OSHAWA COURT FILE NO.: CR-19-15006
DATE: 2022 01 21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CORY FENN
Defendant
Michael Newell and David Slessor, for the Crown
Self-Represented, for the Defendant
Mary Cremer, as Amicus Curiae
HEARD: September 21-24, 27-29, October 1, 4-7, 12, 18, 2021
REASONS FOR RULING ON VOLUNTARINESS
LEIBOVICH J.
[1] Mr. Fenn is charged with the second-degree murders of Krassimira Pejcinovski (Krissy), Ratomir Pejcinovski (Roy) and Veneillia Pejcinvoski (Vana). The incident took place on March 14, 2018. Mr. Fenn is self-represented and has elected to have a trial by judge alone. Amicus Curiae has been appointed.
[2] Mr. Fenn was arrested at 6:20 p.m. on March 14, 2018. He provided a videotaped statement the next morning at approximately 9:00 a.m. The Crown seeks to have the statement admitted as part of its case and asserts that it was made voluntarily. A fairly lengthy voir dire was held during the course of the trial to determine if the Crown had proven beyond a reasonable doubt that the statement was voluntary. In addition, I have considered the evidence surrounding Mr. Fenn’s arrest in the shed at 81 Phillips Street, which was led as part of the trial proper. The Crown submits that there is no evidence of any coercion, inducements, abusive or oppressive behaviour, that the police acted professionally throughout, and that Mr. Fenn had an operating mind when he decided to speak to the police. Mr. Fenn declined to cross-examine any witnesses, call evidence, or make submissions. However, it was his position that the statement should not be admitted. Amicus Curiae cross-examined some witnesses and made submissions. Amicus Curiae pointed to three areas that should cause the Court concern regarding whether the Crown has met its burden: 1) the police “jumped the gun” and started an unnecessary physical interaction with Mr. Fenn upon his arrest which could have caused Mr. Fenn to be concerned that he had to speak with the police or suffer a similar fate; 2) there is some evidence of oppressive behaviour as the police had Mr. Fenn handcuffed to the wall while waiting during the booking process instead of putting him in a dry cell; and 3) there is evidence that Mr. Fenn did not have an operating mind during the video interview.
[3] Shortly after the voir dire was concluded, I informed the parties that the statement was voluntary and can be admitted with reasons to follow. These are those reasons.
The Relevant Facts
The arrest of Mr. Fenn
[4] Mr. Fenn was found in a loft/shelf area of a backyard shed at 81 Phillips Street in Oshawa, the address of Mr. Fenn’s ex-girlfriend and mother of his two children. Numerous members of the Durham Tactical Support unit testified about the arrest. While not all the officers saw all parts of the arrest of Mr. Fenn, in general, they testified that Mr. Fenn was found in the loft[^1] area of the shed. He was found behind a wooden snowman decoration.
[5] Mr. Fenn was told to keep his hands up and then to come down from the loft. He made his way down from the loft with his back towards the police officers. Once he was down, a scuffle, lasting 30 seconds to one minute, ensued before the police were able to handcuff Mr. Fenn. With respect to how and why the scuffle started the following evidence was heard:
Officer Dunfield testified that he saw Mr. Fenn on the ground flailing his arms and legs and not complying to multiple requests to show his hands and stop resisting. Mr. Fenn was thrashing his arms and legs;
Officer MacFarland testified that he was the first person in the shed. He saw a man’s head behind the wooden snowman. He pointed his firearm, which had a light under the barrel, at the man on the loft. He told the man to show his hands. He complied. Officer MacFarland testified that Officer Byers took over issuing the commands as Officer Byers ended up with a better view. Officer MacFarland testified that he exited the shed but then re-entered the shed with the other officers. He was now the last one back in. He saw Mr. Fenn on the ground trying to get up. Officer MacFarland testified that other officers were trying to restrain Fenn’s upper body. Officer MacFarland could only see Mr. Fenn’s legs, which were free. He went to secure the legs and was going to place his knee on Mr. Fenn’s calf. Officer MacFarland had placed his MP5 in a sling. Mr. Fenn hit his sling as he was trying to get up and the MP5 went into Officer MacFarland’s teeth. Officer MacFarland saw stars and exited the shed. He confirmed in cross-examination that it was Mr. Fenn who hit his gun and not one of the other officers;
