Court File and Parties

COURT FILE NO.: CR-21-70000503-0000 DATE: 20230622 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – DONALD WAYNE RIGGS

Counsel: A. Spieser, for the Crown D. Riggs, Self-represented D. Paton, amicus curae

HEARD: 25 April 2023

S.A.Q. AKHTAR J.

Factual Background and Overview

Introduction

1The accused, Donald Riggs, stands charged with two sets of voyeurism offences. The first is alleged to have occurred on 31 August 2020 and the second between 1-25 December 2020. The subject of the accused’s alleged illicit viewing was his next-door neighbour. The accused also faces charges of threatening his neighbour’s brother and failing to comply with an undertaking.

2The Crown seeks a ruling on the admissibility of a police interview conducted with the accused after he was invited to speak with them at the police station.

3At the end of the voir-dire and following submissions, I found the statement to be made voluntarily and admissible for use by the Crown. These are the reasons for my decision.

Background Facts

4On 22 August 2020, two civilians found a black mobile phone in a parking lot at Sandbanks Beach in Picton. The next day, they went to the York Regional Police 2 District station to hand in the phone and inform the police of what had happened when they looked at its contents.

5The civilians advised the officer on duty, Police Constable Poole, that when inspecting the phone they received a phone call from a male who told them that the device belonged to him and that he wanted it returned. After they had searched the phone, they discovered a series of photographs which identified the applicant. However they were also troubled when they viewed a video of a female being filmed without her knowledge.

6PC Poole performed a cursory search of the phone and found a video of a woman being filmed through a window as she undressed. He also located a photograph of the applicant’s driver’s licence.

7As a result, the police swore an information to obtain a search warrant (ITO) to examine the contents of the phone.

8The investigating officer, Detective Constable Shillingford, found numerous videos and photographs of a female in various states of undress and having sex.

9DC Shillingford contacted the accused on 3 September advising him that he was to be charged and asking him to surrender himself.

10The following day, the applicant attended the station, was arrested, and interviewed. He provided a videotaped statement lasting almost 4 hours during which he made several incriminating utterances.

11The Crown seeks a ruling regarding the voluntariness of the statement.

Legal Principles

The Test for Voluntariness

12When the Crown seeks admission of an accused’s utterance or statement, it has the burden of proving, beyond a reasonable doubt, that it was made voluntarily.

13A voluntary statement is one which also complies with an accused’s protected right to silence under the Charter: R. v. Oickle, 2000 SCC 38, [2000] S.C.R. 3 at paras 30, 33; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at para 7. The question for the determining court is whether the accused’s will was overborne in making the statement. The voluntariness rule has at its core, the twin goals of protecting an accused’s rights without unduly limiting society’s need to investigate and solve crimes: Oickle, at paras. 32-33.

14In Oickle, the Supreme Court of Canada identified four areas of concern in cases where an accused has made a statement to the police: (1) where offers or inducements have been made to obtain the statement; (2) where the police have engaged in oppressive conduct; (3) where an accused lacks an operating mind; and (4) where the police have resorted to tricks in order to obtain a statement.

15The jurisprudence respects the fact that some kind of inducement will often be offered to obtain a confession. However, the inducement only “becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”: Oickle, at para. 57. A quid pro quo will not render a statement involuntary. The key is whether the strength of the inducement makes the statement involuntary: R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500.

16In Singh, at paras. 47-53, the Supreme Court of Canada made clear that a legitimate means of persuasion is permissible when police question a suspect. The police are not obliged to cease questioning when an accused asserts their right to silence. However, the Court also explained that continued questioning in the face of an accused’s declaration of his unwillingness to speak and right to silence might, depending on the circumstances, amount to a denial of a meaningful choice to remain silent.

The Requirement for an Operating Mind

17When assessing whether an accused has an operating mind, the Crown must show that they possessed the limited cognitive ability to understand what they were saying and comprehend that the evidence might be used in criminal proceedings: R. v. Whittle, [1994] 2 S.C.R. 914, at p. 939; R. v. Tessier, 2022 SCC 35, [2022] S.C.J. No. 35 at para. 8.

18The operating mind test “requires proof that the accused was capable of making a meaningful choice to speak to the police and that the choice was not improperly influenced by state action”: Tessier, at para. 51.

Analysis

The Positions

19As described, the accused was interviewed after he had been contacted by DC Shillingford and asked to surrender himself at the station. From the outset, he knew of the investigation and the jeopardy he faced with an impending arrest for several charges of voyeurism.

20When he arrived he was greeted by Detective Constable Ahmed Payandi who accompanied Shillingford. The accused was advised he was under arrest at 8:20 p.m.

21The accused was taken into the interview room at 8:24 p.m. by Shillingford with Payandi observing remotely.

22Although there is no allegation of any s. 10 Charter breach, I note that at the commencement of his interaction with the police and during the course of the interview, the accused was informed of his right to speak to a lawyer. At the station, and during the interview, he repeatedly told police that he had previously spoken with counsel.

23Crown counsel submits that the statement was video recorded and that there was no impropriety on the part of the police. Moreover, she argues that when the statement is viewed in its entirety, it is clear that the accused is fully aware of the consequences of making the statement and, at times, was actively seeking out information from the police.

24The accused disagrees and opposes admission of the statement on the basis that the Crown has not demonstrated that he had the required operating mind. In advancing this position, he asks the court to consider his conduct and words during the course of the interview and most particularly at its conclusion when he was left alone in the interview room for a short period of time.

Did the Accused Have the Required Operating Mind?

25I have reviewed the four hour video statement. It is clear there were no threats made or inducements offered by DC Shillingford. The accused was offered both water and food. He was cautioned at the start of the interview and reminded that it was his choice to speak to the police.

