COURT FILE NO.: CR-22-715-00

DATE: 20231206

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

- and -

ADNAN REFAEH

Accused

Peter Keen, for the Prosecution

Brian Starkman and Robert Wulkan,

for the Defence

HEARD: November 17, 2023

PETERSEN J.

reasons for DECISION ON VOLUNTARINESS

INTRODUCTION

1. Adnan Refaeh is charged with dangerous driving causing bodily harm and failure to stop at the scene of an accident that resulted in bodily harm. The motor vehicle accident in question happened on May 15, 2021. A jury trial has begun in this case. This decision relates to a mid-trial Application brought by the Crown.

2. Mr. Refaeh was arrested on May 21, 2021. At that time, he was also charged with stunt driving under the Highway Traffic Act and with the offence of criminal negligence causing bodily harm. He was properly cautioned by the police and was given his rights to counsel, which he exercised. He was taken into custody and was interviewed by a police officer that evening. The interview lasted about 40 minutes, between 6:25 and 7:05 PM.

3. The Crown is seeking a voluntariness determination with respect to Mr. Refaeh’s statement to the police. Crown counsel wishes to rely on the statement during the trial, either as part of the prosecution’s case, or for the purpose of cross-examination should the accused decide to testify in his defence.

4. I conducted a voir dire, during which the Crown played a video recording of the police interview and called the interviewing officer, Sergeant Gordon, to testify. The Defence did not call any evidence. The accused has no obligation to call evidence because the Crown bears the onus of proving voluntariness beyond a reasonable doubt. If the Crown fails to meet this burden, the accused’s statement to the police is inadmissible for any purpose.

5. The Defence takes the position that there is reasonable doubt about the voluntariness of Mr. Refaeh’s statement because Sergeant Gordon, during the interview, made comments implying that, contrary to the legal advice the accused had received from his lawyer, there would be a forensic benefit to telling his version of the events then, rather than waiting to do so at trial. Defence submits that Sergeant Gordon made it seem as though there was some unspoken disadvantage to the accused if he didn’t tell the police what happened and chose, instead, to follow his lawyer’s advice to remain silent.

6. The Crown submits that there was no implied threat or inducement made by the interviewing officer, and that there is no evidence that the will of the accused was overborne by either the words or conduct of Sergeant Gordon.

LEGAL PRINCIPLES

7. To determine whether there is reasonable doubt as to the voluntariness of an accused person’s statement to police, the Court must engage in a contextual analysis of all the relevant circumstances. The content of the police interview, the totality of the circumstances surrounding the interview, and the personal circumstances of the accused must be taken into consideration to determine whether there is reasonable doubt that the accused made an informed and free choice to speak to the police: R. v. Oickle, 2000 SCC 38, at para. 68; R. v. Spencer, 2007 SCC 11, at paras. 11-12.

8. With respect to the content of the interview, relevant factors include (but are not limited to) the presence or absence of a caution given to the accused (R. v. Brokenshire, 2019 ONSC 7466, para. 63), any threats made by the police, and any improper inducements made by the police. Some inducements are permissible means of persuasion, such as appeals to the accused’s morality or conscience. The police can tell an accused, for example, that he will feel better if he gets things off his chest, or that his family will be proud of him if he takes responsibility for his actions by telling the police what he did. The police should not, however, promise legal benefits in exchange for a statement – the latter amounts to an improper offer of bargain (“quid pro quo”): Oickle, at paras. 48-49, 54-55, and 57.

9. This applies even if the officer does not make a promise of beneficial police conduct in exchange for a statement, or a threat of adverse police conduct if the accused remains silent. As the Court of Appeal for Ontario noted in R. v. Wabason, 2018 ONCA 187, at para. 16, if police “characterize the legal consequences of making or not making a statement as a given, as opposed to promising an act that would be worked out by the police or a judge,” that can amount to an even more coercive inducement or threat. In Wabason, the Court found a quid pro quo because an officer told the accused that the recording of his police interview would be played in court and suggested that the accused would be judged based on what he said in the interview, with no opportunity to give his side of the story unless he spoke to the officer there and then. Similarly, in R. v. Othman, 2018 ONCA 1073, the Court of Appeal found a quid pro quo when an officer told the accused that he may never get another opportunity to, and would be convicted if he did not, tell his side of the story to the police.