Officer Couvillion testified that Mr. Fenn was lowering himself down from the loft. He was following commands. But when he reached the ground, he turned quickly with his hand towards the barrel of Officer Byers’s gun. Officer Couvillon moved in and hit Mr. Fenn in the side of the head with his fists several times as hard as he could to get Mr. Fenn away from the MP5. Officer Couvillion hit him in his chest area. Mr. Fenn was on the ground with his hands underneath him but was trying to get up and striking out with his right elbow. Officer Couvillion asked him for his hands. He reached for Mr. Fenn’s arms but then Mr. Fenn would pull it back. He was focusing on Mr. Fenn’s right arm. Mr. Fenn got tired and Officer Couvillion was able to get his arms behind his back and handcuff him. Officer Couvillion said that everyone was tired. He described himself as exhausted and said that Mr. Fenn outweighed him by 70 pounds. Mr. Fenn was very strong. He brought Mr. Fenn to his feet and brought him outside the shed. Mr. Fenn was able to walk by himself;
Officer Malcom testified that he saw that other officers were having a hard time controlling Mr. Fenn, who appeared to be resisting. He could not say who was doing what. His view was somewhat obstructed. He tasered Mr. Fenn in the back to get Mr. Fenn to comply but it was not effective. Mr. Fenn was still struggling. He repositioned the taser and fired again. This time it was effective. Mr. Fenn stopped struggling and the police were able to handcuff his hands. He helped remove Mr. Fenn from the shed. He was seated outside the shed and handed over to DC Whelan. Mr. Fenn had no difficulty with his coordination or balance. The paramedics came over and Mr. Fenn was cooperative with them;
Officer Parro testified that he saw Mr. Fenn coming down from the loft. He did not have any trouble with his balance or coordination as he reached the ground. He was coming down in a slow deliberate manner. However, when he reached the ground he turned quickly to his right. The movement was uncharacteristic, and he did not know why Mr. Fenn did it. Officer Parro testified that Mr. Fenn and the officers tumbled en masse. Officer Parro told him to stop resisting, release his hands and put them behind his back. He would not comply. Mr. Fenn tucked his hands underneath his chest. Officer Parro applied knee strikes to the back of Mr. Fenn’s knee. Officer Parro was focused on Mr. Fenn’s left arm. A taser was used. The struggle lasted around 30 seconds. Once Mr. Fenn was handcuffed, he was compliant. At 6:20 p.m., he and another officer escorted Mr. Fenn outside the shed and turned him over to Officer Whelan. Mr. Fenn was coordinated and compliant. Officer Parro was asked if Mr. Fenn’s arms were just pinned underneath. The officer said that no, he was purposely pulling his arms away and tucking them in;
Officer Vandenberg testified that he heard Officer MacFarland and Officer Byers issuing commands to Mr. Fenn when Mr. Fenn was on the loft. Mr. Fenn complied. Mr. Fenn appeared to understand, and continued to comply as he lowered himself to the ground. Upon reaching the ground, Mr. Fenn abruptly turned, and the team of officers closed the distance and took Mr. Fenn to the ground. Mr. Fenn was within arms length of the officers when he turned. As Mr. Fenn went to the ground he began to kick. Officer Vandenburg gave him three thrust kicks to the meaty part of his leg. Mr. Fenn flipped over on to his stomach. Officer Vandenburg could hear other officers saying show me your hands. He heard a taser being deployed;
Officer Byers testified that he saw Mr. Fenn in the shed behind the wooden snowman. He told Mr. Fenn to keep his hands up and not to make any abrupt movements. Mr. Fenn slid down with his hands in the air. Mr. Fenn said he understood. There was no problem with his balance. He was able to shimmy down on his belly. When Mr. Fenn reached the ground, he made an abrupt spin to his right and appeared to reach for the MP5. Officer Byers thought that there would be a fight for the gun but Officer Couvillion hit Mr. Fenn in the head. Mr. Fenn fell to the ground and Officer Byers gave him knee strikes to the back of his legs. The knee strikes were not working, and Officer Byers was getting tired. Mr. Fenn was tasered, but it had no effect. Mr. Fenn knocked the tasers off. He was tasered again. Officer Byers testified that he and the officers were tired. Mr. Fenn was bigger and stronger than him. Once Mr. Fenn’s hands were pried behind his back and handcuffed, he stopped struggling. He handed Mr. Fenn over to Officer Whelan.
[6] All of the officers testified that Mr. Fenn did not have anything in his hands, was not verbally abusive, and did not verbally threaten them at any point.
Placed under arrest at 81 Phillips Street
[7] Officer Whelan testified that he approached Mr. Fenn at 6:20 p.m., he arrested Mr. Fenn for two counts of second-degree murder and one count of attempted murder. He read Mr. Fenn his rights to counsel. Mr. Fenn seemed to understand and seemed to be coherent. Mr. Fenn said that he had no money, was not working, and did not know who to call. Officer Whelan explained to him that he could call his lawyer if he had one or he could call duty counsel, that it was free, and he did not need any money. Mr. Fenn said that he would like to speak to duty counsel. Officer Whelan testified that he was not concerned that Mr. Fenn did not understand or that he was impaired by drugs or alcohol. He appeared sober and his responses were appropriate.
