COURT FILE NO.: 18-7916
DATE: 2023/01/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
– and –
Tyler Hikoalok
Accused
Brian Holowka and Lisa Miles for the Crown
Michael Smith and Brook LaForest for Mr. Hikoalok
HEARD: August 8, 9, 11 and 12, 2022
RULING ON VOLUNTARINESS APPLICATION AND S. 10 (B) OF THE CHARTER
London-weinstein j.
History of the Application:
[1] Tyler Hikoalok is charged with the first-degree murder of Elisabeth Salm. The homicide is alleged to have occurred on May 24, 2018 at the Christian Science Reading Room at 141 Laurier Avenue, Ottawa. I previously ruled that the utterances and formal statement of Tyler Hikoalok were voluntary and that police did not violate s. 10(b) of the Charter. These are my reasons for those rulings.
Background:
[2] This trial was initially scheduled to be heard in front of Justice Laliberté who heard the voluntariness voir dire. Voluntariness was conceded by the defence, not Mr. Smith or LaForest, but another lawyer in the firm. This concession was made at the conclusion of the Crown presenting evidence on the voluntariness voir dire and making submissions.
[3] Justice Laliberté indicated his reasons for agreement with this concession by the defence. However, he became unable to conduct this trial and a mistrial was declared. The matter was reassigned to this court. The defence indicated that it wished to relitigate the issue of voluntariness and intended to call fresh evidence on the voluntariness voir dire. In reasons released separately I permitted the defence to litigate the issue of voluntariness a second time. The court was advised at the time that s. 10(b) of the Charter remained a non-issue and would not be litigated.
[4] The second voluntariness voir dire proceeded before me. No fresh evidence was called by the defence. On the last day of the voluntariness voir dire, counsel indicated for the first time that the defence now wished to contest not only voluntariness, but also an alleged breach of s. 10(b) of the Charter. The Crown objected to the last-minute notice of the Charter application.
[5] A trial judge must be cautious before dismissing an application regarding an alleged Charter violation simply due to a failure by counsel to comply with notice requirements, especially in a case as serious as this one. The late notice did cause prejudice to the Crown. However, this prejudice could be remedied by permitting the Crown to recall certain witnesses and by granting a short adjournment prior to jury selection.
[6] The application had sufficient merit to justify it being heard. The accused was 18 years old at the time of the offence. The charge is the most serious in the Criminal Code. While the history of this matter involved some delay, the court cannot lose sight of the need for trial fairness to all parties and to the trial process. Given the importance of the issue to Mr. Hikoalok’s defence and the ability to control the prejudice to the Crown and the administration of justice, I permitted the s. 10(b) Charter application to be argued and the matter was briefly adjourned to permit the Crown to recall certain witnesses.
Utterances upon arrest, post arrest and formal statement at the police station:
[7] Tyler Hikoalok made utterances to members of the Ottawa Police Services surveillance team when he was arrested on May 27, 2018. There was a five-minute delay in administering the right to counsel which the officers testified was due to immediate officer and public safety concerns. The accused made further utterances to Constable Jason Trevis post-arrest. These utterances were made by Tyler Hikoalok without any prompting or questioning by police.
[8] Lastly, the accused gave a statement to Sgt. Chris O’Brien at the police station.
[9] For the following reasons, I found that the utterances made by Mr. Hikoalok to the surveillance officers and Constable Trevis were voluntary and police did not breach s. 10(b) of the Charter. I also found the statement the accused gave to Sgt. Chris O’Brien was voluntary and police did not violate s. 10(b) of the Charter.
[10] I propose to first deal with the s.10(b) Charter issue relating to the utterances made by the accused upon arrest. I will then deal with the voluntariness of those utterances. Finally, I will explain my reasons for finding that the formal statement made to Sgt. Chris O’Brien was both voluntary and that police did not violate the accused’s s. 10(b) Charter right.
The Facts:
Evidence of Constable Steve Luchies and Constable Natasha Norman
[11] Tyler Hikoalok was being observed as he walked along Rideau Street in the late afternoon on Sunday, May 27, 2018 by surveillance officers Steve Luchies and Natasha Norman. He was arrested at the corner of Rideau Street and Nelson Street in downtown Ottawa.
[12] Rideau Street is a central street in the city and is usually busy. This warm spring day was no exception. Cars drove by the officers when they detained the accused. Pedestrians could walk through the scene of arrest.
[13] Both officers were experienced, having each served for about 20 years at the time of arrest. The surveillance team consisted of six plainclothes officers in unmarked cars. The officers wore vests emblazoned with the word POLICE and carried their use of force options, including firearms.
[14] Sgt. Coady advised the team at 4:32 p.m. that the accused could be arrested for first degree murder and sexual assault. Constable Luchies and Norman arrested him at 4:37 p.m. Constable Luchies provided the accused with his right to counsel at 4:42 p.m.
[15] Nelson Street is a dead-end road with a concrete barrier at the end which bars vehicular traffic.
[16] When Constable Luchies identified himself as a police officer and placed Tyler Hikoalok under arrest for first degree murder and sexual assault. Tyler Hikoalok said: I was black out drunk a couple of days ago.
