COURT FILE NO.: CR-22-70
DATE: 20230221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
Applicant
– and –
Christopher Iannacchino
Respondent
Kristine Staats and Rebecca Watson, for the Applicant
Self Represented, for the Respondent,
Chris Murphy, Amicus Curiae
Heard: January 9, 10, 11, 2023
leibovich J.
[1] Mr. Iannacchino is charged with the second-degree murder of his mother, Claudia Anna Ricci. Ms. Ricci was killed at her house on January 26, 2021. The accused was arrested at 4:16 am on January 26th and taken into custody. He provided a statement to the police later that morning at 11:30 a.m. Mr. Iannacchino has schizophrenia. On August 26, 2021, he was found unfit to stand trial at the Ontario Court of Justice. Mr. Iannacchino was placed on a treatment order, but by October 25, 2021, he was still not fit. The treatment order continued, and the accused was ultimately found fit to stand trial on November 24, 2021. On March 23, 2022, the Ontario Court of Justice made another assessment order and Mr. Iannacchino was found fit on March 31, 2022. Mr. Iannacchino has remained on a keep-fit order since.
[2] Mr. Iannacchino is self-represented. Mr. Murphy has been appointed Amicus Curiae. The Crown seeks to have Mr. Iannacchino’s statement to the police admitted at trial. A voir dire was held from January 9-11, 2023. At that voir dire, Mr. Iannacchino was given the opportunity to cross-examine the Crown witnesses, call evidence and make submissions. He declined that opportunity. Mr. Murphy did cross-examine the Crown witnesses and he did make submissions. The issue is whether the Crown has proven beyond a reasonable doubt that the statement was given voluntarily and the main issue in that regard is whether Mr. Iannacchino had at the time an operating mind.
Mr. Iannacchino’s arrest
[3] On January 26, 2021, the police received a call in the early morning hours to attend the victim’s residence. The fire department and emergency medical services were also on scene. Officers Poirier, Lalonde, Lascelles and Taverner testified at the motion hearing and described the scene, as well as their interaction and arrest of Mr. Iannacchino.
[4] Officer Poirier testified that she arrived at 3:21 a.m. She was the first officer on scene. Efforts were being made to save the victim; she had a severe head injury. There was a lot of blood in the house. Blood could be seen on the light switch and the door lock. There were bloody footprints. Mike Iannacchino, the accused’s brother, was at the front of the house. Officer Poirier spoke to him and was trying to keep him calm.
[5] Officer Poirier searched the backyard with Officers Lascelles and Taverner. They were trying to find the accused as they understood that he lived at the house with the victim. Officer Poirier heard a commotion at the front of the house. She saw Mike Iannacchino and his other brother Alex, who had arrived, motioning to the east of the house. It was the accused. Officer Poirier knew that he suffered from schizophrenia and believed that he was responsible for his mother’s death. At that point, she did not know how the victim’s injuries were caused. She was with Officers Lalonde, Taverner and Lascelles. Officer Poirier, Lalonde and Taverner drew their firearms while Lasscelles drew his taser.
[6] Officer Poirier testified that she told the accused “don’t move” and to put his palms out facing her. The officers were quickly making demands and the accused was complying. She did not recall the exact words that were said but he got on his knees, he was lying facing down. His hands were tucked in his sleeves, and she handcuffed the accused.
[7] Officer Poirier testified that she advised him that he was under arrest for homicide. The time of arrest was 4:16 a.m. The accused did not respond. She saw that there was a red substance, dried on his earlobe. She asked him if he had anything on his person that could hurt himself or her. The accused responded that, “the knife is in the cupboard beside her.” The accused was still on the ground. He spoke under his breath, but it was inaudible.
[8] The accused was then escorted to Officer Taverner’s cruiser. Officer Poirier testified that this completed her interactions with the accused. She described him as compliant and co-operative, and he appeared to understand what she was saying. He did not smell of alcohol.
