COURT FILE NO.: CR-22-018
DATE: 20220802
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GEORGE BRAZIER
Defendant
Indy Kandola and Susan Safar for the Crown
Anthony G. Bryant and Stephanie Marcade for Mr. Brazier
HEARD: June 27, 2022
ruling on voluntariness application
C. BOSWELL J.
[1] James Glover was last seen alive on March 23, 2020. His friend, Michelle McTamney, left him alone in his residence in Wasaga Beach at about 7:30 p.m. He died later that evening of a drug overdose.
[2] The police searched Mr. Glover’s cell phone. They found what they believe are text messages exchanged between Mr. Glover and Mr. Brazier on March 23, 2020. And they believe those text messages support the conclusion that Mr. Brazier trafficked heroin, fentanyl and cocaine to Mr. Glover on the date of his death. Indeed, the Crown posits that Mr. Glover’s death was the result of ingesting the drugs sold to him by Mr. Brazier.
[3] Mr. Brazier is charged with trafficking in cocaine, heroin and fentanyl and with manslaughter in relation to Mr. Glover’s death.
[4] Mr. Brazier was arrested by officers of the Nottawasaga OPP at about 2:18 p.m. on April 2, 2020. He was stopped while riding his bicycle on Mosley Street in Wasaga Beach. More particularly, he ran into the back of a police vehicle that had abruptly pulled in front of him and stopped as he rode down Mosley Street. He fell off his bike and suffered a cut above his right eye.
[5] Mr. Brazier was subsequently conveyed to a nearby police station where he received the attention of paramedics. After that he was strip searched, then provided with access to legal advice from duty counsel. At about 4:30 p.m. he was interviewed by Detective Constable Chris LeSage. The interview lasted about 35 minutes.
[6] The content of the interview is largely exculpatory. Mr. Brazier admitted to knowing Mr. Glover and to being with him on the date of his death. He denied, however, any suggestion that he was a drug trafficker or that he sold drugs to Mr. Glover.
[7] The Crown seeks a ruling on the admissibility of Mr. Brazier’s statement in the trial of the charges against him, which is set to commence on September 12, 2022. Mr. Brazier’s counsel oppose the admission of the statement. Whether the statement is admissible turns on the court’s assessment of its voluntariness.
THE VOLUNTARINESS RULE
[8] Some hard lessons have been learned over the history of the Canadian criminal justice system. One of them relates to the unfortunate fact that miscarriages of justice can and do occur as a result of false confessions. It is difficult to imagine, as a matter of logic and human experience, that someone would falsely confess to serious criminality. Experience shows, however, that it does happen.
[9] In an effort to guard against the risk of false confessions, the Supreme Court has crafted a confessions rule focused on voluntariness. The premise underlying the rule is that, while we cannot do much to hedge against the rare individual who voluntarily falsely confesses to a crime he did not commit, we can guard against abusive or oppressive conduct on the part of authorities that may produce an involuntary confession. Confessions that are not voluntary are inherently unreliable and, for that reason, inadmissible. Moreover, ensuring that confessions are voluntarily made supports the rights of the accused person and general fairness in the criminal process. See R. v. Oikle, 2000 SCC 38, at para. 69.
[10] Oikle remains the controlling authority with respect to the confessions rule in Canada. It provides that a confession made to a person in authority will not be admissible if it is made in circumstances that raise a reasonable doubt about its voluntariness.
[11] The focus on the voluntariness inquiry is largely on the conduct of the police and its impact on the accused person’s ability to exercise his or her free will. See R. v. Singh, 2007 SCC 48, at para. 36.
[12] In assessing the voluntariness of a statement made to a person in authority, the court must examine and evaluate all of the circumstances surrounding the making of the statement in a contextual manner including, but not limited to, a consideration of the following factors: threats; promises; oppression; the requirement of an operating mind; and police trickery. See Oikle, paras. 47-67. Before admitting the statement into evidence against an accused, the court must be satisfied that it was made “without fear of prejudice or hope of advantage and that it represents the product of an operating mind that has not been overborne by oppressive and inhumane circumstances or police trickery.” See R. v. Morgan, 2021 ONCA 531 at para. 14.
