COURT FILE NO.: 8532/21 DATE: 2023-02-14

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING W. Trent Wilson, Counsel for the Crown

• and -

MICHAEL JAMES MORRIS Eric McCooeye , Counsel for the Accused

Accused

HEARD: February 6 and 7, 2023

gareau j.

Reasons on Voir Dire

[1] The accused, Michael James Morris, is charged with offences under section 271, 151 and 152 of the Criminal Code of Canada. The accused has elected trial by judge and jury, and his trial is scheduled to commence on April 17, 2023.

[2] On July 9, 2020, the accused was arrested. On that date the accused gave a statement to Sgt. Liane Hebner of the Ontario Provincial Police, a person in authority. The statement was video and audio recorded. The statement itself is exculpatory. The allegations which are before the court were squarely put to the accused who denied each and every allegation.

[3] The Crown seeks to use the statement of the accused in cross-examination should the accused testify at the trial. The defence opposes this request. The issue on the voir dire is whether the statement was voluntary.

[4] It is not necessary for the court to review in detail all the evidence called on the voir dire. The Crown called Ontario Provincial Police officers Jeffrey Lobsinger, Jason Cooke, Julie Brisson, Christopher Pritchard, and Liane Hebner. The accused Michael Morris testified on the voir dire.

[5] Officers Lobsinger, Cooke and Brisson described events of July 8, 2020 when the investigation against Mr. Morris began, efforts to have him attend at the OPP detachment in Thessalon and Mr. Morris’ arrest at his home at 13 Lorne Street, Bruce Mines, Ontario on July 9, 2020. Issues surrounding the obtaining of a warrant, the delay from providing rights to counsel and his consumption of alcohol were collateral matters which the officers testified about and were cross-examined on but are not in play on the issue of whether the statement provided by Mr. Morris was voluntary or not.

[6] The officers who gave evidence on the voir dire were asked whether any promises, inducement or threats were made to the accused Michael Morris and they all testified that none were made and none were overheard by them. The court heard evidence about it being cold in Mr. Morris’ cell and about him being cold when he gave his statement to the police. The court also heard evidence about whether Mr. Morris had consumed alcohol the day prior to his giving his statement or the day that he gave his statement. Officer Lobsinger testified that he was aware that Mr. Morris had been drinking on July 8, 2020, and that is why he was not asked to come to the station that day. The other officers that gave evidence testified that they did not observe Mr. Morris to be under the influence of alcohol in their interactions with him on July 9, 2020. Mr. Morris testified that he had four or five beer and smoked weed on the morning of July 8, 2020 prior to his arrest at 12:15 p.m. The observations made in the audio/video statement conducted from 3:12 to 4:28 p.m. on July 8, 2020 do not indicate that Mr. Morris is exhibiting signs of being under the influence of alcohol during his interaction with Sgt. Liane Hebner. The conditions in the cell or the interview room where Mr. Morris was or his level of sobriety do not raise concerns with the court that his statement would be unreliable or that his will was overborne.

[7] It is trite law that a statement by an accused to a person in authority is not admissible unless it is proven to be voluntary. The burden of proving a statement to be voluntary lies with the Crown, the test being that proof must be beyond a reasonable doubt. The rules concerning statements to persons in authority is an attempt to balance competing interests, that is, protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes.

[8] As noted in R. v. Oickle, 2000 SCC 38, the court should pay careful attention to the following factors in assessing whether a confession is voluntary:

(a) Any promises, threats, inducements made or offered; (b) Whether the statement was given in an atmosphere of oppression; (c) Whether the accused had an operating mind; (d) Whether the police used trickery of a sort that would shock the conscience of the community.

[9] In the case at bar, there is no suggestion of trickery employed by the police and therefore this factor need not be considered by this court. Similarly, it is not being suggested that the statement given by Michael Morris was given in an atmosphere of oppression or that Mr. Morris did not have an operating mind when he gave the statement to Sgt. Hebner of the Ontario Provincial Police. The crux of the matter is whether any promises, threats or inducement were made or offered to Michael Morris to get him to make the exculpatory statement that he provided to the Ontario Provincial Police.

[10] As to promises, threats or inducements made or offered, the court must keep in mind the comments of the Supreme Court in Oickle, where at para. 57 it noted,

In summary, courts must remember that the police may often offer some kind of inducements to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interest to confess. This becomes improper only when the inducements, whether standing alone or in a combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne . [Emphasis added.]

[11] At the time of his arrest at his home, his mother, female partner, and his young child were at the home. The mother and partner of Mr. Morris spoke with and interacted with the police. There is no doubt that Michael Morris wishes to go home to be with his family. As Mr. Morris said while alone in the interview room at the end of his statement to police, “What am I supposed to do here? I just want to go home. Please. Just want to go home.”

[12] It was the evidence of the accused Michael Morris that Sgt. Liane Hebner escorted him from his cell to the interview room on July 9, 2020. It was the evidence of Michael Morris that on the walk from his cell to the interview room that Sgt. Hebner told him that if he wanted to go home and see his son that he would have to talk to her, otherwise he would be transported to Sault Ste. Marie. Mr. Morris testified that at that point he felt that he had no choice but to talk to Sgt. Hebner because he had to go home to see his son. Mr. Morris testified that the only reason that he went to the interview room to talk to Sgt. Hebner was to be able to go home to see his son. As far as Mr. Morris was concerned it was either talk to Sgt. Hebner and see his son or not talk and be transported to Sault Ste. Marie away from his son.