10. It is clear from the caselaw that a quid pro quo, whether constituted by threats or improper inducements, need not be overt, but rather may be veiled: Oickle, at para. 53; R. v. Garnier, 2020 NSCA 52, at para. 42. The Court of Appeal for Ontario has cautioned trial judges against discounting threats or inducements simply because there was no express threat or explicit promise of police or court action. If an officer’s comments effectively convey to the accused a warning of increased jeopardy for remaining silent, or hope of decreased jeopardy for speaking, that amounts to an implied quid pro quo: Wabason, at para. 18.

11. The existence of a quid pro quo is an important factor in assessing the voluntariness of an accused person’s statement to the police, but it is not a determinative factor: Spencer, at paras. 14-15. Even without a quid pro quo, the accused’s personal circumstances and the circumstances surrounding the interview may raise reasonable doubt about the voluntariness of the accused’s statement. Moreover, if a quid pro quo is found to exist, the statement is not automatically excluded on the basis of involuntariness. The Court must determine whether the threat or inducement, either standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the free will of the accused was overborne: Oickle, at para. 57; Spencer, at paras. 13-15, and 19; R. v. Singh, 2007 SCC 48, at paras. 19, and 38; Wabason, at para. 19; Othman, at para. 21; Brokenshire at para. 65.

12. In Spencer, at para. 32, the Supreme Court of Canada clarified that the inquiry is not into whether the will of a detainee has been “overborne” in the sense that they have “lost any meaningful independent ability to choose to remain silent”. Rather, the will of a detainee will be said to be “overborne” if they “would not otherwise have given a statement but [were] persuaded to do so in order to achieve an expected result – to avoid threatened pain or achieve promised gain.”

13. With respect to the circumstances surrounding the interview, relevant factors include (but are not limited to) any circumstances amounting to oppression (e.g. excessively long interview without affording the accused opportunities to eat or sleep), the presence or lack of an operating mind on the part of the accused (e.g. impairment by the consumption of drugs or alcohol), and the presence or absence of police trickery or deception in the conduct of the interview: Oickle, at paras. 58-67; R. v. Van Wyk (1999), 6 M.V.R. (4th) 248, at paras. 142-143, 167; R. v. Garnier, at paras. 59-60.

14. Apart from the inquiry into the operating mind of the accused, which is not at issue in the case before me, the focus of the voluntariness analysis is primarily on the conduct of the police. If an accused person is motivated to give a statement to the police based on a self-generated hope of advantage, that has no bearing on the voluntariness of the statement because it was not obtained by anything said or done by a person in authority: Garnier, at para. 39. As Laskin C.J.C. stated in Hobbins v. The Queen (1982), 1982 CanLII 46 (SCC), [1982] 1 S.C.R. 553 at para. 8, “an accused’s own timidity or subjective fear of the police will not avail to avoid the admissibility of a statement or confession unless there are external circumstances brought about by the conduct of the police that can be said to cast doubt on the voluntariness of a statement.”

15. The intention of the interviewing police officer is a relevant consideration in determining whether a threat or improper inducement was made, but it is not determinative. The effect of the officer’s words and conduct on the accused’s ability to exercise their free will is what matters. The test is objective, but the individual characteristics and circumstances of the accused must be considered in applying the test: Singh, at para. 36.

16. Relevant personal characteristics and circumstances may include the accused’s age at the time of the interview, their level of education, their fluency in the language in which the interview is being conducted, their mental health, their level of cognitive function, their prior experience (if any) dealing with police, their level of education (including whether they were educated in Canada and have any knowledge of Canadian law), and their Indigeneity (where applicable): Van Wyk, at paras. 142-143, 156; Wabason, at para. 20; Othman, at paras. 21-22; Brokenshire, at para. 95. This is not an exhaustive list. Police officers should be mindful of an accused’s personal circumstances and particular vulnerabilities, and should conduct interviews accordingly.

EVIDENCE AND FINDINGS OF FACT

Mr. Refaeh’s Personal Characteristics and Circumstances

17. The accused in this case, Mr. Refaeh, was 19 years old on the date of the police interview. He had no record of prior convictions. Although he had a previous interaction on the phone with Sergeant Gordon about an unrelated incident, he had never before been interviewed by the police as a suspect in a criminal investigation.