THE PRESENTING CIRCUMSTANCES
The Death of Mr. Glover
[13] In the early months of 2020, Mr. Glover was a 31-year-old male who lived with his parents in Wasaga Beach, Ontario. Mr. Glover had an opioid addiction. On February 11, 2020 he entered an in-patient rehabilitation program at Waypoint Centre for Mental Health in Penetanguishene. While there he formed a relationship with Michelle McTamney who was similarly engaged in an in-patient addiction rehabilitation program.
[14] On March 11, 2020 the World Health Organization declared the Covid-19 viral disease a global pandemic. Institutions struggled to come to grips with the health risks posed by the virus. The risk of infection was particularly acute in aggregate living facilities. Waypoint is such a facility. In an effort to reduce the risk of transmission, it arranged for the early discharge of a number of its in-patients. Both Mr. Glover and Ms. McTamney were discharged on March 23, 2020.
[15] Mr. Glover immediately relapsed. His first order of business appears to have been to purchase a case of beer at a nearby Beer Store. Later, on one or two occasions throughout the day, he purchased fentanyl and cocaine, which he ingested. He was last seen alive at about 7:30 p.m., by Ms. McTamney who left him at his parents’ residence about that time. His parents found him deceased the next morning.
[16] The police seized Mr. Glover’s cell phone and examined it. They located what they perceived to be text communications between Mr. Brazier and Mr. Glover involving drug transactions. They formed the opinion that Mr. Brazier had sold the drugs to Mr. Glover that caused his death.
The Arrest of Mr. Brazier
[17] The OPP Community Street Crime Unit took charge of the investigation. Acting Detective-Sergeant Gregory Lemke conducted a briefing with a number of officers at 9:00 a.m. on the morning of April 2, 2020. He outlined an operational plan that included arresting Mr. Brazier away from his residence and subsequently executing a search warrant at his residence, which was located on 31st Street in Wasaga Beach.
[18] A number of officers, including A/Det/Sgt. Lemke as well as Officers John Buligan, Ashely Hogg and Chris LeSage, conducted surveillance in Wasaga Beach following the briefing. Each of these officers testified during the voluntariness voir dire. What follows is a brief summary of their evidence.
[19] At roughly 2:00 p.m. in the afternoon, Mr. Brazier was observed in the location of a Swap Shop store. Officer Buligan testified that he observed Mr. Brazier leave the area of the store on a yellow bicycle and head east on Mosley Street. He called out Mr. Brazier’s location on his radio.
[20] Officer Lemke testified that he picked up Mr. Brazier’s trail on Mosley Street and made the decision to arrest him. He was driving an unmarked Chevy pick-up truck. He said he pulled his truck in front of Mr. Brazier on the side of the street, stopping in front of him and blocking his path. By his calculation, he stopped about 100 to 150 feet in front of Mr. Brazier.
[21] Officer Lemke testified that after he pulled in front of Mr. Brazier he heard something strike the back of the truck. When he exited the truck, he observed that there was a Tim Horton’s cup on the ground and that Mr. Brazier had spilled coffee on himself. He noticed a cut above Mr. Brazier’s right eye.
[22] Office Lemke said he asked Mr. Brazier if he was okay, then took him by the arm and told him he was under arrest. He said that Officers Hoff and LeSage arrived at roughly that same time.
[23] Officer Buligan had followed Mr. Brazier after observing him at the Swap Shop. He testified that he was following closely enough behind Officer Lemke that he saw Mr. Brazier collide with the truck. He said Mr. Brazier had a drink in his hand. Officer Lemke pulled in front of him about 50 metres ahead. He said Officer Lemke’s vehicle did not cut in front of Mr. Brazier on an angle, but was instead aligned with the road. In any event, Mr. Brazier was not able to stop in time and struck the back of the truck. He said Mr. Brazier’s bike dropped, but that Mr. Brazier did not fall down.