[8] Mr. Fenn was handed over to Officer Suthers at 6:32 p.m.
[9] Officer Whelan testified that he never threatened Mr. Fenn, never made any promises to him, and never made any inducements to him to encourage him to give a statement. He did not hear any other officer do so either.
Injuries to Mr. Fenn
[10] As a result of his arrest, Mr. Fenn suffered some injuries. Paramedic Derek Lantz testified that he treated Mr. Fenn at 81 Phillips Street. Mr. Fenn had a two-inch cut above his right eyebrow, had blood from his nose and a small cut on his right index finger. His nose was bleeding but not deformed. It was slow and active with clots. The bleeding over the eye was a controlled bleed. Mr. Lantz testified that Mr. Fenn did not complain of any pain. He said he had right knee discomfort. Mr. Lantz checked Mr. Fenn for head injuries. Mr. Fenn knew where he was, who he was, and when it was. He was coherent and communicating properly. He checked Mr. Fenn’s vital signs. He had a strong pulse. His pupils were normal size. His heart rate was 130. There were no complaints of blurred vision or headaches. Mr. Fenn did not ask for any medical assistance. Mr. Lantz had no concerns about Fenn’s sobriety. Another paramedic removed the taser probes from his back at 6:15 pm. Mr. Lantz placed a bandage around his head. He took Mr. Fenn’s vital signs again at 6:20 p.m., and the only change was that his heart rate was declining. Mr. Fenn was compliant and respectful. He was not rude or threatening.
Driving to the police station
[11] Office Suthers testified that he drove Mr. Fenn to the police station. He left 81 Phillips at 6:34 p.m. and arrived at the police station at 6:41 p.m. Paramedic Lantz travelled with Mr. Fenn to the police station. He watched Mr. Fenn. There was no change.
Arriving at the police station
[12] Mr. Fenn arrived at the police station at 6:41 p.m. and was paraded before the Booking Sergeant at 6:41 p.m. At 7:52 p.m., he left the booking area and was taken to the hospital. The booking video was played at the voir dire. In addition, Officers Whelan, Janovitz, Suthers, Ellis, and Bennet, as well as Paramedic Lantz, all of whom can be seen on the booking video, testified at the voir dire.
[13] At 6:52 p.m., Mr. Fenn’s handcuffs were removed, and he was then handcuffed to the wall. At various times during the course of the video he was given water in a Dixie cup. All told, he was given water on six occasions. Mr. Fenn could not be placed in a cell with running water until he was examined by Forensic Identification Services (“FIS”). During the voir dire, a number of officers were asked why Mr. Fenn was not placed in a dry cell pending his examination from FIS. A dry cell is a cell without running water and can be used for a temporary period. No one was able to answer that question. Officer Whelan said that it was the Sergeant-In-Charge who decided that Mr. Fenn should be handcuffed to the wall. Officer Whelan thought it was Officer Suthers’s decision. Officer Suthers testified that he could not recall.
[14] At 6:57 p.m., Officer Whelan spoke with Mr. Fenn. Officer Whelan testified that he gathered from Mr. Fenn tombstone information such as his name, date of birth, and potential sureties. He informed Mr. Fenn that he could not give him a bottle of water, but he could provide water in a cup.
[15] At 7:13 p.m., Officer Whelan can be seen on the video talking again with Mr. Fenn. Officer Whelan testified that he asked Mr. Fenn if he wanted to go to the hospital and Mr. Fenn indicated that he did not. He told Mr. Fenn that he was calling duty counsel for him. He also told Mr. Fenn that the police would be coming to take pictures, collect his clothing, and then he would have a chance to clean up afterwards. Officer Whelan testified that he placed a call to duty counsel at 7:17 p.m.
[16] At 7:25 p.m., Mr. Fenn was informed that Legal Aid was on the phone to talk to him. He was unhandcuffed from the wall and placed in a private room at 7:26 p.m. to speak to duty counsel.
[17] At 7:34 p.m., Mr. Fenn finished speaking with duty counsel. He exited the room and sat on the bench, but he was not handcuffed.
[18] At 7:35 p.m., Officers Ellis and Bennet from FIS arrived and interacted with Mr. Fenn. They took pictures of him and had him turn to his right and left. Mr. Fenn can be seen on the video following their directions and, in some instances, anticipating their directions. Pictures were taken with his jacket on and off. Mr. Fenn was not wearing a shirt underneath his jacket. Mr. Fenn’s jacket and shoes were taken and placed in a bag. Officer Ellis testified that Mr. Fenn understood what the officer was saying, he was cooperative and did not complain. Mr. Fenn knew the pattern of the photos.