[9] Officer Poirier was cross-examined by Amicus regarding why she did not provide Mr. Iannacchino with his rights to counsel. She explained that the arrest process was not completed, there was a lot of commotion, and even though he was handcuffed, she was still concerned. She did not conduct a pat down search because it is preferred that it be done by a male officer. She testified that she had safety concerns and she knew that the rights to counsel would be given shortly. She also believed that it would be quieter in the cruiser.[^1]
[10] Officer Lascelles testified that he saw the accused walking towards the house. He had blood on his pants and blood on his shirt. Officer Lascelles was unsure if a weapon had been involved. He pointed his taser at the accused. Officer Lascelles said that he spoke over the other officers. He told the accused to show the officers his hands. He told the accused to get on his knees and interlock his hands over head. The accused was compliant, he did not question them. He followed the instructions and did not run. Officer Lascelles agreed that the commands had to be issued more than once, but that the accused was compliant. He agreed that the accused moved towards the officers a bit even while the guns were pointed at him but then he stopped.
[11] Officer Lalonde testified that Officer Lascelles was making demands of the accused and he was compliant. She explained that she drew her weapon because she believed that the accused had killed Ms. Ricci, that he was a threat to them and to the public. Officer Lalonde explained that she did not know how the victim was killed. Officer Lalonde agreed that the accused was compliant, although initially he continued walking towards them before he stopped and got on the ground.
[12] Officer Lalonde testified that she assisted Officer Poirier in handcuffing the accused, as she was having trouble because of the thick clothing. Officer Lalonde asked if he had anything on him – he said no. Officer Poirier then asked: “Anything that could hurt you or I?”, and he responded “the knife is in the cupboard beside her.” Officer Lalonde testified that she and Officer Taverner escorted the accused to Officer Taverner’ cruiser.
[13] Officer Taverner testified that he was on scene. There were bloody footprints everywhere throughout the second floor and down to the basement. He cleared the house with Officer Lalonde and made sure that no one else was inside. He checked the backyard. No one was there. He then went outside and spoke with Mike Iannacchino. Officer Taverner saw a male walking towards him, wearing gray sweatpants and new balance shoes. Mike started to yell, “you killed mom”. The officer told Mike to stay there. Officer Taverner joined the other officer and pulled out his gun. The accused was arrested. He was covered in blood. Officer Taverner observed blood on his pants leg, ear, shirt and neck. The Officer testified that he did not recall the specific commands that were said, nor did he recall if the commands had to be repeated.
Rights to counsel and caution
[14] Officer Lascelles testified that when the accused was at Officer Taverner’s cruiser, he was searched. A pair of cotton gloves, with blood on them was found in his pocket. Officer Lalonde said that she saw that the accused’s pants were stained red.
[15] Officer Taverner testified that he read the accused his rights to counsel from his card verbatim at 4:22 a.m. The accused was in the cruiser with the window rolled down. He told him he was under arrest for homicide. He then read verbatim the caution from his card at 4:26 a.m. The following exchange then ensued:
T: Do you understand?
CI: What’s a homicide?
T: When someone kills another person
CI: Is that good or bad?
T: Right to a lawyer –
CI: I didn’t have a choice it was self defence
[16] Officer Taverner believed that the accused knew what he was saying. The accused did not know if he wanted a lawyer. The officer explained that he could put him in contact with a lawyer. The accused said that he thought lawyers were good; so, he said “sure”. The officer believed Mr. Iannacchino understood because he said “sure”. The accused muttered that he did not operate at an adult level. The officer said that he heard the accused mutter something, so he cautioned him again. The officer explained to him that he did not have to talk if he did not want to and that if he did, they would write it down. The accused said “okay”. The officer believed that the accused understood why he was arrested, because he said that acted in self-defence. The officer agreed that Mr. Iannacchino had a very calm demeanour.
[17] Officer Lalonde testified that she stayed while the rights were read but she was not able to hear everything as Officer Taverner was blocking her. She heard the accused say that he did not understand what a homicide is. Officer Taverner explained that it is a killing or murder, the taking of another person’s life. She heard Officer Taverner try and explain things in different ways. She heard the accused say that he thinks like a child. Officer Lalonde said that the accused had no odor of alcohol, and he did not display any overt emotions.