[24] Officer Buligan further testified that he took possession of Mr. Brazier’s bicycle. He observed that it had no back brakes. It had front brakes but they were very stiff and had to be squeezed very hard before the calipers came into contact with the wheel.
[25] Officer Hogg testified that she and Officer LeSage had been parked about three blocks from the arrest scene when they heard over the radio that Officer Lemke was going to effect a stop. The time was 2:14 p.m. They immediately travelled to the scene, as they had been tasked with completing the arrest.
[26] Each of Officers Hogg and LeSage testified that they did not observe Mr. Brazier strike the back of Officer Lemke’s truck. Each observed a cut above Mr. Brazier’s right eye. One of them arranged for paramedics to meet them at the station to attend to Mr. Brazier.
[27] Officer Hogg said they took custody of Mr. Brazier as soon as they arrived on scene. They immediately transported him to a nearby station, which was about four kilometres away. She said there was no conversation between them and Mr. Brazier during transport. EMS met them at the station and attended to Mr. Brazier.
[28] She subsequently monitored Officer LeSage’s interview of Mr. Brazier.
[29] Officer LeSage testified that he is the one who actually arrested Mr. Brazier and handcuffed him to the rear. He advised him that he was arrested for possession of a substance for the purpose of trafficking. He and Officer Hogg transported Mr. Brazier to a nearby police detachment where Mr. Brazier was attended to briefly by EMS personnel. He and another officer strip searched Mr. Brazier and then he facilitated Mr. Brazier’s consultation with his lawyer of choice, Brian McLellan. He said he personally spoke to Mr. McLellan and advised him that Mr. Brazier had been arrested for possession of a substance for the purpose of trafficking. He said that he also mentioned the possibility of a future manslaughter charge.
[30] Gilles Dorian is the officer who assisted with the strip search of Mr. Brazier. He testified that, while he was not present at the arrest scene, he did assist Officers Hogg and LeSage with Mr. Brazier when they arrived at the station. He said his first contact with Mr. Brazier was at 2:27 p.m. He observed Officer LeSage read Mr. Brazier his right to counsel and caution at 2:36 p.m. He then assisted with a strip search in a private washroom.
[31] According to Officer Dorion, he contacted Mr. Brazier’s counsel, Mr. McLellan at some point during the intake process. He said Mr. McLellan told him to have Mr. Brazier call him back once he was finished with the lodging procedure. The second call to counsel occurred, he said, at 2:58 p.m. and concluded at 3:08 p.m.
[32] Each of the officers who testified said that he or she did not make any threats or promises to Mr. Brazier and did not see any other officer do so. Each said that Mr. Brazier was sober and co-operative during all of their interactions with him.
[33] No formal record – by audio or video recording – exists of the interactions between the police and Mr. Brazier prior to the commencement of his formal interrogation. Defence counsel confirmed with the officers who testified during the voir dire, that the OPP did not have dash cams in use in their vehicles, nor were they wearing body cams. Officer Hogg testified that they did not use audio recording in their vehicles when transporting detainees to the police station.
[34] At the police station there were cameras in the intake and cells areas, but not audio recordings. The video recording of the cells area no longer exists. The OPP have a one-year retention policy. The video was not requested within that one-year period and was destroyed.
The Statement
[35] Officer LeSage commenced his interview of Mr. Brazier at 4:27 p.m. The interview was audio and video recorded. It was completed at 5:02 p.m.
[36] As the interview began, Mr. Brazier confirmed that he had exercised an opportunity to speak with his lawyer. Officer LeSage then cautioned him that he may yet be charged with manslaughter and that he need not say anything if he did not wish to.
[37] A moment later, Officer LeSage said the following:
Okay so that said, I wanted to talk to you about the drug side of it cuz downstairs when we were talking you you mentioned to me that you are a user of drugs. Is that fair?