[19] At 7:40 p.m., Mr. Fenn was taken to another private room where his pants were taken. Officer Janovitz testified that he was present in this room. There was no video camera, for privacy reasons, in this room. Officer Janovitz testified that neither he nor anyone else in that room attempted to encourage Mr. Fenn to make a statement, provided any inducements to Mr. Fenn, or threatened Mr. Fenn. Officer Ellis, who was also present in the room, testified that he did not attempt to persuade or encourage Mr. Fenn to give a statement, that he did not threaten Mr. Fenn, and that he did not use physical force. Office Suthers, who was also present in the side room, confirmed that there were no attempts to get a statement or, any threats to Mr. Fenn while in the side room. Mr. Fenn was calm and compliant. He was the same outside the room as inside the room.
[20] At 7:43 p.m., Mr. Fenn was brought back in the main room and placed back on the bench. He was not handcuffed. The suit he was given was too small. Mr. Fenn, while he was in the private room, stated that he was feeling lightheaded.
[21] At 7:44 p.m., Mr. Fenn can be seen blowing his nose. Officer Ellis testified that Mr. Fenn spontaneously uttered that he had cocaine in his nose.
[22] At 7:45 p.m., paramedic Lantz took Mr. Fenn’s vitals. Mr. Lantz testified that Mr. Fenn’s vital signs were normal, and his heart rate was now at 90. Mr. Lantz was not concerned about Mr. Fenn’s alertness, gait, or balance. Mr. Lantz did not believe that Mr. Fenn needed emergency medical care. He ultimately did travel with Mr. Fenn to the hospital.
[23] At 7:49 p.m. and 7:50 p.m., FIS swabbed Mr. Fenn’s nails. At 7:50 p.m., Mr. Fenn was given a bigger suit. He was escorted back to the private side room to change. He re-emerged at 7:51 p.m. in the suit and sat on the bench. Officer Suthers testified that he was present and again there were no threats to Mr. Fenn and no attempts to get a statement from him while he changed into the large suit. There was also no change in Mr. Fenn’s demeanour. At 7:52 p.m., he was handcuffed.
[24] Office Suthers testified that he did not have any concerns with Mr. Fenn’s balance, coordination, or gait. Mr. Fenn had no problems communicating or focusing, and there was nothing unusual about his speech.
The hospital
[25] Officer Suthers testified that he transported Mr. Fenn at 7:58 p.m. with paramedic Lantz to the hospital. They arrived at 8:02 p.m. Mr. Fenn was placed in a hospital room and examined. Officer Duerdin was also sent to the hospital. Either he or Officer Suthers was in the hospital room at all times.
[26] Officer Suthers testified that Mr. Fenn’s behaviour at the hospital was no different than at the police station. Officer Suthers testified that the booking video is a good example of Mr. Fenn’s behaviour. He was not aggressive or angry. He was polite, quiet, and monotone with no emotions.
[27] Office Suthers testified that at 10:25 p.m., Officer Taylor arrived and told Mr. Fenn that he was now being charged with a third count of second-degree murder. Officer Taylor read Mr. Fenn his rights to counsel. Mr. Fenn indicated that he understood. Officer Taylor then read the secondary caution and Mr. Fenn said he understood. Officer Suthers said that Mr. Fenn was asked if he wants to speak to a lawyer. Mr. Fenn said no. Officer Suthers testified that Mr. Fenn was medically cleared at 10:49 p.m., and that he had no fractures.
[28] Officer Duerdin was informed that Mr. Fenn’s x-rays and CT scan were negative. He was given a prescription for Mr. Fenn, lorazepam, a type of ibuprofen. Officer Duerdin testified that he drove Mr. Fenn back to the police station at 11:26 p.m., arriving at 11:28 p.m. Officer Duerdin testified that Mr. Fenn was not asked about giving a statement nor did Officer Duerdin threaten or induce him into giving him a statement. Officer Duerdin testified that Mr. Fenn, based on his body language, seemed slightly confused and emotional. They did not have a conversation.
[29] Officer Suthers testified that after Mr. Fenn returned to the police station and was paraded again, he escorted Mr. Fenn first to cell 27 and then to cell 28. He was moved to cell no. 28 at 12:04 a.m.
[30] Officer Suthers testified that he never tried to illicit any statements from Mr. Fenn. There were no inducements, threats, or physical force used. He did not have an investigative role. He was only present for security. Officer Suthers testified that when he transported Mr. Fenn anywhere, he never threatened Mr. Fenn to make a statement or encouraged him to make a statement.
[31] Officers Bennet and Bolton from FIS attended at the hospital. Officer Bennet testified at the voir dire. She and Officer Bolton attended at the hospital to take pictures of Mr. Fenn without his bandages. Apart from introducing herself and explaining her purpose there, she did not recall having any conversation with Mr. Fenn at the hospital. Her purpose was not to interview him. She did not encourage, threaten, or induce him into giving a statement. Neither did Officer Bolton.