[17] In a separate utterance he then said: I did not know I killed somebody. I was black out drunk and I woke up on the sidewalk. He then mumbled something which Cst. Luchies could not understand. Tyler Hikoalok then said: What the fuck is wrong with me?
[18] Cst. Luchies advised Tyler Hikoalok that he should be quiet as he had not yet read him his right to counsel. The utterances by the accused were not uttered all at once, but intermittently. The accused would stop speaking, and then speak again and then stop. He continued to speak after Cst. Luchies told him to be quiet.
[19] While Constables Norman and Luchies took control of the accused, other officers assumed responsibility for controlling pedestrian and vehicular traffic.
[20] Cst. Luchies moved Tyler Hikoalok from busy Rideau Street to the less busy Nelson Street. The officer cited concerns regarding officer and public safety as necessitating the brief delay in providing the right to counsel while the accused was moved the short distance from Rideau Street to Nelson Street.
[21] I found these safety concerns were grounded in the specific facts of this case and were not theoretical or general in nature. Pedestrians could walk through the arrest scene on Rideau Street. This posed a safety hazard to the officers and to the public. Tyler Hikoalok was also not alone when he was arrested. He was with Isaiah Brown and an unnamed female at the time of arrest. Isaiah Brown was a taller individual than Tyler Hikoalok. He carried a skateboard and a duffle bag. Isaiah Brown caused a scene when police arrested the accused, according to officer Jamie Turner. Mr. Brown was yelling what the officer described as “street” legal advice to Tyler Hikoalok. Mr. Brown tried to move into the area where Cst. Norman and Cst. Luchies were arresting Tyler Hikoalok.
[22] Cst. Turner stepped between Mr. Brown and Tyler Hikoalok. He prevented Mr. Brown from moving toward Mr. Hikoalok. Mr. Brown demanded to know the officer’s badge number and began filming the arrest with his phone. After remaining on Rideau Street for the minute or two required to place Tyler Hikoalok under control by arresting him and placing him in handcuffs, the officers walked Tyler Hikoalok around the corner to Nelson Street. A pat-down search was conducted which took slightly longer than usual as the accused was wearing multiple layers of clothes. The right to counsel was then provided.
[23] I found as a fact that the concerns regarding officer and public safety were genuine and arose from the specific facts of this case. I accepted the officer’s evidence that it would be unsafe to attempt to provide the right to counsel on busy Rideau Street, with pedestrians walking through the arrest scene, and Mr. Brown becoming agitated and beginning to make a scene. Cst. Luchies also indicated that since police were also clearly identified by the vests they wore, he had a concern that police may be targeted by those who may feel antipathy toward two officers arresting a young Indigenous person. I accepted his evidence on this issue.
[24] The accused’s head was down, and he appeared to be emotionally flat. He had no difficulty communicating with police. He was very cooperative and responsive to instructions. It appeared to Cst. Norman that the accused was talking or muttering to himself. Neither officer observed any sign of alcohol or drug use. Officer Norman said she would have noted any signs of intoxication if present. There were no threats or inducements made.
Legal Analysis: Section 10(b) of the Charter
[25] Section 10(b) of the Charter stipulates that “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, the Supreme Court made clear that without delay means immediately and not as soon as practicable.
Was s. 10(b) of the Charter breached?
[26] Once an individual is detained, s. 10(b) of the Charter is engaged and guarantees an individual the right to retain and instruct counsel without delay and to be informed of that right. Once engaged, s. 10(b) imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay: Suberu, para 38.
[27] The implementational obligation imposed on the police under s. 10(b) requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so: Suberu, para 38.
[28] A situation of vulnerability relative to the state is created at the outset of detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is affected: Suberu, para 41. In order to protect against the risk of self-incrimination that results from the individual being deprived of their liberty by the state, and in order to assist them in regaining their liberty, the phrase “without delay” has been interpreted to mean immediately: Suberu, para 41. However, the requirement that the right to counsel be provided immediately upon detention is subject to concerns for officer safety: Suberu, para 42.
[29] While concerns about officer or public safety can permit a delay in providing right to counsel, those concerns must not be general concerns which would exist in every case but must be real concerns which exist in the specific context of the case at hand, to which the officer has turned his or her mind at the time of arrest. R. v. Rover, 2018 ONCA 745, 143 OR (3d) 135 at para 27, 32-34.
[30] The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination: Rover, para 28, citing R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101 at para 78.
[31] Cst. Luchies had specific concerns regarding officer and public safety related to the location of the arrest which caused him to briefly delay administering the right to counsel to the accused.
[32] Cst. Luchies also provided other reasons for not immediately providing the right to counsel upon detention. He testified that he wished to provide Tyler Hikoalok with privacy, as the accused was being arrested for first-degree murder and sexual assault. He testified that he also preferred to read the right to counsel verbatim from the back of his duty notebook and he could not do so while he was initially placing the accused under control.
[33] Neither a concern for privacy, nor a desire to read the right to counsel verbatim from a duty notebook justify a delay in administering the right to counsel. The charge itself was announced when the accused was arrested on Rideau Street, therefore the privacy rights of the accused would already have been somewhat compromised.