[38] To the extent that there was a conversation between Mr. Brazier and Officer LeSage “downstairs” it was not audio or video recorded.
[39] Office LeSage was asked about this unrecorded conversation under cross-examination. He testified that after being lodged in, Mr. Brazier, who was sitting on a bench at the time, uttered that he uses “purple heroin”. This utterance, according to Officer LeSage’s notes, occurred at 3:09 p.m. He went on to say that consumption of drugs is part of the lodging form they fill out, so he thought perhaps Mr. Brazier’s utterance about purple heroin was part of that discussion.
[40] At any rate, as the interview went on, Officer LeSage asked Mr. Brazier whether he knew James Glover. He said he did not, though later realized that he did. Indeed, he later described his relationship with Mr. Glover as being “friends”. He confirmed that he had Mr. Glover’s phone number as a contact in his phone. He also said that he and Mr. Glover were together on March 23, 2020. Specifically, at Mr. Glover’s request, he and a friend named Martin picked up Mr. Glover and a female and drove them to a bank. Mr. Glover, he said, wanted to get some “weed”.
[41] Mr. Brazier described his interaction with Mr. Glover on March 23, 2020 more specifically in the following terms:
…picked him up…went to the bank…smoked a joint along the way…he got some money and then we smoked a joint, had a little conversation whatever then we went home.
[42] According to Mr. Brazier, he and Mr. Glover had once smoked some marijuana together that was particularly good and they called it “purple Gatorade”. Though his statement is a little unclear, it appears to me that he was saying that Mr. Glover wanted to get some purple Gatorade – meaning marijuana – on the occasion in issue.
[43] Mr. Brazier denied selling drugs generally and he denied selling drugs to Mr. Glover. He said Mr. Glover “does call me and ask for stuff but it’s no.” Mr. Glover, he said, “asks everybody” for drugs.
THE PARTIES’ POSITIONS
[44] From the Crown’s point of view, the statement was impeccable. There were no threats, promises or quid pro quos. There was no police trickery used. The circumstances prior to and during the taking of the statement were not oppressive in any way. There is no reason to be concerned about the voluntariness of the statement.
[45] The Crown submits that the video recording of the statement demonstrates clearly that Mr. Brazier was comfortable and engaging in dialogue with Officer LeSage. He chose what he wanted to respond to and what he did not want to respond to. For instance, he refused to answer where he acquired purple fentanyl for his own use, despite confirming that he is a drug user himself.
[46] Defence counsel concede that during the actual taking of the statement there were no overt threats, promises or inducements offered.
[47] Where the Crown’s application falls short, the defence submits, is in the absence of an acceptable record of all of the interactions between police officers and Mr. Brazier from the time of his arrest, through the transport to the station and during the period in which he was booked in. It is clear that the conversation with Mr. Brazier began before the formal videotaped interview.
[48] In the position of the defence, the failure of the police to audio or video record Mr. Brazier from the time of his arrival at the police station to the time of his statement is “stunning” and is fatal to the Crown’s application.
[49] The impact of the failure of the police to adequately account for their interactions with a detainee was, the defence submits, addressed by the Court of Appeal in R. v. Moore-McFarlane, 2001 CanLII 6363 (ON CA), [2001] O.J. No. 4646. There, Justice Charron made a number of observations, including:
(a) The Crown bears the onus of establishing a sufficient record of the interaction between the police and the accused;
(b) The Crown bears a heavy onus to establish voluntariness beyond a reasonable doubt; and,
(c) Where the accused is in custody and recording facilities are readily available, the failure to record interactions with the accused inevitably makes those interactions suspect.
[50] In the submission of the defence, the Crown’s failure to produce a complete, accurate and reliable recording of the whole of the interactions between the police and Mr. Brazier renders it impossible for the Crown to discharge its heavy onus of proving vountariness beyond a reasonable doubt.