Overnight in the Cells
[32] Sergeant Davidson was the sergeant in the cell blocks at 17 Division on March 15, 2018. He started work on the 15th at 4:30 a.m. Prior to testifying at the voir dire, he watched the videos of cell number 28, Mr. Fenn’s cell, from the time he was lodged in it. Mr. Fenn stayed in his cell all night. No officers engaged with him except to bring him juice and granola bars. Officer Davidson took Mr. Fenn out of his cell, gave him a change of clothes, and brought him to Officer Pillman at 9:02 a.m. Along the way they did not engage in conversation. Officer Davidson did not threaten him or encourage him to speak.
The videotaped statement with Officer Pillman
[33] Officer Pillman testified at the voir dire and his videotaped interview with Mr. Fenn was made an exhibit.
[34] Mr. Fenn was brought into the interview room at 9:09 a.m. Mr. Fenn almost immediately tucked his arms in his shirt. Officer Pillman testified that he recalled the room being warm. He did not know why Mr. Fenn tucked his arms in his shirt, whether it was for comfort or if he was cold. Officer Pillman testified that he did not ask if he was cold or offer him a blanket. He did not see Mr. Fenn shivering or trying to regulate his body temperature.
[35] Officer Pillman entered the interview room at 9:11 a.m. and reminded Mr. Fenn that he was been charged with three counts of murder. Officer Pillman also provided Mr. Fenn with another chance to speak to duty counsel because a third murder charge had been added. Mr. Fenn said no. Officer Pillman reminded him that he does not have to speak to him and not to let anything anyone else said influence him. Mr. Fenn said that no one told him to say anything.
[36] Officer Pillman told him to let him know if he is hungry.
[37] At 9:30 a.m., Mr. Fenn and Officer Pillman discussed getting some food. Officer Pillman left the room at 9:31 a.m. to get food. He returned at 9:56 am with a burger and a coke. Officer Pillman and Mr. Fenn then resumed the interview while eating their burgers. While Officer Pillman was away, Mr. Fenn remained on his chair breathing heavily.
[38] Officer Pillman left the room again at 10:47 a.m. While he was away Mr. Fenn stayed on his chair, again breathing heavily. He then placed his head down on the table at approximately 10:53 a.m. Officer Pillman returned to the room at 10:58 a.m. He said “Cory”, and Mr. Fenn leaned back. He asked Mr. Fenn if he was awake. Mr. Fenn said yes, he was.
[39] Officer Pillman left the interview room at 11:13 a.m. While out of the room, Mr. Fenn lied on the ground for a few seconds before returning to his chair. He then tucked his arms into his shirt again, tucked his head in, and placed his head on the table for a minute before sitting upright. Officer Pillman re-entered the room at 11:22 a.m. and explained to Mr. Fenn the bail process. The interview ended at 11:25 a.m.
[40] Officer Pillman testified that he did see Mr. Fenn yawn and that he did seem tired at times. He testified that in his view Mr. Fenn either put his head down because he was tired, or he was trying to avoid the interview.
[41] At the end of the interview, as they exited the room, Mr. Fenn asked Officer Pillman for medication or a prescription.
Law and Analysis
[42] The Crown must demonstrate beyond a reasonable doubt that any statement made to a person in authority was made voluntarily before it can be admitted at trial. The rule is animated by “[o]ne of the overriding concerns of the criminal justice system” – that “the innocent must not be convicted”: R. v. Hayes, 2020 ONCA 284 at para. 38, quoting from R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 36. A trial judge must engage in a contextual analysis and look at the relevant factors, such as: 1) whether there were any threats or promises; 2) whether there were any oppressive circumstances; 3) whether the accused had an operating mind; and 4) whether there were any instances of police trickery: R. v. Oickle, at paras. 47-71, R. v. Hayes, at para. 39.
[43] As stated by Tulloch J.A. in R. v. Hayes at para. 41:
Overall, in undertaking the confessions rule analysis, the trial judge “should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all aspects of the rule”: Oickle, at para. 71.
[44] In R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, the Supreme Court of Canada stated that voluntariness is the touchstone of the confessions rule. The Court stated at para. 35:
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.
Positions of the Parties
[45] It is the Crown’s position that it has met its onus and has proven beyond a reasonable doubt that the statement was made voluntarily. The Crown submits that there is no evidence of threats, coercions, inducements, or police trickery. The Crown focused its submissions on the issue of whether there was any oppressive conduct by the police and whether Mr. Fenn had an operating mind. The Crown submits that the physical force used to arrest Mr. Fenn was reasonable in the circumstances and produced minor injuries that were easily treated. The police conduct could not have produced any fear of further police aggression and that Mr. Fenn was treated with dignity and respect by all the officers involved. The Crown further submits that Mr. Fenn had an operating mind and that he chose to speak about what he wanted to and declined to speak about what he did not want to. Mr. Fenn controlled the interview.