At the police station
[18] Officer Taverner drove the accused to the station. Officer Lascelles assisted in lodging him in a dry cell, a cell without running water so he would not be able to wash his hands. Officer Lascelles understood that the accused had been advised of his rights to counsel, but it was the Officer’s practice to re-advise arrestees. It is his practice in every case.
[19] He read the accused his rights to counsel. The accused said that he did not understand. Officer Lascelles testified that he re-read the rights. The accused again said that he did not understand. The officer testified that he went line by line and tried to simplify it for him. The accused understood that he could get a lawyer and understood that he could call one for free legal advice. The accused wanted a lawyer to be called.
[20] Officer Lascelles read the caution and the secondary caution. The accused said that he did not understand. Officer Lascelles broke the caution down into simpler terms. The accused said that he understood that he did not have to say anything. He also understood that if he gave a statement, it is considered evidence. Officer Lascelles explained to the accused that he should not be influenced by anything another officer said. The accused said that he did not understand. Officer Lascelles then said, “If someone like a police officer spoke to you or told you to do something, or not, I don’t want it to influence you.” Mr. Iannacchino said he understood. The officer testified that he broke it down into layman’s terms and believed that the accused understood. In cross-examination, Officer Lascelles agreed that he had to explain the rights to counsel two to four times, and after that, he decided to break it down. Once he broke it down, the accused understood.
[21] Officer Lascelles agreed that the accused displayed no emotion, neither at the house nor at the police station, although he did not know what his normal state was.
[22] At 5:47 a.m., a call was placed to duty counsel. A speaker was placed in the accused’s cell so he could talk with counsel. At 5:56 a.m., the call disconnected. At 5:58 a.m., duty counsel called back. At 6:34 a.m., the conversation with duty counsel was completed.
The collecting of evidence at the police station
[23] At approximately 7:40 am, Identification Constable Lars Schroder attended the detachment to take photos and obtain swabs from Mr. Iannacchino’s hands. This was conducted in the breath room area of the detachment. A video of the process was played and made an exhibit at the motion hearing. The accused followed the officer’s directions during the process without difficulty. For example, he can be seen turning to his left upon request and taking off his jackets when asked. The accused can be described as docile and compliant.
[24] Later that morning, Mr. Iannacchino spoke again with duty counsel.
The videotaped statement
[25] Detective McGuire interviewed the accused at 11:29 a.m. He testified that he wanted to make sure that the accused had spoken to counsel. He confirmed that he had. He also understood that the accused may not be operating at as high a level as others. He learned that in 2014 the accused had been arrested under the Mental Health Act (“MHA”) for having delusions, and that he was almost struck by a car. He also learned that there was an incident in 2018, but the accused was not apprehended under the MHA.
[26] Detective McGuire testified that this was the first time he had interviewed someone with schizophrenia. The officer agreed that the accused had a cognitive impairment.
[27] The officer agreed that the accused needed to have the cognitive ability to understand what was being said, and that it could be used in criminal proceedings. The officer was satisfied that the accused spoke with counsel, and that he did not want to speak with counsel again. The officer stated that, based on the accused’s utterances throughout the interview, the officer believed that the accused understood some of it, but the officer did not know the depth of that understanding. The accused knew he was under arrest and knew that he could receive a life sentence.
[28] Detective McGuire told the accused that he was arrested for second degree murder:
M: So you’re being detained for second degree murder. It is my duty to inform you that you have....
CI: They said it’s homicide to me.
M: They said homicide to you, okay. And did they tell you what that meant last night? Do you recall that?
CI: No, I asked them what does it mean. Yeah – no, they gave me what I wanted to pretty much read at the top in Wikipedia if I were to type it in what it means.
M: Okay. And so can you just tell me what you think that means?
CI: No, no, no, no. I’m saying you know that it’s all right that if I don’t know what it means right now, yeah.
M: Do you know what murder means?
CI: Yeah, I’m happy it wasn’t that – that they said that. That sounds better compared to that.
M: You think homicide sounds better than murder, it sounds better?
CI: Oh, yeah.
