accused in the reception area and escorted him from the public area through a door into a more secure area, where they arrested him for the present offences. The accused was interviewed briefly by another officer, who took possession of the accused’s cell phone, rings, etc. The accused was allowed to keep his eyeglasses and a Tim Horton’s coffee he had brought with him to the station. He was then escorted by Officer Carlton into the interview room.

[6] The interview began at about 11:42 a.m. and ended at about 1:50 p.m. The officer spent the first part of the interview asking questions about the accused’s relationship with the complainant, her mother, and her siblings. When finally confronted with the complainant’s allegations that he came into her bedroom and sexually touched her, the accused denied them.

[7] However, the officer then confronted the accused with the fact that he had entered the complainant’s bedroom one night when her grandmother was sleeping there and touched the grandmother’s vagina over her clothes. The accused remembered going drinking with his partner and her mother, going to the bathroom when they got home, and then passing out on the floor of the bedroom in question. But he told the officer that he had no memory of touching the grandmother.

[8] At this point in the interview, the officer became more forceful. He suggested to the accused that he had gone into the bedroom thinking that the complainant was in there, to do to her what he had done to her before. He put to the accused that he was either an alcoholic or a predator and asked him which one he was. The accused became visibly upset and kept telling the officer that he did not remember touching the grandmother or ever going into the bedroom to do anything other than tuck the kids into bed.

[9] The officer refused to accept the accused’s denials. He insisted the accused did remember touching the complainant and he wanted to know why. The accused continued to insist that he did not remember touching the complainant. At times during the rest of the interview, he denied the allegations outright and, at other times, said that he refused to admit what he could not remember doing.

[10] At about 1:10 p.m., after repeated questioning, the accused began to admit that if it was true that he had touched the grandmother, then it was possible that had touched the complainant. At about 1:13 p.m., the officer asked the accused what he would say to the complaint if she was standing outside the interview room door. The accused said that he would apologize.

[11] At about 1:14 p.m., the accused stated “I’m a fucking monster. I hurt my daughter.” However, he continued to insist he did not remember touching her.

[12] Shortly afterward, the officer told the accused that he was going to give him a chance to apologize. He left the interview room and re-entered about five minutes later with a piece of paper. The accused was crying. He told the officer, “I don’t have an explanation for her. I don’t know why I would. If I did, I’m sorry.” The accused asked the officer what would happen if he wrote the apology letter and was told that he would be charged in any event. The officer told the accused that he did not have to write the letter and he did not have to apologize to the complainant. He then left the room.

[13] At about 1:42 p.m., the accused began to write the letter and at about 1:48 p.m. he was finished. The officer re-entered the room and removed the accused, leaving the letter on the table.

[14] The letter is brief. It reads:

Dear [Complainant],

I apologize for any harm that I have caused you while under the influence. I was obviously not in the right frame of mind. I hope that we can both move pass (sic) this and find hapiness (sic) in each of our lives. I feel terrible for the pain that I have caused. Maybe one day you can forgive me.

M.G.

The Accused’s Evidence

[15] The accused was a snow plough operator at the time the statements were made. He testified that he was on a shift change at the time. I gather that he had finished work at 6 p.m. on January 24 and was to work from 6 p.m. to 6 a.m. on January 26. He had gotten up at 8:30 a.m. on January 25 and intended to stay up all day and all night, go to bed at 6:30 or 7 a.m. on the 26th, and sleep until at least 4 p.m. that day before going to work all night.

[16] The accused testified that he had consumed a few beers as he prepared dinner on the night of the 25th. He said that he and his girlfriend got into an argument that night, as a result of which he consumed more beer, which he took outside to drink while he was shoveling snow. After his girlfriend went to bed, he watched television, during which he consumed two-to-three more beer, before falling asleep at about 7 or 7:30 a.m. He estimates he had between eight and ten been in the 24 hours before being woken up at about 9:30 a.m. by the officer’s telephone call.

[17] The call went right to the accused’s voicemail. After listening to the message, he called the officer back. He was told only that there were allegations against him. He testified that he told the officer that he had only slept perhaps two hours and asked if he could come in later. However, the officer told him it was serious and the accused agreed to go in that morning.

[18] The accused testified that he was worried about whether he was sober enough to drive, so he picked up a coffee on his way to North Bay. The accused said that he was shocked when the officer later arrested him and told him what the charges were.