[34] It is understandable that the officer would wish to ensure that the right to counsel is administered correctly by reading verbatim from his duty officer notebook, especially given the gravity of the charge, however this is not a valid reason for a seasoned officer to justify a delay in providing the accused with his right to counsel.
[35] The officer has 20 years of experience. He could have provided the right to counsel from memory, immediately upon detention and repeated it from his duty notebook verbatim once he had Tyler Hikoalok in a place where officer and public safety were no longer an issue. However, being able to read to the right to counsel to the accused verbatim from his duty notebook was not his primary concern. He testified that he had concerns for the safety of himself, his fellow officer and the public due to the busy location of the arrest.
[36] However, despite the officer testifying that he had various reasons for delaying the administration of the right to counsel which I found did not justify a delay in administering the right to counsel immediately, I accepted that his reasons included a genuine concern both for officer safety and public safety. It was also apparent from his evidence that officer safety was his primary concern.
[37] Police may delay providing access to counsel only after turning their mind to the specifics of the circumstances and concluding on some reasonable basis that police or public safety or the need to preserve evidence justify some delay in granting access to counsel. Even when those circumstances exist, the police must take reasonable steps to minimize the delay in accessing counsel: Rover, para 27. On the specific facts before me, I found that police turned their mind to the specific safety concerns posed by the location of the arrest and the presence of Mr. Brown, and that it was reasonable to conclude that officer and public safety required a brief delay in providing the right to counsel. The steps taken by police to minimize the delay by merely moving Mr. Hikoalok to a quieter and safer location before providing the right to counsel was a reasonable decision on the specific facts of this case.
[38] I found that the arresting officers in this case had case-specific concerns for officer and public safety. I found that the few moments it took to move the accused to a less busy street was a reasonable step by police to address genuine safety concerns on the specific facts of this case. The delay in providing the right to counsel and access to counsel was brief and police did not seek to elicit information from Tyler Hikoalok. Cst. Luchies told Mr. Hikoalok to stop talking as he had not yet read his right to counsel. The accused continued to speak and continued to communicate with police after being read his right to counsel by the officer.
[39] The defence provided me with a number of authorities regarding delay in administering the right to counsel by members of the Ottawa Police Service. I reviewed all of them. Cst. Luchies testified that the right to counsel should be provided as soon as practicable, or possible, not immediately. He is an experienced officer and should be aware that he is required to provide the right to counsel immediately upon arrest or detention. Suberu was decided over a decade ago.
[40] The defence points to an alleged systemic problem with police failing to provide the right to counsel immediately to persons under detention. On the facts of this case, I did not find it necessary to determine whether such a systemic issue exists with the Ottawa Police Service.
[41] The cases provided are distinguishable. In this case, I found police had case-specific concerns regarding officer and public safety necessitating a five-minute delay in the administration of right to counsel. In the circumstances of this case this conduct was reasonable.
[42] In none of the cases provided did the officer express a context-specific concern regarding officer safety or public safety which would justify a suspension of the administration of the right to counsel. I did not find there was a breach of s. 10(b) of the Charter. Therefore, I did not find it necessary to determine whether there was a systemic pattern of Ottawa police officers failing to provide the right to counsel immediately upon arrest.[^1]
[43] The accused was read his right to counsel from the back of Cst. Luchies’ duty notebook. The accused was asked if he understood and replied, yes. The officer testified that Tyler Hikoalok understood what was being said to him.
[44] The accused was read the primary caution and when asked if he understood, indicated, yes. He was read the secondary caution. He indicated his understanding of this caution.
[45] After being provided his right to counsel and cautions, Tyler Hikoalok continued to repeat: “I did not know I killed anybody.” He appeared sad. This occurred after he had been read his right to counsel, and after Cst. Luchies had earlier told him to be quiet until he had a chance to read his right to counsel.
[46] In conclusion, I found that the arresting officers turned their mind to the officer and public safety concerns arising from the facts in this case and made a decision to move Mr. Hikoalok to a safer location to provide him with the right to counsel once he was under control and handcuffed. The officers made no attempt to question Mr. Hikoalok or to elicit any information from him. The officer told him to be quiet until his right to counsel could be provided. The delay was five minutes in length, including the time to search Mr. Hikoalok, cuff him and move him the few steps around the corner to a quieter location. In my view, police acted reasonably in this case, and the officer and public safety concerns cited provided a valid reason to briefly suspend the administration of the right to counsel.
[47] Tyler Hikoalok was permitted to speak to counsel by telephone after he arrived at the Ottawa Police Station and before police questioned him. He also spoke to counsel in person prior to being interviewed. Prior to being taken to the police station, Constable Jason Trevis again provided him with the right to counsel and provided him with the primary and secondary cautions. He indicated that he understood his rights.
[48] Counsel took no issue with s 10(a) of the Charter.
Utterances to Cst. Jason Trevis:
[49] Mr. Hikoalok was turned over to Cst. Trevis at 4:45 p.m. Cst. Trevis again provided Tyler Hikoalok with his right to counsel and cautions and placed him in the rear of his police car. Mr. Hikoalok indicated twice that he understood what he was being told when asked. Cst. Trevis drove him 3 km to the police station on Elgin Street. He did not ask Tyler Hikoalok any questions. However, Tyler Hikoalok asked the officer how much time do people get for first-degree murder. The officer answered his question.