26Nor is there anything in the police conduct that could be characterised as being oppressive. In fact, the accused testified that Shillingford’s presence had a calming effect and he spoke to him in a soothing manner.

27In terms of the operating mind, it should be worth remembering that “the default assumption is that, absent cognitive impairment, an operating mind exists”: Tessier, at para. 52.

28Here, the accused had already spoken to counsel prior to his arrival at the station. He knew what was going on, and must have been aware of the consequences of speaking to the police.

29As pointed out by the Court in Whittle, at p. 939, an accused is not entitled to a good or wise choice.

30Moreover, the recorded interview provides several examples where, when asked questions in the interview, the accused chose what he wanted to answer and declined to comment on other subjects.

31For example, when asked about how his mother feels, he replies “I don’t know if I really want to answer that one.”

32When asked about why he believes he is being interviewed the following exchange takes place:

SHILLINGFORD: Um I know we’ve been talking for a bit. RIGGS: Yeah. Yeah. Yeah. Yeah. Mm-hmm. So, this is all on me. I know that. SHILLINGFORD: So, what brings us here today? Like, how did we get and how did we - and how did we get to this point here? RIGGS: Well, that’s something you need to answer. That’s not me. SHILLINGFORD: Right. Um. RIGGS: I just want my phone. SHILLINGFORD: Okay. So, you’re not - like, I can’t give you your phone right now. RIGGS: Yeah. I know. But that’s why, you know, that’s – that’s – ah you asked what brings me here. I mean, that’s all, I lost my phone and – and - and I want my phone.

33This exchange clearly shows that the accused knew the purpose of the interview and its consequences. There is no doubt that in another part of the interview, he withheld information about the subject of the photos. On other occasions, he made enquiries of the police seeking to find out what information they had obtained and how many images they knew about. When pressed on whether the images were taken within a specific time period, the accused responded by saying “I’m not going to answer those kind of questions. Not right now.”

34There are other instances where the police sought to obtain answers about the pictures discovered on the accused’s phone and the accused refused to answer saying: “Well, here we go. I mean, I cannot talk to you about this right now. I want to be able to sit down with you. I do ah with my lawyer but that has to be under the advisement of my lawyer. I cannot just wing it here. You know what I mean.”

35Later on, when Shillingford returned to the subject of the phone, the accused told him he has no interest talking about it and had been instructed not to do so by his lawyer:

SHILLINGFORD: Yeah. Yes. Right. I... RIGGS: Well, I–I–I–ah I honestly, I don’t want to speak about anything to do with this. Um you know, I don’t mind telling you about myself. SHILLINGFORD: Mm- hmm. RIGGS: But this who- but this – this thing because I’m - I’m - I’m under you know my lawyer’s instructions. SHILLINGFORD: Yes. And that’s absolutely fine. RIGGS: You know. SHILLINGFORD: And you’re not - and you’re not obliged to. RIGGS: And - and… SHILLINGFORD: But I can ask. Right. RIGGS: Yes. No. Because – and – and... RIGGS:...and I know you’re trying to make it as part of our conversations and stuff like that.

36Significantly, the accused was evasive about the make of the phone or how long he had owned it repeating his lawyer’s advice to remain silent. These types of comments were repeated throughout the interview. Further, he refused to identify the woman captured in the video on his mobile phone because he was concerned she might become upset.

37There can be no doubt that the accused knew of his right to remain silent as he explicitly told Shillingford of that fact at the outset of the interview. He also knew any utterances could be used against him. He chose to continue to speak to the police with that knowledge. The mere fact that he now regrets doing so does not render that statement involuntary. As I have already stated the doctrine of voluntariness does not protect an accused against bad choices.

38DC Payandi testified that he cautioned the accused when he arrived at the station but Shillingford did not appear to do so when he began the interview. In Tessier, the Court explained that the caution is an important aspect of voluntariness but its absence is not fatal. To establish voluntariness, the Crown must prove beyond a reasonable doubt that the lack of a caution did not undermine the accused’s freedom of choice to speak to the police.

39One way of doing so would be to show that the accused was aware of the right to remain silent: Tessier, at para. 88. Here, for the reasons already described, I find that it is clear the accused did know of his right to silence and chose to continue to speak to the police.

40The accused testified that he was suicidal when going to the station and in a continued state of depression when speaking to the police. The accused says he suffers from post- traumatic stress disorder, memory fog, anxiety and, during this time period had difficulty getting out of bed in the morning.

41He asks this court to acknowledge the effect of his personal life on his mental state, having lost his mother, his pet, and then having to isolate during the COVID-19 lockdowns and his fear of the virus. He says he was “not right in the head” when he was interviewed and that even though he knew of his right to silence, he did not properly follow it.

42This, he says is illustrated by his conduct during the interview most pointedly when Shillingford left the interview room and the accused sat on the floor appearing in some distress.

43There is no doubt that the accused was in a difficult emotional situation at the time of being charged and interviewed. However, his anxiety and depression cannot become the basis for involuntariness.

44In Whittle, the accused was suffering from auditory hallucinations and testified on the voluntariness voir-dire that inner voices told him he needed to speak to the police. He also acted in a strange manner during the police interview, making bizarre comments. The Court held that the accused’s mental state did not undermine the voluntariness of his statement. At [check page] the Court held:

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. As for the Charter rights asserted, once the operating mind test is established, an accused is not exempted from the consequence of his or her actions absent conduct by the police "which effectively and unfairly deprived the suspect of the right . . ." (Hebert, supra, at p. 182).

45For these reasons, I find that the accused had the requisite operating mind and the statement was voluntary.

46It is accordingly admissible.

S.A.Q. Akhtar J.