[19] The accused testified that the officer was “fine” with him at first, but at some point, he began to feel pressure. He said that he felt as though the officer was trying “to force” a confession out of him. He was afraid of saying the wrong thing, he was angry, he was tired, and he was having trouble processing everything. He testified that he felt as though he was having an emotional “meltdown” for the first time ever.

[20] By the time the officer handed the accused a pen and paper, he was emotionally, physically, and mentally drained and just wanted to leave the interview, he testified. He thought that making an apology was his “ticket out”, although he also testified that he did not know what would happen to him if he did not. He testified that he tried to write the most “sarcastic” note he could.

[21] The accused was released shortly after the interview concluded, at between 3:30 and 3:45 p.m.

THE ISSUE

[22] On behalf of the accused, Mr. Bracken (who has been appointed under s. 486.3 of the Criminal Code only for the purpose of cross-examining the complainant, but who has graciously appeared to assist the accused in this voir dire) concedes that there is no evidence of threats or promises being made by the police that might affect the admissibility of the statements made by the accused during the interview.

[23] However, he submits that the circumstances surrounding the taking of the statements, including the accused’s lack of sleep and the forceful nature of the officer’s questioning, were such that they should raise a reasonable doubt about whether those statements were made voluntarily.

ANALYSIS

[24] Before it can use an accused’s statement to the police, even to cross-examine an accused, the Crown must prove beyond a reasonable doubt that the statement was given voluntarily: Ibrahim v. R., [1914] A.C. 599 (Hong Kong P.C.). Historically, the concern with confessions was that they were induced by the “hope of advantage” or the “fear of prejudice”: R. v. Oickle, 2000 SCC 38, at para. 49. The modern confessions rule recognizes that the underlying concern of the classic confessions rule is the reliability of the confession: Oickle, at para. 47.

[25] Oppressive circumstances can render a confession involuntary: Oickle, at para. 58. These can include depriving the interviewee of food or water, of access to counsel, or subjecting him to excessively aggressive, intimidating questioning for a prolonged period of time: Oickle, at para. 60. Of course, what may not be oppressive to some interviewees may be oppressive to others. Each case must be assessed on its own facts.

[26] In this case, almost all of the interaction between the officer and the accused that led to the oral and written statements was video recorded. As a result, I am not required to rely solely on the evidence of the accused or the officer with respect to what happened. I have the advantage of viewing the interview myself.

[27] Based on what I see in the recording, I am not able to accept the submission that the accused’s will was overborne in the circumstances of this interview.

[28] As I wrote earlier, the accused was permitted to bring his Tim Horton’s coffee into the room and he had it with him throughout the entire interview. He was asked several times at the beginning of the interview if he wanted to speak to counsel and he refused the invitation. The interview lasted only about two hours and ten minutes. At no time during the interview did the accused ask to leave (except to go for a cigarette, which the officer would not permit) or that the questioning stop.

[29] I agree with the accused and Mr. Bracken that the officer was forceful. At times, he came too close to the line. However, in my view, he never crossed it. The fact that he refused to accept the accused’s statement that he did not remember touching either the grandmother or the complainant did not serve to override the accused’s will, in my view.

[30] The effect of the accused’s lack of sleep is not apparent in the video. He appears to be lucid at all times and never complains that he is tired. In the face of the officer’s forceful questioning, the accused maintained throughout the interview that he did not remember touching either female.

[31] The allegedly inculpatory statements themselves also fail to raise a reasonable doubt about their voluntariness. At times, the accused went beyond saying that he just could not remember touching either female to denying that he did, even towards the end of the interview (at 1:10 p.m.). The written statement is also less inculpatory than it might be if the accused’s will was actually overborne. It does not go much further than the accused went verbally, apologizing only for “any” harm caused while he was drunk.

[32] Of course, the question remains as to whether the accused was being truthful when he said and wrote these things, indicating that he had no memory of touching the complainant and going only so far as to apologize if, in fact, he did. However, for the purposes of this voir dire, the statements themselves do not do much to raise a reasonable doubt about their voluntariness. Nor do the circumstances surrounding their making.

CONCLUSION

[33] For these reasons, I am satisfied beyond a reasonable doubt that the verbal and written statements made by the accused during the interview with Officer Carlton on January 26, 2018, were made voluntarily within the legal meaning of that term and are, therefore, admissible in this trial.

M.G. Ellies R.S.J.

Released: October 21 , 2021

COURT FILE NO.: CR 078-18

DATE: 2021/10/21

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

M.G.

REASONS FOR decision

Ellies J.

Released: October 21, 2021