Court File and Parties

Court File No.: CR-21-867-00 Date: 2023-06-22 Ontario Superior Court of Justice

Between: His Majesty The King -and- David Scott

Counsel: Maria Stevens, for the Provincial Crown Naomi Lutes, for David Scott

Heard: August 8, 2022

Voluntariness Ruling

D.E. Harris J.

[1] The police interview of Mr. Scott after he was arrested for importing child pornography at Pearson Airport demonstrates the risks inherent in a police officer insinuating the issue of bail release into the interview of a detainee. Because of the threat he may not get bail unless he cooperated and spoke to the officer, I found that Mr. Scott’s statement had not been proved voluntary beyond a reasonable doubt and was inadmissible. I will explain that ruling in these reasons.

The Evidentiary Background

[2] Mr. Scott arrived at Pearson Airport from Belize on June 27, 2020 via Houston. In his luggage were found child pornography on his digital devices. He was arrested and detained by the Canadian Border Services Agency officers after the discovery at about 5:00 p.m. He spoke to duty counsel. It was not until almost midnight that the officer-in-charge, Brad Imber of Peel Regional Police, entered a custodial room to interview Mr. Scott at the airport.

[3] Early on in the interview, Officer Imber told Mr. Scott that he would not try to trick him. It was pretty obvious what had happened. Mr. Scott responded soon afterwards that he had nothing to say. But Officer Imber continued to ask questions and Mr. Scott continued to answer them. Officer Imber informed Mr. Scott that he had been arrested for possession of child pornography which he defined as sexually explicit acts involving someone under 18 years old. When asked whether he knew of any reason child pornography would be on his devices, Mr. Scott said that he did not.

[4] The conversation was steered by Officer Imber to the subject of Belize, the country Mr. Scott had flown in from. Mr. Scott said he had a residence in Belize. This conversation followed:

OFFICER: Okay. What's the address in Belize? SCOTT: It's irrelevant. OFFICER: Well, it's not so irrelevant, David, because there's an issue with that. I have to be able to say in order to, um, impose certain conditions or advise if you should be released, certain things and one of those things is to establish whether or not you're a flight risk, okay? And the fact that you are associated to Belize... SCOTT: Yes. OFFICER: ...you have a address there. SCOTT: I do. OFFICER 1: That I don't know of, okay? SCOTT: Okay. OFFICER: And that you're refusing to tell the police. So that informs the police that you're possible flight risk. [Emphasis added]

[5] Officer Imber than asked again what the address in Belize was and Mr. Scott provided it.

[6] This exchange conveyed to Mr. Scott that Officer Imber was in charge and that he had best cooperate with him. It also left the impression, true as it was, that Officer Imber had a say in the question of whether Mr. Scott should be released on bail or not. The general message was that a lack of cooperation might potentially have a negative impact on whether Mr. Scott would be released. This interaction set the stage for the main overture made by the officer later in the interview.

[7] A lengthy discussion about Belize and Mr. Scott’s property there followed. This was very pleasant conversation with the officer listening patiently to Mr. Scott talking expansively about life in Belize and how wonderful was swimming in the ocean there. The discussion was then turned quite abruptly to the digital devices in Mr. Scott’s possession, chief amongst them his Surface computer. Mr. Scott admitted it was his but then asserted again that he did not have anything to say. Officer Imber said that he would not and could not lie to Mr. Scott. The officer said that the secondary inspection officers had seen disturbing images of child pornography, children 7-10 engaged in sex acts. The officer emphasized the deplorable nature of child pornography.

[8] The following passage is the main reason Mr. Scott’s statement was ruled involuntary:

To me the ages that were seen [7-10] were very disturbing to me. Not that any of it isn't, okay? But I've got someone sitting in front of me that claims he has no knowledge of those devices, he's not sure if this is even his, however he claims this is his and I can tell you right now this is the same device, David, I can tell you that e-mails were seen on how to have sex with a minor on your computer. So not only were images seen, there were also e-mails seen that seem to be instructions on how to have sex with someone that is a minor. So now I've got images and video files, one second, this is my turn, David. SCOTT: Yeah. OFFICER: And e-mails on a device that belongs to yourself that you're 2 sitting in front of me and claiming no ownership to whatsoever. So this gets me to my question is who is David Scott, okay? Because believe me when I say this, there's a whole spectrum of people that I speak to inside this room, David. There are people that come in this room and think that there's no problem here, they're not able to understand that child pornography is a problem. There's people that come in here and are battling certain issues, thoughts... SCOTT: Sorry? OFFICER: Battling... SCOTT: Yeah. OFFICER: ...issues, feelings that they may have. SCOTT: Yeah. OFFICER: About these things, right? They're not sure how to deal with them but in all cases, David, right, there is an issue, it's just dependent what that issue is and who is the person with it. Do you understand what I'm saying? SCOTT: Yeah. OFFICER : Because what I have to do, David, is I have to submit a, a court package. SCOTT: Yes. OFFICER: Okay. On who I believe David Scott is. And to me, right now, David Scott is not someone that gives a whole shit of a lot about child pornography being found on this device. I'm gonna pardon my French here, it doesn't seem like you give two fucks. And if that's the image that you want me to put forward to the courts, David, I can do that. A 73-year-old man found with child pornography that couldn't care less about it being found, that couldn't care less about the child victims that I deal with on a day-to-day basis. The child victims that I swore to protect. So if this is the image that you want me to put forward of David Scott, so be it. SCOTT: I don't recognize the images that, that you're describing. I, I don't. I mean... [Emphasis added]

[9] It was soon after this that Mr. Scott confessed to deliberately collecting child pornography on his digital devices. Also worthy of mention, a little later in the interview, the officer asked Mr. Scott to rate his dangerousness from 1 to 10. The officer in setting up the rating system, said, “Ten being someone I would never want released into the community to be near children ever again, someone that is, is, is-, abuses children in a sexual manner and places children at serious risk of harm... [Emphasis added].” In response to the officer, Mr. Scott scored himself low on the scale because of his age.

[10] To complete the picture, it is of some importance that the court package for bail was referred to by the officer at the end of the interview as well several times. He said the package was going to court and there was definitely going to be a bail hearing.

The Law

[11] Was there a quid pro quo, an offer of one thing for another? A quid pro quo is the touchstone in identifying an improper inducement: R. v. Oickle, 2000 SCC 38 at para. 57.

[12] At the point in the interview when the officer’s main confrontation of Mr. Scott occurred as quoted at paragraph 8 above, Mr. Scott had denied that he had deliberately downloaded child pornography. As the officer recapped at the outset of the passage, Mr. Scott had denied knowledge of the material. Mr. Scott had also, after consulting with counsel, asserted his choice to remain silent on two occasions.

[13] The problem with the key passage above was not mainly that the officer morally denigrated Mr. Scott’s character. He certainly did that in no uncertain terms. Use of this kind of extremely aggressive language by a police officer in interviewing a detainee is inadvisable. Over time, that denigration could have become oppressive, but it was quite brief and could not possibly have been enough on its own to leave doubt on voluntariness. But the denigration did have an important role to play. It was made clear that the moral opprobrium in which the officer held Mr. Scott was going to be conveyed to the bail court by way of the court package.

[14] Of key importance, the officer also said that, together with the reprehensible nature of the crimes, he would also convey that Mr. Scott had been uncooperative. To reiterate, the officer, while raising his voice significantly on the video, said:

… David Scott is not someone that gives a whole shit of a lot about child pornography being found on this device. I'm gonna pardon my French here, it doesn't seem like you give two fucks. And if that's the image that you want me to put forward to the courts, David, I can do that. A 73-year-old man found with child pornography that couldn't care less about it being found, that couldn't care less about the child victims that I deal with on a day-to-day basis … So if this is the image that you want me to put forward of David Scott, so be it. [Emphasis added]

[15] The officer said that he had concluded that Mr. Scott did not care and did not care about child pornography victims based on the lack of cooperation and his refusal to say anything. The not too subtle subtext beyond this was that Mr. Scott had not said anything that satisfied the officer; he had not admitted to deliberately downloading child pornography. It was made clear that this omission would be to his detriment in securing bail.

[16] In summary, the officer challenged Mr. Scott with a two-pronged attack. There was the grave seriousness of the crime with which he confronted him. In addition, there was Mr. Scott’s failure to cooperate or speak about it. The approach was extremely aggressive and heavy-handed, propelled by choice profanities aimed personally at Mr. Scott. These two aspects—the seriousness and the lack of cooperation--led to the officer’s negative portrayal of Mr. Scott which he would “put forward” to the bail court.

[17] The officer’s right to influence on the issue of bail release had already been established by the earlier passage quoted above at paragraph 4 and was reiterated for emphasis here. In this way, it was clear that talking and confessing would produce a positive bail recommendation from the officer; not talking and confessing would lead to a negative one.