[29] Detective McGuire then advised Mr. Iannacchino of his right to counsel, again. When he asked if he understood, Mr. Iannacchino answered:
Not really. I heard you. I think I’m a little mentally challenged. Sorry.
[30] Mr. Iannacchino confirmed that he had spoken to a lawyer on two occasions, one earlier in the morning and one just recently. The officer then asked: “But I also want to make sure your rights are understood, so that you’ve spoke with a lawyer and that you’re satisfied that it was a lawyer you spoke with and that you’re satisfied with the instruction that they provided. So do you understand what I’m asking?” The accused responded:
I heard you. I’m just listening. I didn’t get that one either, sorry.
[31] Mr. Iannacchino said that he did not want to speak to a lawyer.
[32] Detective McGuire then attempted to explain to the accused that he did not have to give a statement. The following exchange ensued:
M: So you’re not obliged to say anything unless you wish to do so but whatever you say may be given in evidence. Do you understand?
CI: No, I’m not understanding, sorry.
M: So, you don't have to speak with me but if you do obviously we’re making recordings and video of our conversation and it can be used in court against you, right, as in the charge of second degree murder. Do you understand that?
CI: I’m still listening.
M: And I understand you’re listening. Do you - I guess can you....
CI: I’m doing the best I can. I can’t follow anything. It’s just like you’re saying a bunch of hard complicated words that don't flow together and make sense.
M: Okay.
CI: I hear me and I hear you, I just don't get it.
[33] The officer then asked the accused if he understood that he was under arrest. The accused said: “unfortunately.”
[34] Detective McGuire tried to explore the accused’s understanding of the concept, but Mr. Iannacchino started to talk about what happened the night before, saying he acted in self-defence. The officer said:
M: Just one second.
CI: Sorry, let me just finish there. That she could do something to me.
M: Okay. And I do want to explore that in more detail for sure. I just want you to understand why you’re here and why we’re having this conversation.
CI: No, he’s the one who should keep his mouth shut and you know when he says you know he’ll give me his Facebook password only if I gave him mine back and I don't and he sets his and makes me keep typing it in or again I mean this is bullshit. Look what he made me do to my mother yesterday you know. He has completely..... ruined my life.
[35] The Officer then tried to ensure that the accused had not been influenced into give a statement.
M: Have you spoken to another police officer or anyone in a position of authority that has spoken to you in connection with this matter I want it clearly understood that not want it to influence you in making a statement. And do you understand what that means?
CI: Uh-humm. It doesn’t seem like it all flowed together.
M: So has a police officer or anybody you’ve been in contact with told you to speak with me today? That’s kind of what it’s asking, if anybody has told you that you shall speak with me this morning. Does that – does that make sense?
CI: No.
[36] The officer then explained that the accused was arrested for second degree murder. The accused then said that it should be the other way around, and that his brother Mike should be trouble and that the accused should be back in his house. He said that Mike was ruining his life.
[37] Detective McGuire then asked the accused why he punched his mother. The accused said that his mother was bothering him about making a sandwich. He could not listen to her anymore. She was purposefully pushing him to do something. She forced him to hit her. He punched her in the face. The following exchange ensued:
M: So what happened after you punched her?
CI: More things I don’t want to do and [inaudible] said she was good after – oh, I can’t talk about this. I just want to go home and sleep and eat and my mom there and him not. He made me step on her and then I said I thought it was good for her not to wake up again. I don't know what’s going on. It felt like another person threw her there and she shouldn’t be talking there, everything should be done. And then there was some head smashing on the wood and then there was more talking and then moving and it just feels like none of these things should have been taking place after I did this. I’m really upset about this. Maybe more things I say I shouldn’t be doing when it should be over.
[38] The accused said that he was concerned about receiving a life sentence:
CI: You guys have been saying murder – now she said on the phone murder – and then you say second degree, this doesn’t sound good. You know I don't want to – I don't want a life sentence. After I was done I said no that I’m not some murderer who just you know started doing stuff to my mom.