18. There is no evidence with respect to Mr. Refaeh’s level of education, but he appears well-spoken and bright on the video recording of the interview. I would not characterize him as “sophisticated”, but his lack of sophistication stems from his youth and inexperience with the criminal justice system, not from a lack of intelligence or education. I would not describe him as savvy, but nor would I describe him as impressionable.

Circumstances Surrounding the Interview

19. The Defence concedes that Mr. Refaeh was properly cautioned and exercised his right to speak to counsel prior to the interview. To the extent that he was initially unsure about some of the charges against him, Sergeant Gordon took the time to explain them to him and to confirm that he understood before proceeding with the interview.

20. The interview was conducted in a room within the cell block at the police detachment. From what can be seen on the video recording, the room is small but not cramped. It is well lit and appears to be windowless. The walls of the room are painted white cinderblock, and the furniture is steel and is fixed to the floor. Sergeant Gordon provided Mr. Refaeh with a cushioned office-type chair on casters, rather than requiring him to sit on the hard surface of the small, fixed steel stool. Sergeant Gordon also provided Mr. Refaeh with a blanket because the temperature was cool in the cell block, and Mr. Refaeh was dressed in only a t-shirt and shorts. Sergeant Gordon gave Mr. Refaeh the option of having the door remain open or closed, and it was left partially ajar.

21. The physical environment in which the interview was conducted was sterile and uninviting, but it was not oppressive. On the video recording, it is obvious that Mr. Refaeh used the blanket to try to conserve his body heat throughout the interview, but there is no suggestion that he felt so cold and uncomfortable that he would give a statement just to bring the interview to an end. This is not a case in which the police created such distasteful conditions that a detainee made a stress-compliant statement to escape those conditions: Oickle, at paras. 58-60.

22. The interview was relatively brief. Sergeant Gordon used a calm, conversational tone throughout. He was professional, respectful, and polite. He was direct and did not engage in any interrogation techniques that could be characterized as trickery or deception. The interview was non-confrontational. Sergeant Gordon sat about 6 feet away from Mr. Refaeh because of public health guidelines that were in effect to mitigate the spread of COVID-19 infection. He remained seated throughout the interview and did not use his physical presence to intimidate Mr. Refaeh. This is not a case in which problematic police methods contributed to a detainee’s decision to relent and succumb to pressure to give a statement.

23. Because Mr. Refaeh did not testify in the voir dire, I have no direct evidence as to his state of mind during the interview. Both he and Sergeant Gordon were wearing masks pursuant to public health guidelines, so his facial features are obscured, but his body language and the pattern of his speech do not suggest that he was distraught, fearful, or overly anxious. The only point at which Mr. Refaeh becomes upset is toward the end of the interview, after he has provided his statement and Sergeant Gordon advises him that the police will be seeking a court order that he not be permitted to drive a motor vehicle as a condition of his release on bail. At that point, there is a noticeable change in Mr. Refaeh’s mood and disposition. Prior to that, he seemed relatively relaxed. I expect that he must have been nervous and feeling worried about the legal jeopardy he was facing, but his demeanour did not give rise to any concerns about his emotional or psychological state.

Content of the Interview

24. Near the beginning of the interview, after Mr. Refaeh provides his name and date of birth, Sergeant Gordon asks him, “You understand you’re under arrest right now?” He responds, “Well, I, I’m trying, like I’m not gonna be answering too much.” The officer says, “okay,” and then Mr. Refaeh states, “I won’t be answering until my lawyer is present.” Sergeant Gordon replies, “Well you, your lawyer’s not gonna come here.”

25. The officer then confirms that Mr. Refaeh has spoken to a lawyer and is satisfied with the legal advice that he was given. He also confirms that Mr. Refaeh has had an opportunity to speak to his father. Then the following exchange occurs:

GORDON: Okay. So am I to understand from talking to you to this point, that you’re not saying anything . . .

REFAEH: Honestly . . .

GORDON: … about, about this ? Cuz there’s, and I’m not, I’m not at all gonna tell you to, to disagree with the advice of your lawyer. You’ve got good advice from a good lawyer, whoever he was.

REFAEH: Mm-hmm.