[13] In her evidence, Sgt. Liane Hebner testified in examination in-chief that she was at the scene when Michael Morris was arrested but was not involved in arresting him. Her role was to ensure that Mr. Morris’ family was safe and that they were not involved in the arrest. It was the evidence of Sgt. Hebner that she could not hear the conversations between the accused and officers Brisson and Cooke at the time he was arrested. Sgt. Hebner testified that she could not recall what she said to Mr. Morris on the way from the cell to the interview room. Sgt. Hebner did testify that she made no threats to Mr. Morris and that she offered him no inducements or promises with respect to making a statement to the Ontario Provincial Police. In cross-examination, it was directly put to Sgt. Hebner that she said to Mr. Morris that if he didn’t cooperate he would not see his child or if he didn’t cooperate he would be taken to Sault Ste. Marie. Sgt. Hebner denied making these statements to Mr. Morris and indicated that any suggestion that these statements were made was simply “not true”. It was Sgt. Hebner’s evidence that she had no conversation with the accused Michael Morris about his child or about going to Sault Ste. Marie other than those conversations capture in the recorded interview of Mr. Morris.

[14] Clearly, the evidence of Sgt. Liane Hebner conflicts with the evidence of Michael Morris. If the evidence of Michael Morris is believed by the court or if it raises a reasonable doubt, the Crown concedes that the inducement or promise is sufficient to call into question the voluntariness of the statement made by Michael Morris to the Ontario Provincial Police.

[15] The court has to closely consider the evidence of Michael Morris and the evidence of Sgt. Liane Hebner. I did not find the evidence of the accused Michael Morris convincing. He provided his evidence in an agitated and aggressive manner. His voice was elevated during most of the evidence he gave to the court. At one point during cross-examination, the court had to recess to allow Mr. Morris to calm down. The impression that the court was left with from Mr. Morris’ evidence is that he had an axe to grind with the Ontario Provincial Police and an agenda to advance in painting them in the worst light possible. At one point in his evidence in-chief Mr. Morris testified that the East Algoma OPP harass him and that “you can’t trust the East Algoma OPP”. This theme was repeated in cross-examination where Mr. Morris indicated that he was not treated fairly in Thessalon by the OPP and that Sgt. Hebner’s statement to him about talking if he wanted to see his son showed “how crooked these OPP officers are”.

[16] In cross-examination Michael Morris testified that at the time of his arrest he was told only that he was being arrested for assault and that he was not told that he was being arrested for sexual assault. This is in direct conflict with the evidence given by Constable Julie Brisson who testified that the accused was told at his residence when he was arrested that he was being charged with sexual assault times five, sexual interference times five, and invitation to sexual touching times two. There is reference to this in the notes made by Constable Brisson. In his evidence, Mr. Morris testified that when he talked to his legal counsel at 2:15 p.m. he did not know what he was being charged with. The court knows that this is not so from the audio taped interaction that Mr. Morris had with Sgt. Chris Pritchard at 12:52 p.m. wherein Sgt. Pritchard tells Mr. Morris about the charges and discloses the name of the complainant to him (Exhibit 2). It is fair to say that if we did not have the audio recording of the interaction between Sgt. Pritchard and Mr. Morris, (Exhibit 2), the accused’s evidence would be that he didn’t know the charges he was facing or who the complainant was at the time he spoke to his legal counsel at 2:15 p.m. on July 9, 2020. The court knows from Exhibit 2, which confirms the evidence of Sgt. Pritchard, that Mr. Morris’ evidence on this point cannot be relied upon by the court.

[17] The evidence of Michael Morris about the promise and inducement made to him by Sgt. Hebner to get him to make a statement is not believed by the court nor does the evidence of Michael Morris raise a reasonable doubt about the voluntariness of the statement made by Michael Morris to the Ontario Provincial Police on July 9, 2020. The court prefers the evidence of Sgt. Liane Hebner on this point. Sgt. Hebner gave her evidence to the court in a thoughtful, precise, and professional manner. There is no basis for the court not to accept Sgt. Hebner’s evidence. She was not reckless with the truth. The same cannot be said about Michael Morris.

[18] The statement provided by Michael Morris has a very limited use by the Crown. It is an exculpatory statement. Much of the discussion between Mr. Morris and Sgt. Hebner has to be shielded from the jury, such as previous criminal charges and similarities between those previous charges and the charges that Mr. Morris now faces. Despite its limited purpose, on the evidence before me, I am satisfied beyond a reasonable doubt that the statement made by Michael Morris to Sgt. Liane Hebner on July 9, 2020 was made voluntarily and can be used by the Crown in the cross-examination of Michael Morris if he chooses to testify at his trial.

Gareau J.

Released: February 14, 2023

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – MICHAEL JAMES MORRIS REASONS on voir dire Gareau J.

Released: February 14, 2023