[51] In addition, the defence points to the incident involving the arrest and its violent nature. Mr. Brazier was clearly injured. But the extent of his injuries cannot be readily assessed because the police failed to record their interactions with him at the time of his arrest. This failure leaves open the reasonable possibility that Mr. Brazier did not have an operating mind due to his injury. Moreover, the nature and circumstances of the unnecessarily violent arrest of Mr. Brazier tend to undermine both the credibility and reliability of the testimony of the officers involved in the arrest and the assertion that there were no oppressive circumstances present.
[52] The Crown made a number of submissions in response to the defence position. First, they confirmed that the OPP do video record the booking area when accused persons are lodged into the station. They agree, however, that there is no audio recording. Second, they note that there is no requirement in law to have every interaction between the police and an accused person video or audio recorded. Third, they submit that neither a body cam nor a dash cam would have assisted in this case because neither would have captured Mr. Brazier’s collision with the back of Officer Lemke’s vehicle. Fourth, the court has a full record of the oral testimony of all of the officers who interacted with Mr. Brazier on the date in question. The court has a sufficient record, in the Crown’s view, to make a determination that Mr. Brazier’s statement was voluntary beyond a reasonable doubt.
DISCUSSION
[53] I will begin my assessment of the voluntariness issue with some of the less contentious matters.
[54] I note, at the outset, that the statement is largely exculpatory. It is not what one might consider a classic confession in the sense that it does not contain an admission of culpability. That said, there are parts of the statement that are of significant interest to the Crown. The voluntariness rule applies broadly to any statement made by an accused to a person in authority, not just classic confessions.
[55] There is no dispute that Mr. Brazier’s right to counsel was respected, in both its informational and implementational aspects. He had an opportunity to speak to counsel prior to his formal interrogation. He was aware of his jeopardy at the time he made the statement in issue and had been cautioned that he need not make any statement at all.
[56] The interview conducted by Office Lesage was, at 35 minutes, relatively short. And it took place relatively quickly after Mr. Brazier was lodged into the station. Mr. Brazier did not spend hours upon hours awake and stressed in a holding cell pending the statement. And he was not subjected to excruciatingly long or repetitive questioning.
[57] The interview was conducted in a conversational style. I observed no aggression on Officer LeSage’s part. He appears to have been polite and professional.
[58] Mr. Brazier appears to be in good health and comfortable throughout the course of the interview. Moreover, he clearly made his own decisions about which questions he was prepared to answer and which he was not. There is no evidence that he was not working with an operating mind.
[59] I observed no threats or promises being made by Officer LeSage. There was no quid pro quo offered in exchange for a confession. At one point, in the early going of the statement, Officer LeSage did suggest that Mr. Brazier would probably go home after this statement. Mr. Brazier had expressed some concern about who was going to take care of his dogs. Officer LeSage replied:
Well you’ll probably home (sic) to see them I would assume….I can’t say for sure but I would, I’m going to bet you’re probably going to go home and see them…
[60] The comment by Officer LeSage about the likelihood of Mr. Brazier going home was not put to him as a promise or an offer for release in exchange for any particular statement. It was just Officer Brazier expressing an opinion. It did not, in my view, rise to a level of concern that anything said by Mr. Brazier in the interview was the product of a hope for advantageous treatment in terms of release.
[61] Mr. Brazier generally accepts that the recorded interview was not problematic. The thrust of the defence position is that the Crown is unable to establish, to the reasonable doubt standard, that there were no threats, promises or oppressive circumstances in the pre-interview interactions between the police and Mr. Brazier because the police failed to record any of those interactions.
[62] The defence argument is pillared on the reasoning expressed by the Court of Appeal in R. v. Moore-McFarlane, as above. The circumstances of that case are worth taking a moment to describe.