[46] Mr. Fenn argued simply that the statement is inadmissible. Amicus Curiae argued that there are areas of concern. Amicus Curiae submits that the police “jumped the gun” and wrongly assumed that Mr. Fenn was making an aggressive move when they, en masse, used force to effect his arrest. The force used was excessive and the potential fear of further violence could be a reason why Mr. Fenn chose to speak to the police. In addition, the decision to handcuff Mr. Fenn to the wall at the station, instead of placing him in a dry cell was excessive and can be viewed as oppressive. Finally, there are concerns whether Mr. Fenn had the requisite operating mind because: 1) He was clearly sleep deprived and likely feeling the after effects of his consumption of drugs and alcohol; 2) he seems unable to regulate his body temperature as he placed his arms in his t-shirt; and, 3) he was still suffering from his injuries that involved a loss of blood.
No evidence of threats, inducements, coercion or police trickery
[47] In this case, there is no evidence that Mr. Fenn was threatened, induced, coerced, or tricked into giving a police statement. In addition to watching the video of the booking procedure and the video of the interview itself, I have heard evidence from eight police officers that dealt with Mr. Fenn from the moment he was placed under arrest until he gave his statement to Officer Pillman on March 15, 2018, approximately 15 hours later. I accept the testimony of the police witnesses who described the absence of any such measures and the limited interaction with Mr. Fenn. The evidence from the police witnesses is consistent with each other and not contradicted by any other evidence. A common theme from the police witnesses is that it was not their task to investigate the offences and therefore question Mr. Fenn. Rather, they were there to arrest and shepherd Mr. Fenn through the booking process, which in this case included, a trip to the hospital and back to the police station. Another theme from the police witnesses was that Mr. Fenn, once handcuffed, was cooperative and compliant which is confirmed by the police booking video.
Oppressive circumstances and lack of an operating mind
[48] The focus of this voir dire was whether there were oppressive circumstances in the arrest and subsequent treatment of Mr. Fenn or whether Mr. Fenn had the requisite operating mind.
Oppressive Circumstances
[49] The concept of oppression focuses on conduct of the police improperly overbearing or undermining the free will of an arrestee to choose whether or not to speak to the police: R. v. Horvath 1979 CanLII 16 (SCC), [1979] 2 SCR 376, 44 C.C.C. (2d) 385 (S.C.C.), at pp. 394-7; McIntosh, at para. 20; R. v. Hoilet (1999), 1999 CanLII 3740 (ON CA), 136 C.C.C. (3d) 449 (Ont. C.A.), at paras. 16-28. There is not a closed category of circumstances that will be considered oppressive. However, generally courts have considered:
the presence of distasteful custodial conditions;
inhumane conditions, confrontation with fabricated or non-existent evidence; and
excessively aggressive, intimidating questions: R. v. Oickle, at paras. 58-60.
[50] The presence or absence of oppressive circumstances is important not only in its own right, but also because it affects the overall voluntariness analysis; R v. Oickle, at para. 87.
[51] Excessive force used upon arrest is an important circumstance to consider in assessing whether any subsequent statement given was voluntary or instead the result of fear of further violence. However, the fact that force was used in arresting an accused does not automatically preclude a voluntary confession: R. v. Hatton (1978), 1978 CanLII 2398 (ON CA), 39 C.C.C. (2d) 281 (Ont. C.A.) at pp. 287, 294-298; R. v. KG, 2012 ONSC 2372, [2012] O.J. No. 1842, R. v. Deidun, 2019 ONSC 195, 2019 O.J. No. 387 at para. 86. Again, the onus is on the Crown to prove beyond a reasonable doubt that the statement was voluntary.
[52] Amicus Curiae submits that the police used excessive force in arresting Mr. Fenn. She submits that it makes no sense that Mr. Fenn would be compliant with the police when descending from the loft, compliant again when he was handcuffed, but in between make a sudden move to reach for one of the officer’s firearm. She submits that the only logical explanation is that the police, who were in a high stress situation, were confronting an accused wanted for serious charges in a dimly lit shed, and they overacted to Mr. Fenn’s simple move of turning around. In essence, Amicus Curiae submits that the police “jumped the gun”.