GORDON: But what I, I want you to understand as well, is that this is your opportunity to tell everybody your side of it, okay? And your side of it as close as it can be to the incident itself. It’s one thing to say this is my side months, maybe even a year down the road at a trial. It’s another thing to say it less than a week after the incident occurred, okay? So I want you to think about that. The, in my opinion, this is, and I’m a police officer. I’m here to investigate.

REFAEH Mm-hmm.

GORDON Right, so that’s, that’s my opinion.

26. The foregoing exchange is the main evidence upon which the Defence relies to argue that there is doubt about the voluntariness of Mr. Refaeh’s statement.

27. Sergeant Gordon then goes on to tell Mr. Refaeh about the progress of their investigation. He tells him that the police have seized his phone and will be obtaining a warrant to look at the data on the phone, that they have executed a search warrant at his parents’ residence and have seized the BMW that he was driving prior to the accident, and that they are aware that he started driving a different vehicle after the accident. He also tells Mr. Refaeh that the police have been gathering video and interviewing witnesses and that “the evidence is pointing in your direction.” Then he adds, “and as I say, this is an opportunity for you because all these other people have their perspective on things, right?” Mr. Refaeh responds, “I know.”

28. Next, Sergeant Gordon talks about how he is searching for the truth of what happened on the night of the motor vehicle accident and Mr. Refaeh tells him, “I’m going to be honest with everything I will be asked, I promise of that.” At no point thereafter does Mr. Refaeh refuse to answer any questions, state that he prefers not to speak pursuant to his lawyer’s advice, or do or say anything to invoke his right to silence.

29. The formal investigative questioning begins with Sergeant Gordon asking about the wellbeing of the female passenger who was in Mr. Refaeh’s vehicle on the night of the collision. Then the officer asks for some general information about Mr. Refaeh’s whereabouts on the night in question, before posing more detailed questions about what happened leading up to and following the collision. Mr. Refaeh answers all the questions without hesitation or reservation. At certain points, he volunteers information without being asked specific questions. He appears to be a willing and engaged participant in the interview.

Analysis

30. The Defence argues that the change in Mr. Refaeh’s willingness to speak was brought about by comments made by Sergeant Gordon, which amounted to implied threats and inducements that effectively undermined the advice Mr. Refaeh had received from his lawyer and overbore Mr. Refaeh’s will to choose to exercise his right to remain silent.

31. For the reasons that follow, I reject this Defence argument. I find that the Crown has met its burden of establishing the voluntariness of Mr. Refaeh’s statement to the police. Although I have concerns about some of the comments made by Sergeant Gordon, which could reasonably be interpreted as an implicit quid pro quo, when considered in the totality of all the relevant circumstances, the implied inducement or threat was not so strong as to give rise to any doubt about the voluntariness of Mr. Refaeh’s decision to talk.

32. First, I note that Mr. Refaeh did not ever say that he was refusing to answer all police questions. He merely stated that he would not “be answering too much.” From the very outset of the interview, he indicated a willingness to cooperate to a certain extent and to furnish limited information to the police. It is unclear where he was drawing the line between what he would and would not talk about, but this is not a case in which a detainee who was set on exercising his right to silence was somehow persuaded by the police to speak.

33. The police are permitted to question a detainee despite the detainee’s assertion of his right to silence: Othman, at para. 7. A rule that would require the police to retreat immediately upon a detainee stating that they have nothing to say would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone. In the majority of cases, the police must do something to persuade a suspect that it is in their interest to speak. However, they must not abuse the state’s superior powers over a detainee by persistently ignoring a detainee’s assertion of his legal right to silence to the point of making him feel that his right has no effect and that he must answer police questions: Singh, at paras. 44 and 47; Van Wyck, at paras. 154 and 158.

34. There are several reported cases in which such police persistence contributed to a finding that the will of the accused was overborne. For example, in Othman, the Court of Appeal relied, in part, on the fact that accused was in the interview room for 5.5 hours before he gave an inculpatory statement, and that prior to the statement, he had responded “no comment” to more than 100 questions. In Van Wyk, there were 13 occasions during the police interview when the accused spoke of saying nothing and of the legal advice he had received not to speak to the police. The Application judge held (at para. 157) that, in the global circumstances of that case, the police approach of ignoring the accused’s comments, believing that it was permissible to question him until he said nothing at all, unfairly deprived the accused of his right to choose not to speak. The accused in Van Wyk was in ill health, had not slept for nearly 24 hours, had not eaten dinner the night before, had only a grade 7 education, was naïve and uninformed about Canadian law, and was not fluent in English.