[39] The accused said that afterwards he went for walk and came back, and he was hoping that the police would be on his side, but he was “pissed off” that he was told to get on the ground and handcuffed. Later on in the interview, the following exchange ensued:
M: Okay. We kind of talked a couple times about your walk. And at one point you mentioned that you were going to the convenience store and then you turned around and then you didn’t go there like what was your – what were you doing when you went for the walk?
CI: I was hoping that I could say something like I said earlier to you to close to self defence where I could go back in and go to sleep. Early this morning I’m upset that I’m wrong about that and I’m here right now and he’s inside and I’m not there with him as well.
Law and Analysis
[40] 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. The rule is premised, in part, on a recognition that people will sometimes falsely confess to crimes: see R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at paras. 69-71.
[41] The confessions rule strives for a balance between the rights of the accused to remain silent, against self-incrimination and the legitimate law enforcement objectives relating to the investigation of crime. As stated by Kasirer J. speaking for the majority in R. v. Tessier, 2022 SCC 35 at para. 69:
In seeking this balance, the law imposes the heavy burden on the Crown to prove voluntariness beyond a reasonable doubt, which serves as substantial protection for the accused at all stages of a criminal investigation.
[42] 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: Oickle, at paras. 47-71, Tessier, at para. 68. Voluntariness is the touchstone of the confessions rule, as stated in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 35.
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.
[43] All relevant factors in a particular case must be considered. As stated by Kasirer J. in Tessier at para. 68:
...These factors are not a checklist: ultimately, a trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority (Parent, at pp. 26-27; Vauclair and Desjardins, at No. 38.28).
No evidence of threats, inducements, oppressive behaviour or police trickery
[44] There is no evidence that the police used any threats, inducements, oppressive behavior or police trickery to get Mr. Iannacchino to provide a statement. I have heard evidence from the four officers at the scene who came into contact with the accused, who arrested him and who transported him to the police station. I have also heard evidence from the identification officer who photographed the accused and collected evidence from him at the police station. That interaction, as well as the statement itself, was videotaped, and the videos were played at this motion. The evidence easily shows that the police professionally, and with almost no difficulty, arrested and handcuffed Mr. Iannacchino. He was placed in a police cruiser, read his rights to counsel and then taken to the police station, where he was placed in a dry cell. There he was provided with his rights to counsel again and put in touch with duty counsel. Later that morning, around 10 a.m., he again spoke to counsel. The videotaped statement started at approximately 11:30 a.m. The questioning of Mr. Iannacchino was gentle and non-confrontational. I agree with Crown counsel’s submissions that the police at all times treated Mr. Iannacchino respectfully.
The operating mind requirement
[45] Amicus Curiae submits that the evidence shows that the Crown has not proven beyond a reasonable doubt that the accused had the requisite operating mind given that at the time he gave his statement, he was suffering from schizophrenia and had cognitive limitations. The Crown submits that the operating mind standard is a low standard and that, “[t]he operating mind test, in the context of the voluntariness analysis, is such that even a person clearly suffering from a serious mental illness (paranoid schizophrenia) can have an operating mind.” The Crown submits that the police repeatedly cautioned the accused and that they repeated that caution in easy language so that he could understand it.
[46] The operating mind doctrine was recently discussed in Tessier. The majority described it as requiring that the accused understood what he was saying and that what he said could be used in criminal proceedings. As stated at paras. 8 and 50:
Generally, the operating mind doctrine requires the Crown to show that the accused possessed the limited cognitive ability to understand what they were saying and to comprehend that the statement might be used as evidence in criminal proceedings (R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at p. 939).
But as the Court of Appeal itself recognized, the trial judge quoted more liberally from Whittle at para. 38, including the relevant dicta that an accused not only have the ability to understand what they are saying, but also the ability to comprehend that the statement may be used as evidence in criminal proceedings.
[47] 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: Tessier, at para. 53, 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. 9.