[53] I disagree. I accept the evidence of the police witnesses who arrested Mr. Fenn in the shed that force was used only when Mr. Fenn made a sudden move and that force had to be further used when Mr. Fenn continued to resist. I heard from seven officers who attempted to arrest Mr. Fenn in the shed. While they did not all have the same vantage point, their evidence is consistent with each other and not contradicted by any other evidence. This was not, as Amicus Curiae submitted, simply the police misinterpreting an innocent step by Mr. Fenn and then piling on. Rather, the police witnesses describe a sudden move towards a gun followed by active resisting by Mr. Fenn. Officers Couvillon, Parro, Vandenberg, and Byers all described the sudden move by Mr. Fenn after he descended from the loft. Officers Byers and Couvillon testified that they thought Mr. Fenn was reaching for Officer Byers’s gun. Officer Couvillion testified that he was so concerned that he hit Mr. Fenn in the head to prevent this from happening. Officers Dunfield, MacFarland, Couvillon, Malcolm, and Parro testified that Mr. Fenn, while on the ground, continued to resist. This was not, as submitted, simply Mr. Fenn’s hands being trapped underneath him. Officers Parro and Couvillon quite clearly described Mr. Fenn actively pulling his arms away from them so they would not be handcuffed. Only after Mr. Fenn was tasered a second time, did he finally tire, and the police were able to handcuff him; it was only then that he became compliant.
[54] This was a brief skirmish lasting between 30 seconds and a minute. It appears to have taken seven officers to handcuff Mr. Fenn. I do not find that suspicious in the circumstances. The skirmish took place in the confined area of the shed. Furthermore, as a number of officers testified, Mr. Fenn was a very strong, large person. The booking video confirms that Mr. Fenn was very large and muscular. The force used by the police was reasonable in the circumstances.
[55] I agree with Amicus Curiae that the evidence is undisputed that Mr. Fenn was completely compliant until he descended from the loft and once again after he was handcuffed and throughout that night when he was in police custody. I agree that there was also little sense in resisting arrest given the number of police officers, with weapons present. That being said, I am satisfied, as set out above, by the testimony of the police officers that I do accept that he did resist arrest, even though it was a foolish thing to do.
[56] Amicus Curiae takes issue with the decision to handcuff to the wall while seated on the bench at the police station while waiting for FIS. She submits it was excessive and indicative of an atmosphere of oppression. I disagree. I agree that no explanation was given for why Mr. Fenn was handcuffed to the wall instead of taken to a dry cell. However, I have watched the booking video carefully. While I am sure that Mr. Fenn would have been more comfortable if he was not handcuffed to the wall, he does not appear from the video to be in discomfort, nor can he be seen to be complaining of discomfort on the video. I note that he asked for and received numerous cups of water. In addition, it appears that he was handcuffed from 6:52 p.m. to 7:25 p.m., at which point he was taken to speak to duty counsel. Upon the completion of the call, he was not handcuffed again to the wall.
[57] When one looks at how the police treated Mr. Fenn from the moment he was arrested until he was interviewed by Officer Pillman, and throughout the interview by Officer Pillman, it is evident that Mr. Fenn was not subject to oppressive circumstances. I say this for the following:
The police had a paramedic on standby at the scene of the arrest. He immediately tended to Mr. Fenn’s minor injuries and bandaged his head. The paramedic took Mr. Fenn’s vital signs twice to make sure he was okay, and he accompanied Mr. Fenn to the police station;
The booking video shows that Mr. Fenn was treated politely and respectfully by the police. Mr. Fenn was too large for the standard prisoner jumpsuit, so one member of the FIS unit went to his truck to get one of their extra-large suits for Mr. Fenn;
Mr. Fenn asked for numerous cups of water and was given them;
After he removed his pants in a private room so that they could be given to FIS, Mr. Fenn complained of feeling lightheaded. He was promptly assessed again by the paramedic, who had waited at the police station while Mr. Fenn was being processed. Mr. Fenn was then promptly taken to the hospital, where he received medical treatment and was cleared and released by the medical staff;
Mr. Fenn was placed in a cell upon his return from the hospital. Throughout the night he slept and was given juice and granola bars;
Mr. Fenn was given a change of clothes before he spoke with Officer Pillman;
Mr. Fenn, during the police interview, said he was hungry. Officer Pillman went and bought him and Mr. Fenn hamburgers and ate them together during the interview; and
Mr. Fenn was not subject to aggressive questioning or anything of that sort by Officer Pillman during the interview. The interview was soft and gentle, no voices were raised, and no threatening body language was used.
Lack of Operating Mind
[58] The 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. As stated by the Supreme Court of Canada in R. v. Oickle, at para. 63:
This Court recently addressed this aspect of the confessions rule in Whittle, supra, and I need not repeat that exercise here. Briefly stated, Sopinka J. explained that the 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” (p. 936). I agree, and would simply add that, like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule. Indeed, in his reasons in Horvath, supra, at p. 408, Spence J. perceived the operating mind doctrine as but one application of the broader principle of voluntariness: statements are inadmissible if they are “not voluntary in the ordinary English sense of the word because they were induced by other circumstances such as existed in the present case”.