35. The facts of the case before me are very different. This is not a case in which the police systematically broke down a detainee’s reluctance to speak by persistently questioning him in the face of repeated assertions that he wished to remain silent in accordance with his lawyer’s advice. In the circumstances, I am not concerned about Sergeant Gordon’s decision to continue questioning Mr. Refaeh despite Mr. Refaeh’s remark that he was not going to be answering too much and would not be answering in the absence of his lawyer.

36. I am also not troubled by Sergeant Gordon’s remark that, “your lawyer’s not gonna come here.” The officer testified that he meant the lawyer would not be joining them in the interview room in the cell block area. He acknowledged that there was nothing preventing the lawyer from attending at the police detachment to consult with Mr. Refaeh. However, Mr. Refaeh did not, at any time, indicate that he wanted to stop the interview so that he could have a further consultation with a lawyer. I disagree with Defence counsel’s submission that the officer’s comment had the effect of conveying to Mr. Refaeh, “you’re on your own here… so deal with it.” His comments did not have that tenor. He was simply communicating the fact that the accused did not have a right to be interviewed in the presence of his lawyer.

37. In a number of the cases relied upon by Defence counsel, courts found that there was reasonable doubt about the voluntariness of a detainee’s statement in circumstances where the interviewing officer conveyed to the accused that the interview was the only opportunity they would have to convey their account of the events. In Wabason, for example, the police said to the accused, “the net’s closing here and the time to talk is now with me in this room because this is an opportunity that’s not gonna come again, so rest assured the decisions you make now are gonna be affecting the rest of your life.” In Othman, the police said, “[s]o when that goes and gets played in court and you don’t get a say, you don’t get an opportunity to ever say your side of the story and you get convicted of murder” (emphasis omitted). Such statements are not only misleading as to the law, thereby potentially undermining any legal advice that the accused may have received, they also amount to both an improper inducement and a threat: suggesting that there is a legal benefit to be gained by speaking to the police at that stage, and increased legal jeopardy that would flow from a decision not to speak: Wabason, at paras. 13-14.

38. Defence counsel acknowledges that the facts of this case are different. Sergeant Gordon did not, at any time, convey to Mr. Refaeh (either explicitly or implicitly) that the police interview would be his only opportunity to give his side of the story about what happened. Rather, Defence counsel submits that the message conveyed by the officer was, “you’ll have other opportunities, but there’s a difference between the opportunity you may have at trial, and the opportunity that you have now.” I agree that is a fair interpretation of the following words used by Sergeant Gordon: “It’s one thing to say this is my side months, maybe even a year down the road at a trial. It’s another thing to say it less than a week after the incident occurred, okay? So, I want you to think about that.”

39. Sergeant Gordon testified that he was expressing his view that a statement given in proximity to an incident is probably the best evidence, because memories fade and details are forgotten over time. He said he was trying to communicate his opinion that “close to the incident is the best time to recount an event because it is freshest in your mind,” but he acknowledged that he did not use those words in the interview. He also readily acknowledged that Mr. Refaeh could have preserved his fresh recollection of the events by sharing it in confidence with his lawyer at that time, rather than by giving a statement to the police. Not speaking about the incident at all until trial and speaking about it to the police were not Mr. Refaeh’s only options. I agree with Defence counsel that Sergeant Gordon did not make that clear to the accused.

40. Sergeant Gordon disagreed with Defence counsel’s suggestion that he was trying to convey to Mr. Refaeh that for the purposes of credibility, there would be a benefit to him of giving a statement about what happened at that stage, rather than down the road at trial. However, Sergeant Gordon did not disagree with Defence counsel’s suggestion that he was trying to convey to Mr. Refaeh that it would be a negative for him if he waited until trial before he gave his version. Sergeant Gordon explained, “because facts get forgotten.”

41. I have no basis upon which to question Sergeant Gordon ’s credibility. However, I need not decide whether I believe that was his genuine intent or whether his evidence was disingenuous on this point. My task is not to determine what he meant, but rather to assess the impact of his comments, regardless of intent, on the voluntariness of the accused’s decision to speak to the police. I must make that assessment on an objective basis, taking all the relevant circumstances into account, including the accused’s personal characteristics.