[50] The accused also advised the officer that the officer should not be typing on his Mobile Data Device while driving. While they were waiting in the sally port area, the accused slammed his head into the back seat partition twice and yelled: “What the fuck. I am getting charged with murder.” The officer provided the accused with his right to counsel and both primary and secondary caution. He did not question the accused or seek information from the accused. There was no breach of s. 10(b) of the Charter in relation to the utterances made to Cst. Trevis.
Voluntariness of the utterances to arresting officers and Cst. Trevis:
[51] I turn now to a discussion of the voluntariness of the utterances made by the accused to the arresting officers and Cst. Trevis. It must be borne in mind that while the accused made these statements to police, the utterances were made spontaneously, and not as a result of any police questioning.
[52] A confession is not admissible if it is made under circumstances that raise a reasonable doubt as to the voluntariness on the part of the person making the admission. R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. The inquiry is contextual and mandates a consideration of “the making of threats or promises, oppression, the operating mind doctrine and police trickery.” R. v. Spencer, [2007] 1 S.C.R.
[53] A more in-depth consideration of the factors impacting voluntariness is discussed when dealing with the formal statement to Sgt. O’Brien. In relation to the utterances to the arresting officers and Cst. Trevis, I found that the Crown had established beyond a reasonable doubt in light of all of the circumstances, that the will of the accused was not overborne by any inducements. There were no threats or promises, oppressive circumstances, or the lack of an operating mind. There was no police trickery that unfairly denied the accused the right to silence. There was no quid pro quo.
[54] The accused was cautioned by Cst. Luchies and Cst. Trevis. None of the officers observed any evidence of impairment by alcohol or drugs. The evidence of the officers was that the accused was responsive to questions asked of him. He had an operating mind.
There were no oppressive circumstances at the time he was arrested and transported. None of the officers made any promises, threats or inducements. There was no quid pro quo. The accused spontaneously spoke to police in the absence of any questioning. His will was not overborne causing him to speak to police. No police trickery was employed. Considering all of the factors relevant to voluntariness, and all of the circumstances surrounding the utterances, I concluded that the voluntariness of these utterances to the officers who arrested and transported Tyler Hikoalok was established beyond a reasonable doubt.
Statement to Sgt. O’Brien: There was no s. 10(b) Charter breach
[55] Cst. Trevis read Tyler Hikoalok’s his right to counsel and cautioned him at 4:47 p.m. At approximately 5:11 p.m. the accused was brought to the Ottawa Police Service detachment. He spoke to defence counsel by phone at 6:01 p.m. and in person at 6:37 p.m.
[56] At around 10:38 p.m. Tyler Hikoalok was brought into an audio and video recording room for his interview with Sgt. Chris O’Brien from the Major Crime Unit. The interview lasted three hours and 48 minutes.
[57] At the outset of the interview, Sgt. O’Brien advised Tyler Hikoalok three times that he had the right not to say anything. Sgt. O’Brien confirmed with Tyler Hikoalok that he had spoken with his lawyer and that he understood his right to remain silent.
[58] The defence, relying and expounding on principles discussed in R. v. Lafrance, 2022 SCC 32 argued that police failed to consider the subjective characteristics of the accused as a youthful Inuk offender which impacted his ability to comprehend the rights which were read to him by the officer. However, having reviewed all the evidence surrounding the making of the statement, I was satisfied that Tyler Hikoalok clearly understood the right to counsel and his right to remain silent. He repeatedly advised the officer that he wished to follow the advice of his lawyer, which was to remain silent. It was clear from his interactions with Cst. Luchies and Norman that he understood he was being charged with first-degree murder and sexual assault. He indicated he understood the cautions provided.
[59] An example of his comprehension was exhibited during the interview with Sgt. O’Brien, when the officer was initially trying to ensure that Tyler Hikoalok had spoken to counsel and understood the charge. The accused continually asserted that his lawyer had told him not to say anything. It was clear he understood his right to counsel and the right to remain silent. Sgt. O’Brien also has experience conducting investigations in Inuk communities. Having reviewed the statement, I do not see any basis to conclude that Sgt. O’Brien failed to appreciate subjective characteristics related to the accused which undermined the accused’s comprehension of his rights. The accused was young and Inuk. However, he also clearly and repeatedly demonstrated that he understood his rights and asserted them. He had prior dealings with police, albeit as a youth.
[60] Toward the end of the interview the accused said he was tired and wanted to speak to his lawyer again. Sgt. O’Brien declined to let him speak to his lawyer again. I do not find that there were new procedures, a change in jeopardy or a reason to believe that the legal advice received was deficient which may trigger a requirement that police provide the accused with an additional opportunity to consult with counsel. See R. v. Sinclair, 2020 SCC 35, [2010] 2 S.C.R. 310 and R. v. Dussault, 2022 SCC 16 para 29. I did find that Sgt. O’Brien’s comment regarding integrity being at its highest in the police interview, coupled with a later reference to participants in the trial, including the judge seeing the statement was somewhat problematic for reasons which I will explain under the rubric of voluntariness. I found that the statement was proven voluntary beyond a reasonable doubt, despite the officer’s comments.