[48] The fact that an accused, like in this case, has a mental illness, does not mean that he automatically lacks an operating mind. That point was made clear in Nagotcha v. R., 1980 CanLII 30 (SCC), [1980] 1 S.C.R. 714, where the Supreme Court of Canada upheld the admissibility of a statement by an accused who had been diagnosed as a paranoid-schizophrenic. In Whittle, the accused also suffered from schizophrenia. He provided a statement to the police. The Supreme Court of Canada found that the statement should have been admitted. They noted at para. 55:
To the extent that the inner voices prompted the appellant to speak in apparent disregard of the advice of his counsel and to his detriment, because he did not care about the consequences or felt that he could not resist the urging of the voices, they cannot be the basis for exclusion. Inner compulsion, due to conscience or otherwise, cannot displace the finding of an operating mind unless, in combination with conduct of a person in authority, a statement is found to be involuntary.
[49] The court stated at para. 50:
The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused. [emphasis added]
[50] There is no dispute in this case that Mr. Iannacchino suffers from schizophrenia. However, in this case, it is not the schizophrenia that is a concern with respect to the operating mind doctrine. In this case, the issue is that the accused also suffers from a cognitive impairment that affected his ability to understand the cautions that he was given.
[51] It is evident from the police witnesses that the accused had difficulty understanding all of what was being told to him. The accused told PC Taverner, when the officer was giving him his rights to counsel, that he did not operate at an adult level. PC Lalonde heard the accused say, at that time, that he should be treated like a child. During his videotaped interview, the accused told Detective McGuire that he was a little mentally challenged. There is no medical evidence regarding the accused’s cognitive impairment. However, the onus is on the Crown to prove beyond a reasonable doubt that the statement was given voluntarily. In addition, none of the police officers testified that they believed that the accused was faking or lying about his impairment. Detective McGuire testified that he was told before he interviewed the accused that he was not functioning at as a high a level as others.
[52] I am satisfied that the accused knew what he was saying and that he knew he was under arrest for murder and facing a life sentence. In my view, that conclusion flows easily from the interview itself. The accused’s answers were responsive to the questions posed of him. I agree that at times the accused would digress into other topics, such as when he discussed the number of flicks it took him to get the ash off of a cigarette. But for the most part, he answered directly the questions posed by the officers. The answers also showed an understanding of his situation, as can seen in the following exchanges:
M: Okay. Chris, do you know where you are right now, which detachment you’re in?
CI: No, not really, a police station.
M: Do you – you understood you are under arrest. Do you understand that?
CI: Unfortunately.
CI: You guys have been saying murder – now she [counsel] said on the phone murder – and then you say second degree, this doesn’t sound good. You know I don don't want to – I don't want a life sentence.
M: So after you punched your mom, what happened next?
CI: I told you already. Two more things after.
M: Do you know where your mom is now?
CI: No.
M: Do you understand she’s deceased?
CI: You just said that. I’m upset and I have no one to talk to…….
M: ...the cigarettes? No? Do you remember what she was saying?
CI: When?
M: Before you punched her?
CI: No, I don't remember anything. It’s stupid. I said pretty much everything – I’ve got nothing really more to say about that.”
[53] The critical question though is whether the accused’s cognitive impairment affected his ability to understand what he was saying, and to comprehend that the statement might be used as evidence in criminal proceedings. I have significant concerns that he did not.
[54] Mr. Iannacchino had difficulty throughout his interactions with the policefully understanding the rights to counsel and the caution. Officer Taverner had to explain the rights to counsel and the caution to the accused several times and in different ways. Officer Lascelles testified that he had to explain the rights to counsel and the caution several different times, even though this had already been previously explained to the accused by Officer Taverner. At the police station, Officer Lascelles broke the caution down into simpler terms. The accused said that he understood that he did not have to say anything. He also understood that if he gave a statement, it is considered evidence. Detective McGuire had to explain again to the accused his rights to counsel even though the accused had been explained his rights by the two other officers.
[55] In my view, the accused was certainly capable of understanding his rights to counsel and the cautions he was provided, but they had to be explained to him in simple terms. Detective McGuire told Mr. Iannacchino that his statement could be used against him. It is clear from the following exchange that the accused did not understand the concept:
M: So you’re not obliged to say anything unless you wish to do so but whatever you say may be given in evidence. Do you understand?
CI: No, I’m not understanding, sorry.
M: So, you don't have to speak with me but if you do obviously we’re making recordings and video of our conversation and it can be used in court against you, right, as in the charge of second degree murder. Do you understand that?