[63] Gregory McFarlane and Paul Bogel were arrested by Toronto Police in relation to a robbery of a convenience store on March 26, 1997. Both were young males. McFarlane testified on the voluntariness voir dire and denied any involvement in the robbery. He said that he was in the vicinity of the robbery location waiting for his girlfriend when he was approached by a police officer. That officer drove him some distance from that location and then arrested him. He said that an officer struck him in the jaw with a walkie-talkie during the drive to the police station, while interrogating him about who else was involved in the robbery. He went on to describe being strip searched at the station and then left naked while the police interviewed him. He said that when he told the police he did not know anything, he was punched repeatedly in the face. According to him, the officers continued to hit him and feed him lines to say by way of a confession, which he eventually said. He said his statement was not true and he only said it so he could go home.
[64] A number of police officers testified on the voir dire. I will present a compilation of their evidence. They said that McFarlane was arrested while running away from the scene of the robbery. He was conveyed to the police station. There was no conversation with him during the ride in the car. He was strip searched at the station but given at least his underwear and socks back. He was interrogated for about 30 minutes before they decided to obtain a tape recorder and record the interview. During that 30 minutes, he was purportedly asked what happened and he purportedly answered that he was the lookout person on the robbery and had run from the scene and got caught.
[65] Bogel was also arrested on the night of the robbery. He was tackled and a struggle ensued during which he was pepper sprayed.
[66] Bogel also testified on the voir dire. He said he was in significant pain when he was placed into the police car. An officer asked him about the robbery and when he replied, “what robbery” he was backhanded across the chin and told, “Don’t get smart with me.” He said he repeatedly asked to speak to his lawyer and was denied that opportunity.
[67] Bogel was interviewed by two detectives from the hold-up squad. They did not record the interview. They testified that Bogel was asked if he wanted to make a statement and responded, “You got us and the gun. I’m fucked. You know what you need to know. I’m not giving a statement.”
[68] Bogel denied making the purported, or any, statement to the police.
[69] The trial judge ruled that both McFarlane’s and Bogel’s statements were made voluntarily. That finding was set aside on appeal. Justice Charron wrote the decision for the unanimous court. She observed that the court had been asked to find that there was both a common law and constitutional obligation on the police to create a record, preferably by videotape of all custodial interactions between the police and detainees. The court demurred, holding that there is no absolute rule requiring the recording of statements. She noted that the Supreme Court instructed in Oikle that the inquiry into voluntariness is contextual in nature and that all relevant circumstances must be considered. See Moore-McFarlane, paras. 61-64.
[70] Having said that, Justice Charron cautioned that “the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police.” She went on to say, at para. 65:
That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.
[71] The Court of Appeal set aside the voluntariness rulings of the trial judge and ordered a new trial. There were a number of identified procedural errors that supported the appellate decision. In addition, Justice Charron identified the following problems, amongst others:
(a) McFarlane alleged that he was beaten with a walkie talkie during transport. The police denied any acts of violence or conversation in the cruiser, but, as she put it, they “presented a very casual and poor recording of the events between the time of arrest…and the appellant’s booking close to one and one-half hours later”;
(b) Serious inconsistencies in the officers’ testimony about McFarlane’s state of dress during the interview and the vagueness of their testimony raised serious credibility issues about that testimony and about whether McFarlane had been subjected to oppressive conditions; and,
(c) Bogel’s evidence that he repeatedly asked to speak to a lawyer was not addressed by the trial judge.
[72] Mr. Brazier’s counsel urge the court to apply the reasoning from Moore-McFarlane to the circumstances of this case and to reach the conclusion that the Crown has failed to satisfied the heavy burden of establishing voluntariness to the reasonable doubt standard. They argue that the police utterly failed to properly record their interactions with Mr. Brazier from arrest to interview, which leaves an all-but empty record of a number of important transactions. Those transactions include the injury suffered by Mr. Brazier; any discussions that may have occurred in the police car in transit; the interaction between Mr. Brazier and EMS personnel; the booking process; and in particular, the discussion that took place between Officer LeSage and Mr. Brazier which included an indication that he uses purple heroin.
[73] The defence argument is that the time has come when recording equipment, such as dash cams, body cams and in-car audio and video recording is readily available and ought to be utilized by the police to record all of their interactions with persons in custody.