[61] I considered whether these comments suggesting integrity is highest in a police interview and that the statement would be seen by the judge and others undermined the legal advice of counsel. I concluded that Sgt. O’Brien did not cross that line. However, he failed to tell the accused that the Crown had to prove the voluntariness of the statement beyond a reasonable doubt before it could be viewed at trial.
[62] Where the conduct of police has undermined the legal advice that was provided during the first consultation, police must provide the detainee with a second opportunity to consult counsel. Dussault para 29. I found that there was a lack of “objectively observable” indicators that the conduct of the police had the effect of undermining the legal advice provided to the accused, necessitating a further opportunity to consult counsel: Dussault para 29.
[63] In conclusion, I found that there was no breach of s. 10(b) regarding the accused’s statement to Sgt. O’Brien. However, comments about the use which may be made of a statement are best avoided where they may undermine the advice of counsel regarding the right to remain silent. Comments which go beyond moral persuasion and undermine the right to silence should also be avoided. I will now explain why I found the statement to be voluntary.
The statement to Sgt O’Brien was voluntary:
[64] The particularities of an individual suspect are relevant to the voluntariness analysis. In Oickle, the court recognized the need to be sensitive to the particularities of an individual suspect. The court cited White, Welsh S. “False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions” (1997), 32 Harv. C.R.–C.L. L. Rev. 105, at p. 120:
False confessions are particularly likely when the police interrogate particular types of suspects, including suspects who are especially vulnerable as a result of their background, special characteristics, or situation, suspects who have compliant personalities, and, in rare instances, suspects whose personalities make them prone to accept and believe police suggestions made during the course of the interrogation.
[65] The court noted this is consistent with the reasons of Rand J. in Fitton, 1956 CanLII 28 (SCC), [1956] S.C.R. 958 at p. 962:
The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or of conversation, all call for delicacy in appreciation of the part they have played behind the admission, and to enable a Court to decide whether what was said was freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them.
[66] In Ward v. The Queen, 1979 CanLII 14 (SCC), [1979] 2 S.C.R. 30 and Horvath v. The Queen, 1979 CanLII 16 (SCC), [1979] 2 S.C.R. 376 the court similarly recognized the particular circumstances of the suspects that rendered them unable to confess voluntarily: in Ward, the accused’s state of shock, and in Horvath, the psychological fragility that precipitated his hypnosis and “complete emotional disintegration” (p. 400).
[67] In R. v Wabason, 2018 ONCA 187, 44 CR (7th) 246, at para. 6, the trial court held that there had been no quid pro quo, that is to say no promise by police that they would do anything in exchange for a statement by the appellant.
[68] In that case, the court found that although the appellant attempted to assert his right to silence numerous times, police repeatedly told him that if he spoke, he would be in less jeopardy, while if he did not speak, he would “take the fall” for a murder he did not commit. On one occasion, for example, the interviewing officer queried: “If I was in your shoes I wouldn’t be taking responsibility for that if I didn’t do it (pause) I mean you really wanna take the fall for something you didn’t do?” Wabason, at para. 12.
[69] Throughout the interrogation, the interviewing officer told the appellant that he did not think the appellant stabbed anyone, but he should not take the blame for something he did not do. He also advised the appellant that he would go down immediately for first-degree murder unless he spoke up immediately: Wabason, at para. 13.
[70] The Court of Appeal found that the statements by the officer were an inducement and a threat. Having found that there was an inducement, the court found that the subjective characteristics of the appellant including the fact he was a young Indigenous person was relevant to the question of whether his will was over borne by the inducement: Wabason, at para 18.
[71] I found that there were no inducements in this case. However, the fact that Tyler Hikoalok is a young Indigenous person, and given all that the interview revealed about his background, I concluded that he was a person who would be vulnerable to the type of pressure exerted by police in Wabason while in detention. However, while I found that the statement in this case was not perfectly executed by police, I was unable to conclude that there was anything approaching the kind of inducement present in Wabason. Of course, a lesser inducement could well serve to render a statement involuntary. However, on the facts of this case I found there were no inducements for reasons which I will explain.
[72] As the court pointed out in Oickle, the confessions rule is not solely focussed on reliability, but rather on voluntariness broadly defined. The application of the confessions rule is of necessity contextual. When reviewing a confession, a trial judge should therefore consider all the relevant factors: Oickle, at para. 71. The judge should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule. The relevant factors include threats or promises, oppression, the operating mind requirement and police trickery. The statement must be looked at in its entirety to determine voluntariness, and not analysed in a piecemeal fashion.
[73] The police may often offer some kind of inducement to the suspect to obtain a confession. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about the voluntariness of the confession: Oickle, at para. 57.
[74] An important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise: Oickle, at para. 56. I will have more to say about the defence’s contention that a quid pro quo was made by Sgt. O’Brien in this case shortly.