[18] The officer’s monologue threatened prejudice if Mr. Scott chose not to speak. Do not talk, do not get bail. Talk, get bail. This was a false dichotomy or, at the very least, a grossly overstated one. Whether a person confesses may have some limited impact on bail release. But it was clear at this early stage that the material was found on multiple devices in Mr. Scott’s possession. The fact is, Mr. Scott would inevitably have been released on bail given that he was a first offender and in light of the other circumstances. On the evidentiary foundation apparent on this record, the prospect of no bail was a false threat conjured up by the officer to get Mr. Scott talking.

[19] Framed in the parallel language of the right to remain silent, the free choice to talk or not was compromised by the stark ultimatum the officer imposed: R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 176-177; R. v. Whittle, [1994] 2 S.C.R. 914. Inducements vary in their power and impact on a detainee. But there are few more powerful inducements upon initial detention than the prospect of bail. A detainee anxiously anticipates the end of his or her detention and release from custody. It is a matter of absolute first priority. As a result, dangling liberty as a potential reward for talking is one of the most powerful tools to get a detainee to talk about the allegations against him or her. What makes it so effective, however, also makes it an improper inducement.

[20] Any reasonable detainee would have been intimidated. A police officer was cursing at him, depreciating his character, and telling him that he was very dissatisfied with what he had divulged thus far. But it was made worse because of Mr. Scott’s lack of any experience with the criminal justice system. He had already been held for seven hours, much of that in the airport cells. He is an intelligent man and would easily have ascertained what the officer was telling him needed to be done in order to receive a positive bail recommendation, something that would probably lead to bail.

[21] Two key prerequisites emphasized in the case law were met here. There was a causal link between the inducement and the confession; and the operative inducement used by the police was false: R. v. Fernandes, 2016 ONCA 772 at paras. 29-30. Mr. Scott insisted on his right to silence and had not incriminated himself until the forceful inducement was made to him. He then readily confessed. The sequence leaves no doubt about why he did so; the inducement worked just as was intended. With respect to the requirement for an inducement to be built on false information as mentioned in Fernandes, the officer manipulated the truth, greatly magnifying the effect admissions would have on bail, making it appear as though they were virtually necessary to Mr. Scott’s liberty.

[22] In arguing that the statement was voluntary, the Crown relies on R. v. Castellano, 2023 ONCA 45. The trial judge had ruled a statement voluntary. The main argument at trial and on appeal centered on the interviewing officer’s statement, after the appellant had inquired about whether he would be released, to “work with” him. This was argued to be an inducement to get bail. The trial judge held that the appellant did not interpret the comment as a quid pro quo. The Court of Appeal agreed. The Court of Appeal commented that appellant counsel’s “approach is itself piecemeal, with the various statements taken out of context and divorced from the entire record of the interview” (para. 12). Justice Van Rensburg concluded for the Court:

14 The question is not, as the appellant’s counsel suggested, simply whether isolated passages can support a reasonable inference that an inducement was offered, thereby raising a reasonable doubt about the voluntariness of a statement. The court must determine whether what was said constituted an inducement, and then consider its effect. … The trial judge adopted the correct approach, considering the alleged inducements in the overall context of the interview, the appellant’s circumstances, and what was said in his statement. Her determination that the appellant’s statement was voluntary reveals no error.

[23] The essential lesson from Castellano is not new. The leading case of Oickle repeatedly emphasizes the importance of a contextual approach: see paras. 50, 54, 71. In interpreting an interview and whether an inducement was offered and acted upon, the full context must be considered.

[24] The facts underlying the Castellano judgment are a useful contrast with the case at hand. The task on a voluntariness voir dire is to gauge whether what was said was an inducement and, if so, the effect on the suspect. Both must be viewed from the perspective of the detainee in the full context. The difference between this situation and Castellano is that the linkage between talking in the interview and bail release was explicit in this instance. There was a direct relationship between speaking frankly to the police officer and Mr. Scott’s bail release. Very little is needed in the way of interpretation to fill in lacunae in the officer’s words and the message he was conveying to Mr. Scott. In Castellano, the statements from the officer were ambiguous at best.

[25] Here, the circumstances and the language used reduce to, “You make a statement, and I will see that you get bail.” This was held to be a blatant inducement rendering an accused’s statement inadmissible in R v Zaveckas [1970] 1 All ER 413, 54 Cr App Rep 202 (C.A.). And see The Honourable Fred Kaufman, “The Admissibility of Confessions (1979) (3 rd ed.) at p. 198. The same is true in this instance.

[26] It is for these reasons that it was held that the Crown had failed to prove voluntariness beyond a reasonable doubt and the statement was inadmissible.

D.E. Harris J. Released: June 22, 2023