CI: I’m still listening.
M: And I understand you’re listening. Do you - I guess can you....
CI: I’m doing the best I can. I can’t follow anything. It’s just like you’re saying a bunch of hard complicated words that don't flow together and make sense.
M: Okay.
CI: I hear me and I hear you, I just don't get it.
[56] Officer McGuire never returned to the topic and never tried again to explain to the accused that if he spoke to the police, what he said could be used against him. I agree that the officer gave up trying to explain things to Mr. Iannacchino.
[57] Crown counsel submits that I can be satisfied that the accused knew what he said could be used against him in court by considering the explanations that were previously provided by the other officers and seemingly understood by the accused. I disagree. The difficulty for the Crown is that the accused appears to, at the time, only have a limited ability to retain what he was told. Officer Lascelles had to explain anew to the accused, even though Officer Taverner had explained to the accused the rights to counsel and the caution. Officer McGuire had to start from the beginning as well, even though two officers had previously spoken to the accused and even though the accused had spoken to duty counsel two times. I agree that, by the time he gave his statement, some of the concepts that had been explained to him were starting to stick, but clearly not all.
[58] The Crown submits that the accused in his statement deflected responsibility from himself. He claimed that he killed his mother in self-defence and he blamed his brother. The Crown submits that one would only do that when talking to the police if one understood that the police could use what is said in court. In my view, what the accused said in his statement does not assist me in determining if he knew what he said could be used in criminal proceedings. In the normal course, where an accused claims self-defence or seeks to blame a third party, one could infer that he understands the caution. But this is not the normal course. Yes, the accused blamed his brother, but he also said that his brother was not there when he attacked his mother. Yes, he claimed self-defence, but he also said that his mother was trying to commit suicide by having him attack her.
[59] The Crown also submits that:
From the moment the police interacted with him, Mr. Iannacchino had been trying to explain what he had done and why. He freely chose to explain to them. Despite the presence of mental health concerns, he nevertheless, meets the standard required for an operating mind.
[60] I do not agree with the Crown’s characterization in this regard. It is correct that Mr. Iannacchino told Officer Taverner that he acted in self-defence, and he told Detective McGuire the same during his interview. But to the extent that the Crown was trying to paint a picture of an accused begging to tell his story, it is simply not the case. The accused’s comment to Officer Taverner occurred while he was being given his rights to counsel and caution. He made no other comments about what happened until he was interviewed by Officer McGuire.
[61] Having considered all the factors, I am left in a doubt regarding the voluntariness of the accused’s videotaped statement. I simply do not know if he had an operating mind and if he understood that his statement could be used in a criminal proceeding. The application to admit the statement is dismissed.
Statement to Officer Taverner
[62] The Crown also seeks a ruling that Mr. Iannacchino’s statement to PC Taverner that he acted in self-defence is voluntary and can be used, if necessary, to cross-examine the accused. Officer Taverner testified that he read the accused his rights to counsel from his card verbatim at 4:22 a.m. He then read verbatim the caution from his card at 4:26 a.m. The following exchange then ensued:
T: Do you understand?
CI: What’s a homicide?
T: When someone kills another person
CI: Is that good or bad?
T: Right to a lawyer –
CI: I didn’t have a choice it was self defence
[63] As set out above, the accused had a cognitive impairment. He did not operate at an adult level. The comment the Crown seeks to introduce was made at the beginning of the officer’s attempts to explain the rights to counsel and the caution. The officer had to explain several times because the accused did not understand. I also note that the officer never, in layman’s terms, explained that the statement could be used in court. He only told the accused that the police would write down what he said. I am not satisfied that the accused had the requisite operating mind. The Crown has not proven beyond a reasonable doubt that the statement is voluntary.
Justice H. Leibovich
Released: February 21, 2023
[^1]: Amicus did not press this issue during closing arguments given that the Crown stated that they were not seeking to lead the comment at trial. In any event, in my view, given the circumstances, it made perfect sense for the officer to first ensure that the accused had no weapons before reading him his rights to counsel.