[75] Oppressive conditions and circumstances clearly also have the potential to produce an involuntary confession. In assessing oppression, courts should consider whether a suspect was deprived of food, clothing, water, sleep, or medical attention; was denied access to counsel; was confronted with fabricated evidence; or was questioned aggressively for a prolonged period of time: Oickle, at para. 60. The accused in this case was provided with food and beverages and a better fitting jumpsuit. He was provided with bathroom breaks. The room was not too cold. He was tired, but I found he was not tired to the point that his statement was involuntary. In this case, the interview was long, but not unduly so, for a charge of this gravity. The questioning was not aggressive. The officer did not refer to non-existent evidence. I found that there were no oppressive circumstances.
[76] The operating mind doctrine only requires that the accused knows what he is saying and that it may be used to his detriment. Like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule: Oickle, at para. 63. The court is required to determine whether the accused possesses a limited degree of cognitive ability to (1) understand what he is saying and (2) to comprehend that this evidence may be used in proceedings against him. R. v. Oickle, para 63, R. v. Whittle, [1994] 2 S.C.R. 913 at para 45. The test is not whether the accused was capable of making a good or a wise choice, or one that was in his best interests when he chose to speak. There is no requirement that the accused be capable of understanding the consequences of making a statement Whittle, at para 45. The accused was responsive to questions in the interview and clearly understood what was being said. There was no evidence of a lack of an operating mind. On the facts of this case the Crown established that the accused had an operating mind.
[77] Lastly, the police use of trickery to obtain a confession must also be considered in determining whether a confession is voluntary or not. Unlike the other issues related to voluntariness, this doctrine is a distinct inquiry: Oickle, at para. 65. While it is still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system. There may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community. Oickle para 67. In such cases, the confessions should be excluded. I found there was no police trickery in this case.
The Statement to Sgt. Chris O’Brien
[78] The interview itself was just shy of four hours in length. Tyler Hikoalok was provided with food and beverages.
[79] He asked to go to the washroom and was taken when he needed to go. The officer is soft spoken and adopted a kind and empathetic approach to the interview as a technique designed to encourage the subject to speak to him. He was persistent but never raised his voice. There was no hint of oppressive circumstances. He touched Tyler Hikoalok on the leg once when Tyler Hikoalok appeared upset and the accused told him he did not want to be touched as he did not like it. The officer immediately removed his hand. Tyler Hikoalok had an operating mind throughout. There were no threats made.
Promises, threats or inducements:
[80] Tyler Hikoalok indicated on several occasions that he wished to see his brother up north again. Sgt. O’Brien honed in on this reference and questioned the accused about what he would like to do up north. The officer also asked him questions about his family.
[81] The defence argued that the officer’s repeated comments in response to the accused’s repeatedly expressed wish to go and see his brother was used an inducement which overbore the will of the accused and caused him to speak to police. I found that the references fell short of constituting an inducement which overbore the will of the accused.
[82] I was unable to conclude that the references by Sgt. O’Brien constituted a quid pro quo such that the accused would be of the view that if he spoke to police, he could go up north and see his brother. The officer reminded the accused there are consequences for actions. The officer did not say that speaking to the officer would result in him being permitted a trip back home. There are several instances where the theme of going back home emerges throughout the interview.
[83] There is no specific instance where the officer explicitly tells the accused he can go up north if he speaks to the officer.
[84] Tyler Hikoalok states early in the interview that he wanted to go back home. Sgt. O’Brien tells him that he cannot right now. The officer says something obviously happened and he just wanted to figure it out and make sure the accused was okay.
[85] Tyler Hikoalok indicated that he just wanted to go home and see his brother, that’s it. Sgt. O’Brien replied that he wished they could do that right now. He asked: “What did you wanna do when you get back home? Do you have any plans? Like a job you wanna do or anything?” Mr. Hikoalok replied that he would like to do construction. Sgt. O’Brien said: “Yeah, Yeah. Well, Ty, you’re a young man, right? You’re only eighteen years old. You got a lot of life to live yet and there may be time for those things in the future. You know, you’re in a situation right now, yeah, true. But your life’s not over. You got a lot of life to live.” Statement Transcript page 22.
[86] At a later point in the interview the accused again said that he wanted to see his brother. Sgt. O’Brien responded: “I know. You have to get through this first, though Ty. It’s a bad situation. Okay? I don’t wanna lie to you, okay, and I don’t want you to lie to me either. I just want the truth in this room. That’s the only thing I want, the truth of what happened to you, what…what led you to this situation here. That’s all I’m interested in. Did you mean for that woman to die? The officer points out that something really bad happened and they needed to understand why it happened. Statement Transcript page 41 to 45.
[87] When Tyler Hikoalok again indicated that he wanted to see his brother, the officer responded: “Yeah well he is up north right now, right? Believe you me man, I’d love to take you right now and go up and see him. I’d like to take another trip back up north. I haven’t been in a year. I’d love to do that with you right now, but unfortunately, we can’t right? We are here, you and me, and we gotta deal with the situation. We gotta deal with this situation, you and me. It all comes down to this you know, how do you want to carry this….” Statement Transcript page 45 and 46. The accused responded with a non-sequitur, noting that his leg had gone to sleep.