[74] I confess to finding some appeal to the defence position. Dash cams, body cams and in-car recording equipment certainly exist. I think it would likely reduce litigation should that sort of recording equipment routinely be used. It would certainly make the court’s job a little easier.
[75] But of course the applicable test is not what circumstances might make the court’s workload the lightest possible.
[76] The test is whether I am satisfied, in the context of all of the prevailing circumstances, that the statement in issue was made voluntarily. And in the circumstances of this case, I am. I have reached that conclusion for five reasons:
(i) I find this case to be distinguishable from Moore-McFarlane;
(ii) I found the testimony of the police officers who testified to be credible and reliable;
(iii) There are no suspicious circumstances present;
(iv) The police have no common law or statutory duty to audio and/or video record all of their interactions with detainees; and,
(v) There is no evidence that Mr. Brazier’s eye injury affected his operating mind or, more generally, his willingness to speak to the police.
[77] I will elaborate on each of these reasons.
(i) This case is distinguishable from Moore-McFarlane
[78] In my view, this case is distinguishable from Moore-McFarlane. Notably, Mr. Brazier elected not to testify on the voir dire, as was his right. The upshot, however, is that the only testimony I have to consider is that of the attending police officers. I do not have evidence, as the court did in Moore-McFarlane, to suggest that the police engaged in physical abuse, intimidation and other oppressive conduct. I have only the testimony of the police officers who said none of that type of conduct was engaged in. In this sense, this case is similar to R. v. Williams, 2021 ONSC 5497 where Trimble J. distinguished Moore-McFarlane on this same basis.
[79] In Williams, the accused took a position similar to that of Mr. Brazier. He argued, on a voluntariness voir dire, that the Crown could not meet the high standard of proof required to establish voluntariness beyond a reasonable doubt where they did not have any recording of dealings with Mr. Williams before he was placed in an interview room. He relied on Moore-McFarlane in support of his position.
[80] Trimble J. noted that, unlike Moore-McFarlane, where the accused had testified on the voir dire, he had only the evidence of the arresting officer. He found her credible and, in the end, had no difficulty finding that the voluntariness of the accused’s statement had been proven to the reasonable doubt standard based on her evidence as to what had transpired before the videotaped statement of the accused began. Similarly, I find the testimony of the officers who gave evidence on the voir dire to have been sufficiently credible and reliable to support the admission of Mr. Brazier’s statement.
(ii) The officers were credible and reliable
[81] I have no compelling reason to reject the testimony of the officers who testified, all of whom stated that Mr. Brazier was calm and co-operative throughout and that he was not subjected to any threats or intimidation, nor made any promises for any kind of reward in exchange for a confession. I have no compelling reason to reject the evidence that Mr. Brazier did not make any utterances of any consequence during his arrest and transport to the station.
[82] Arguably, the area of greatest concern arising from the lack of audio or video recording arises from the unrecorded discussion between Mr. Brazier and Officer LeSage. I am referring now to the discussion where Mr. Brazier uttered that he uses purple heroin. On this issue and others, I found Officer LeSage’s testimony to be credible. It was consistent with other officers who interacted with Mr. Brazier, including Officers Hogg and Doiron. His testimony about his interactions with Mr. Brazier prior to the recorded interview is also consistent with the manner in which he appears to have conducted himself during the recorded interview. I have no concern that Mr. Brazier was mistreated in any way at any time. I accept Officer LeSage’s testimony that Mr. Brazier’s utterance – that he uses purple heroin himself – likely occurred during the booking process. It was, in any event, not an inculpatory utterance and, moreover, was essentially repeated during the recorded interview. I have no evidence that it was part of a broader, unrecorded discussion.