[59] The Crown need not prove that the accused was able to make a choice that was good or wise or one that was in his or her interest: R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914 at p. 936; R. v. EB, 2011 ONCA 194, [2011] O.J. No. 1042, at para. 91. The fact that a defendant was in a state of intoxication at the time he made a statement is relevant to a determination of whether the statement was the product of an operating mind, but it is not dispositive: R. v. Suppiah, 2021 ONSC 3349, [2021] O.J. No. 3049. In this case, all of the witnesses testified that Mr. Fenn was not impaired when he was arrested or had any difficulties following questions or directions. This is confirmed by the booking video, which shows no signs of impairment
[60] Amicus Curiae submits that the Crown has not proven that the accused had the requisite state of mind. She submitted that it is evident that Mr. Fenn was extremely tired and cold during the interview and that he was still recovering from the injuries he suffered the night before during his arrest and the aftereffects of having consumed cocaine and alcohol. I disagree.
[61] Mr. Fenn was clearly tired during the interview. He can be seen yawning at various times during the interview and it appears that he fell asleep when he was in the interview room alone while waiting for Officer Pillman to return with food. At one point when Officer Pillman momentarily exited the room, Mr. Fenn laid down for a few seconds on the ground. However, being tired does not mean he did not have an operating mind. Mr. Fenn was clearly able to answer the questions posed of him by officer Pillman. The interview took place in the morning, after Mr. Fenn had the opportunity to sleep in his cell. There is no indication at all from the video taped interview that Mr. Fenn did not understand what was happening.
[62] Mr. Fenn tucked his arms into his t-shirt at the outset of the interview. Officer Pillman testified that the room was not cold. In fact, it was warm. I do not know why Mr. Fenn placed his arms in his t-shirt in that manner. Perhaps he was cold, perhaps he found it comfortable and soothing. I do not know. However, having viewed the interview it is not an indication that he lacked an operating mind.
[63] I have already stated that I found that the force used by the police in arresting Mr. Fenn was reasonable and that Mr. Fenn was not subject to oppressive circumstances. However, I have considered whether there is any evidence that Mr. Fenn, even though I found that the arrest was appropriate, might still be concerned that he would be harmed if he did not speak to the police. I have also considered this possibility in conjunction with the fact that Mr. Fenn was recovering from the minor injuries he suffered upon arrest, that he did tell the police that he had consumed drugs and alcohol and he was tired during the interview. In my view, the videotaped interview overwhelmingly shows that Mr. Fenn had an operating mind when he spoke with Officer Pillman. Mr. Fenn did not talk to the police out of fear or because his faculties were impaired by drugs, alcohol, or injury. He talked to the police after being cautioned because he wanted to. Mr. Fenn’s exchanges with Officer Pillman demonstrate that he pushed back at a number of the officer’s suggested topics. I agree with the Crown’s submissions that Mr. Fenn spoke about what he wanted to speak about and didn’t speak about what he didn’t want to speak about. He wanted to discuss his cocaine psychosis but did not want to describe the details of the killings. Mr. Fenn asserted himself throughout the interview. The following are but a few examples:
When Officer Pillman was trying to make small talk by discussing trucks, Mr. Fenn stated, “No, I just like.. I know you’re trying to like talk and pick things that are relatable to me. I’m not trying to be an asshole, but like I’m not really in the mood right now.”;
When Officer Pillman asked him to describe the flashbacks, Mr. Fenn responded, “I don’t want to…what I just told you, I don’t wanna tell you, like I don’t --. At the end of the day that’s the story, and that’s what it is, its not me. Uh, why do you wanna remember flashback, why I wanna remember fl--…I don’t wanna remember shit.”;
When Officer Pillman suggested to him that he needed to focus on his kids and not the bad memories, Mr. Fenn responded “that’s lame, that’s cliché man.”;
When Officer Pillman commented that his kids would at least know that he took responsibility, Mr. Fenn stated, “Dad took responsibility and killed three people, yeah, you know sounds so fucking crap, you know, you know what I mean..”;
When asked about the dumbells beside the basement bed, Mr. Fenn, said, “Again, you’re asking some stupid shit now.” And;
When Officer Pillman asked him if Krissy said anything when he was choking her, Mr. Fenn responded, “Said nothing. And thanks for bringing that up.”
Conclusion
[64] I am satisfied beyond a reasonable doubt that Mr. Fenn’s statement to Officer Pillman on March 15, 2018 was voluntary.
Justice H. Leibovich
Released: January 21, 2022
OSHAWA COURT FILE NO.: CR-19-15006
DATE: 20220121
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CORY FENN
REASONS FOR RULING
Justice H. Leibovich
Released: January 21, 2022
[^1]: Different police witnesses have referred to this loft as a loft, ledge, rafters or shelf. For the sake of convenience, I will simply refer to it as a loft.