[88] Sgt. O’Brien said: “I wanna help you get past this so that you can move on with your life and maybe get past this so that you can move on with your life and maybe get back up north with your family again at some point. (Pause)…But we have to deal with this first.”
[89] At a later point the accused again said that he just wanted to see his brother. Sgt. O’Brien said that the brother was a long way away and that the accused had a lot of time when he would be able to see his brother again. “You’re young, you’re very young. But we gotta deal with this before we can do that. Is it gonna take time? Yeah, it’s gonna take time. But your eighteen, like I said. There’s a lot of time for you to turn things around, a lot of time. But only you can turn things around, choose to make your life better, to lead a different life. And that all starts today. Only you can make the decision, not me, not…not your lawyer, not anyone else can make the decision for you to turn your life around. That’s your choice, you and you alone, especially now that you’re eighteen years old, you’re a man. You’re considered a man now, a young man but a man. I just wanna be able to say something, you know, to that lady’s family about why this happened. That’s all. I think you owe it to them. (Pause)…Do you want some more water? Or how about…do you like apple juice? No? Do you want another water? I’ll get you one, okay? Statement Transcript page 52.
[90] The accused again said that he just wanted to see his brother, that’s it. Sgt. O’Brien said, “I know. You’re gonna see your brother again. Right now, we gotta deal with this…What is wrong with you Ty? What do you think’s wrong with you? What made this happen? Statement Transcript page 57. The accused gave no response to this question.
[91] The officer asked the accused about his mother and his father. Sgt. O’Brien said: “These are all things that you will be able to do in life Ty, ‘cause you’re young. I’ve met a lot of people who were older than you that catch murder charges. You know, if you were a forty-year-old man or something like that, different story right? You’re getting on in life, but you’re young, you’re young, you got lots of time to turn your life around. You got lots of time to you know deal with this situation take whatever punishments you’ve got coming but you’re gonna be able to get out some day you know? You’re so young you know, and it all begins here today. We have to understand the why, why this happened. You know, I want you to be a good role model to your brother, your two brothers….so you will be able to look them in the face some day and say yeah, you know I had some problems in life, maybe it’s a drinking problem I don’t know, but you were able to move past that and uh, you know deal with this situation like a man. Statement Transcript page 61. The accused gave no response.
[92] I found that these various comments by the officer did not cause the accused to believe that if he spoke to police that he would be permitted to go up north to see his brother. The officer clearly articulated that there would be punishments which the accused would have to face before he could get out and see his family. The accused declined to answer some questions posed by the officer after this exchange. I regarded this disinclination to answer questions at this point as evidence that the accused felt able to refuse to answer questions of the officer and his will was not overborne by these references to seeing his family. The accused also twice accused the officer of lying regarding the name of a youth shelter. This accusation by the accused came toward the end of the interview at page 69 of the statement transcript. The officer assured the accused he honestly could not remember the name of the shelter. I found the accused’s willingness to accuse the officer twice of lying to be some evidence that his will was not overborne by the references to going up north to see his family.
[93] At one point the accused pointed out that police forgot to take his bracelet. He volunteered this information spontaneously; it was not a comment made in response to a question by the officer.
[94] The accused was asked about his drinking and did not feel compelled to answer. He indicated his lawyer told him not to say anything.
[95] I am unable to conclude that these references to going up north to see his family overbore the will of the accused, even given his youth, Indigenous heritage and background.
[96] The statement transcript demonstrates that the accused at times declined to answer questions after these comments by the officer were made. He also at various times indicated that his counsel told him not to speak. He felt comfortable enough to accuse the officer twice of lying to him. When I look at the context of the entire statement, even if these comments did constitute an inducement, which I did not find, I am unable to conclude that the will of the accused was overborne by the officer. The officer specifically told the accused that he had to deal with the matter first and face punishment before he could go up north. I turn now to another issue with the statement which I also found did not render the statement involuntary. Although I have discussed the issues separately due to the structural requirements of writing this ruling, I considered the discussions of going up north, along with the “integrity at the highest” comments, along with all of the other relevant factors, within the context of the entire statement before concluding that the statement was voluntary. I did not engage in a piecemeal analysis of various factors relating to voluntariness but considered all of the factors relevant to determining voluntariness as a whole, in reaching my conclusion.
Integrity is at its highest during police interview:
[97] The officer points out the body of evidence investigators have gathered. He advises the accused that this was his opportunity, where “your level of respect is, your level of integrity is the highest, okay.” Importantly, he does not specify that the accused’s level of integrity is highest in the eyes of the court or the trier of fact. However, the officer later tells the accused that the judge will hear what they discuss. The officer pointed out that only the accused could provide the part that was missing, only he could tell his story. The officer states that he will never understand unless the accused explained to everybody. The officer said, “Cause you know, I’m not gonna keep secret what you and I are taking about right here. Like your lawyer’s gonna get it and all the people that are gonna be involved in this case are…you know lawyers, judges all that sort of stuff, they’re gonna get to hear that story too right? And this is your first opportunity right out of the gate to be a man and explain why you did what you did. Cause I’m sure you got a story okay?’’