[83] Defence counsel argued that the nature of the roadside stop somehow undermines the credibility of the officers who testified. I do not see it that way. No one denied that the collision between bike and pick-up truck occurred. It is obvious that it occurred because Officer Lemke stopped too close in front of Mr. Brazier for him to be able to stop his bike in time. I am not, however, in a position to determine whether the collision was caused by Officer Lemke pulling too close in front of Mr. Brazier, or by the ineffective brakes on Mr. Brazier’s bike, or by the fact that Mr. Brazier was attempting to operate a bike while simultaneously enjoying a beverage, or a combination of those factors. I am satisfied that the collision was unintentional. No attempt was made to cover it up or whitewash it. I find it to be a non-factor in terms of my assessment of the credibility and reliability of the officers’ testimony.
[84] On the basis of the officers’ credible, reliable and uncontradicted evidence, I am satisfied that Mr. Brazier was not threatened, offered any quid pro quo in exchange for a statement or subjected to oppressive circumstances of any sort.
(iii) The absence of suspicious circumstances
[85] Unlike Moore-McFarlane, there are no circumstances present here that raise any suspicion that anything untoward occurred during any of the interactions between Mr. Brazier and the police.
[86] This is not a case, like Moore-McFarlane, where the police simply declined or refused to use equipment that was readily available to them. The police did not have readily available to them, dash cams, body cams, or even in-car audio or video recording equipment.
[87] This is also not a case where the police intentionally turned off equipment in order to avoid creating a record.
[88] Finally, there is no evidence that the police at any time deliberately set out to take a statement from Mr. Brazier during their interactions prior to 4:27 p.m. without making a proper record of that statement.
(iv) There is no legal requirement to record all interactions
[89] If I had my druthers, every interaction between the police and detainees would be recorded. The booking area, in particular, would be both audio and video recorded in my best case scenario. In my experience, detainees are frequently asked, during that process, to confirm that they have been advised of their right to counsel and cautioned. It is of some value to have that confirmation recorded. Moreover, it is not uncommon for detainees to make utterances during that process, spontaneous or otherwise. Again, there is some real value to having a reliable record of any such utterances.
[90] That said, the Court of Appeal has recently confirmed that there is “no rule that, when evidence comes from oral testimony of police officers, it must be corroborated by other evidence such as an ASD (approved screening device), police bodycam footage, or civilian testimony.” See R. v. Chandrasegaran, 2022 ONCA 241 at para. 30.
[91] In other words, the absence of video or audio recordings is not fatal to this application, provided I am satisfied, to the reasonable doubt standard, that Mr. Brazier’s statement was made voluntarily, based on the oral testimony offered by the police officers who transacted with Mr. Brazier. I am so satisfied.
[92] The OPP has not yet seen fit to outfit its officers with body cams or, evidently, to install audio and/or video recording equipment in its vehicles. Perhaps the day will come when such equipment is so ubiquitous that a failure to utilize it renders the interactions between the police and detainee suspect. But in my view, we are not yet at that stage. I do not consider it appropriate to my role to dictate policy for the police in terms of the equipment that officers ought to be outfitted with.
(v) Mr. Brazier’s injury was non-consequential
[93] I will comment briefly on the interaction that resulted in Mr. Brazier striking the back of Officer Lemke’s police vehicle. I note the obvious – this is a voluntariness application. The focus must therefore be on whether the collision between bike and vehicle somehow impacted on the voluntariness of Mr. Brazier’s statement. I find that it did not.
[94] I have already indicated my view that the collision was unintentional and I have noted that I am not in a position to apportion liability for the collision on the record before the court. I am, in any event, satisfied that Mr. Brazier’s injury – the cut above his eye – was minor. The police saw to it that he received prompt medical attention for that injury. It required nothing more than cleaning and a bandage. I am satisfied that it had no impact on his “operating mind” and played no role in his decision to provide a statement to the police.
[95] In the result, in all the circumstances, I am satisfied, beyond a reasonable doubt, that Mr. Brazier’s statement was made without fear or prejudice or hope of advantage. It was an expression of the operation of his free will. It was the product of an operating mind that was not overborne by oppression or trickery. His statement was voluntarily given and is admissible in evidence.
C. Boswell J.
Released: August 2, 2022