42. Defence counsel submits that Sergeant Gordon effectively conveyed to the accused the message that “if you don’t tell us now what happened and you wait until trial to tell your version, no one is going to believe you then.” It is inappropriate for officers to tell a detainee that he will lose credibility at trial if he does not give a statement to the police, that his credibility is at its highest during a police interview, or that a trial court will take a negative view of a refusal to speak to the police. Such statements amount to both an implied threat (of negative legal consequences if the accused does not speak) and an implied improper inducement (a promise of positive legal consequences if he does speak): Brokenshire, at paras. 93-96; Van Wyk, at paras. 160-168; Othman, at paras. 14-18. Defence counsel acknowledges that Sergeant Gordon did not make any such explicit statements to Mr. Refaeh but argues that a reasonable person in the accused’s position would draw that inference from what he said.

43. There is no evidence about how Mr. Refaeh interpreted the comments. I disagree with Defence counsel’s submission that the only reasonable interpretation of Sergeant Gordon’s remarks, from an objective standpoint, is that he was suggesting the accused would not be believed at trial if he did not tell his story to the police. While it is possible that a reasonable person in Mr. Refaeh’s circumstances might draw that inference from what the officer said, it is not the only available reasonable inference.

44. Another reasonable interpretation would be what Sergeant Gordon said he intended, namely that “it might be hard for you to remember important details in the future, months or a year down the road, so you should give a statement now while the events are still fresh in your memory.” Such a message, conveyed by an officer to a detainee, does imply a potential advantage to making an early statement to police, but it is a relatively innocuous inducement that would not, on its own, be sufficiently strong to overbear a detainee’s will to make a free choice about whether to speak.

45. Sergeant Gordon’s comments could also reasonably be interpreted in other ways. A detainee might think that the officer was obliquely hinting at the possibility of reduced charges or a lighter sentence if he made an early confession. A detainee might also think that the officer was implying that he could spare himself the stress and cost of a lengthy criminal justice proceeding by confessing to the police. Evidently, the officer did not actually say any of those things, but he also did not explicitly make the comments attributed to him by Defence counsel.

46. My point is that Sergeant Gordon’s words were so ambiguous as to be open to a multitude of reasonable interpretations, some amounting to improper inducements or threats, and others being benign. Defence counsel argues that the officer deliberately left it just vague enough that the accused might interpret what he said in a manner that is not consistent with what he claims he intended to convey. I do not share that suspicion about the officer having a nefarious intent. I do not believe that Sergeant Gordon deviously made an ambiguous pronouncement in an effort to convey an improper inducement without doing so explicitly, in the hope that this technique would survive judicial scrutiny.

47. However, I find that Sergeant Gordon’s words effectively conveyed that there would be some unspoken disadvantage to Mr. Refaeh if he didn’t give his version of the events until trial, or alternatively some unspoken advantage to telling the officer his side of the story now. The nature of the advantage or disadvantage was vague and unclear. I reject Defence counsel’s submission that any reasonable person would necessarily interpret his words to mean, “now is the time and if you wait to tell your story, you will pay a price for that at trial.” The tenor of his remarks was not so ominous. However, I accept that a reasonable person might interpret his comments to mean that there was a risk of increased legal jeopardy if they waited until trial to tell their version of the events.

48. To that extent, regardless of Sergeant Gordon’s intent, his words could reasonably instill in a detainee in Mr. Refaeh’s circumstances the hope of some unspecified potential advantage if he gave a statement to the police, or conversely, worry about some unspecified potential disadvantage if he refused to speak. During his testimony, Sergeant Gordon emphasized that he qualified his comments by stating it was just his opinion. Had he implied that a negative outcome at trial would be the inevitable result of failing to speak to the police, that would certainly have been a weightier inducement or threat. But the fact remains that he is a police officer who was conducting an interview of a detainee, and he even reminded Mr. Refaeh of that fact when he stated his opinion. A young inexperienced person like Mr. Refaeh might be inclined to give more weight to the opinion of an officer.

49. For all the above reasons, I find that the effect of Sergeant Gordon’s remarks was to imply a subtle quid pro quo. He did not suggest to Mr. Refaeh that legal advantages or disadvantages would necessarily flow from his decision about whether to make a statement, but his words could reasonably be interpreted to imply that legal advantages or disadvantages might flow. However, the nature of the potential advantages or disadvantages was extremely vague. In my view, the implicit quid pro quo was so ambiguous as to constitute only a weak inducement or impotent threat.

50. I am not required to find that Mr. Refaeh’s will was probably overborne in order to exclude his statement as inadmissible on the basis of involuntariness. The statement will be inadmissible if I have reasonable doubt about whether Mr. Refaeh would not otherwise have given the statement but was persuaded to do so to achieve some expected desirable result, or, to avoid some undesirable result. Based on the totality of the evidence, I have no such doubt.

51. There was an implied quid pro quo made by the interviewing officer, but Mr. Refaeh was not offered any inducements and did not receive any threats strong enough to raise a reasonable doubt as to the voluntariness of his statement in the absence of any oppressive circumstances. Moreover, there is compelling evidence that there were other reasons why he changed his mind about not answering the officer’s questions.

52. Mr. Refaeh never expressed a desire to remain silent. Rather, he initially stated that he would not be answering much until his lawyer was present. He was then advised that the interview would not be conducted in his lawyer’s presence. That fact alone would have required him to reconsider his decision about whether to participate in the interview. At no point thereafter did he assert his right to remain silent or indicate any reluctance to answer questions. Indeed, when Sergeant Gordon asked him directly, “[s]o am I to understand from talking to you to this point, that you’re not saying anything about this?”, Mr. Refaeh did not respond affirmatively. He simply said, “Honestly …” and stopped speaking to allow Sergeant Gordon to finish what he was saying.

53. Mr. Refaeh was then confronted with details of what the police had been doing as part of their investigation. He was told that both his cell phone and his car had been seized. He was also told that the police were aware he had been driving a different vehicle since the collision. Sergeant Gordon told him, “While police are accused of being lazy and stupid lots of times, we haven’t been sitting around just waiting for you to show up. You know, it’d be nice had you.” Mr. Refaeh responded, “I would have showed up.” That’s the first moment when Mr. Refaeh offered substantive and potentially inculpatory information. That statement was not prompted by the Sergeant’s impugned remarks (i.e., the implicit quid pro quo discussed earlier), but rather by the accused learning that the police had gathered evidence with which to prosecute him.

54. The officer then continued to highlight the fruits of their investigation. He told Mr. Refaeh that they had been interviewing witnesses and gathering video, and that the evidence was pointing in his direction. Sergeant Gordon also told him that there are some people who are critical of him. He said, “this thing that happened last Saturday at 8:13 is a problem for you”, and he asserted that all he really cares about is finding the truth. Mr. Refaeh then stated, without being prompted by a question, “that’s what I’m here for … a hundred percent honest.” He added, “I’m going to be honest with everything I will be asked, I promise of that.”

55. It was the accused’s perception of the strength of the evidence mounting against him that prompted him to indicate a willingness to answer questions. The accused’s subsequent answers to the officer’s questions did not owe their origin to any fear of prejudice or hope of advantage created by the officer’s earlier comments.

56. In order to raise a reasonable doubt about the voluntariness of a detainee’s statement, the impugned police conduct, or comments need not be the only trigger for the detainee’s decision to speak: Singh, para. 43. Based on the totality of the evidence in this case, I am satisfied beyond a reasonable doubt that the officer’s impugned comments were not a factor in Mr. Refaeh’s ultimate decision to answer the officer’s questions. “There must be a causal connection between the hope of advantage or fear of prejudice held out in the giving of the statement before the statement can be said to have been ‘obtained’ thereby”: R. v. Schur (1993), B.C.A.C. 164 (C.A.), CarswellBC 990, at para. 7, leave to appeal refused, [1993] S.C.C.A. No. 282. The Crown has persuaded me beyond a reasonable doubt that no such causal connection exists in this case.

57. I am therefore granting the Crown’s voluntariness Application. I find that Mr. Refaeh’s statement to the police is admissible into evidence in the trial.

NOTE: These reasons for decision will not be released until after the jury has rendered its verdicts in this case.

Justice Cynthia Petersen

Released: December 6, 2023

COURT FILE NO.: CR-22-715-00

DATE: 20231206

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

- and -

ADNAN REFAEH

REASONS FOR DECISION ON VOLUNTARINESS

Petersen J.

Released: December 06, 2023