[98] In another case involving Sgt. O’Brien, I found that a more extreme version of this particular interviewing tactic rendered a statement involuntary: See R. v. Krzyzewski, 2020 ONSC 6705 para 31 to 38.
[99] In Krzyzewski, I found that Sgt. O’Brien’s comments weaponized the right to silence. The accused in that case was advised that his integrity was at his highest in the police interview and that he may not get a chance to testify at trial, as it did not always happen. I found that this left the accused with the impression that if he did not speak in the police interview, he may never get a chance to speak. Further, the accused was left with the view that if he chose to exercise his Charter guaranteed right to silence, he would not be believed if he chose to later testify at trial as he would have less credibility by virtue of not speaking up in the police interview. I found the officer effectively weaponized the right to silence, overbearing the will of the accuse. I ruled the statement involuntary. I found that these types of comments generally risk the accused being induced to speak out of a fear that his failure to provide information will be adverse to his interests at trial. Mr. Krzyzewski was led to believe that his silence would be insufficient and legally ill-advised.
[100] In this case, any potential undermining of the right to silence was far less overt than in Krzyzewski. I found the comments by the officer in this case fell much closer to permissible moral persuasion. The officer did not suggest that this was the accused’s only opportunity to speak, nor did he suggest that the accused may not be able to tell his side of the story at trial. While he did suggest that the accused’s integrity was at its highest at the point he spoke to the officer, he did not directly indicate that a trial judge would take a dim view of his credibility if he chose to exercise his right to silence. He made no reference to a jury.
[101] He never articulated who regarded his integrity at the highest during the police interview. If it was more clear he was merely speaking for himself as a police officer, the remark would be harmless. In this case he later told the accused that the judge and others in the trial will see his statement. However, he did not say that the judge or jury would see the statement and think less of him for exercising his right to silence. I found the remarks were ambiguous. I was unable to conclude, when I looked at the entire statement in context, that the statement was rendered involuntary by these remarks, or by the references to going up north, or any of the other factors relevant to voluntariness. I considered all of these factors as a whole, and not separately.
[102] However, in my view police are on dangerous ground where they suggest that an accused who asserts the right to silence will be regarded with less integrity by a judge or jury. In this case, s. 7 of the Charter was not expressly argued. However, voluntariness and the s. 7 right to silence are functionally equivalent in the context of a custodial interview. R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48 para 21-25. If a statement taken in a custodial setting is not voluntarily obtained, it will also be obtained in violation of s. 7 of the Charter.
[103] As was made clear in Oickle at para. 71, a determination of whether the Crown has proven voluntariness is essentially a factual one that must be made having regard to all of the relevant circumstances. In making the determination, the Court must be “sensitive to the particularities of the individual suspect”: Oickle at para. 42.
[104] Subsequent to Oickle, in Singh, the court recognized that the modern expansive common law voluntariness rule articulated in Oickle includes the right of a detained person to make a “meaningful choice” whether or not to speak to state authorities. The focus is on the effect of the circumstances and police conduct on the detainee’s ability to freely choose whether or not to speak to police. The test is an objective one; however, the characteristics of the individual are relevant in applying the objective test: Singh at paras. 35-37.
[105] The jurisprudence also recognizes the interrelationship between common law voluntariness, the right to silence, and the right to counsel. In addition to the holding in Singh that in the context of a custodial interview, the right to silence is functionally equivalent to the common law voluntariness, the Supreme Court recognized in Oickle (at para. 60) that denial of access to counsel is a factor that can impact on voluntariness of statements as a type of oppression. This is fitting as a central purpose of the s. 10(b) right is to allow a detainee to obtain legal advice in order to make an informed choice about how to exercise their rights. Key among those rights is the right to choose whether or not to cooperate with police: R. v. Sinclair, [2010] 2 S.C.R. 310, 2010 SCC 35, at paras. 24-26; R. v. Taylor, [2014] 2 S.C.R. 495, 2014 SCC 50, at para. 21.
[106] A remark by a police officer which tends to undermine the right to silence, may also be problematic if it undermines or calls into question the completeness of the advice by counsel. In this case, the officer advised the accused that a judge and others in the trial will see his statement. However, he failed to mention that the statement may prove to be inadmissible or may not even be proffered by the Crown.
[107] In R. v. Azonwanna, 2020 ONSC 5416, 468 C.R.R. (2d) cited in R. v. Dussault, 2022 SCC 16 at para 44 police provided the accused with a misleading summary of the right to silence, namely that it included the right to speak, without reference to the right not to speak. I am not suggesting that what happened in this case is as serious as the conduct of the police in Azonwanna. However, Sgt. O’Brien’s comments regarding the statement are potentially misleading especially when considered with his remark about the integrity of the accused being at its apex in the police interview. A more overt form of this type of comment in another case may necessitate a further opportunity to speak to counsel. Dussault, para 29.
[108] However, as Justice Moldaver pointed out in Dussault, the majority in Sinclair did not expand on the type of police conduct that could “undermine the legal advice the detainee has received” and thereby give rise to a renewed right to counsel: para 36. In this context, care must be taken in defining the term “undermine”. If the term is defined too broadly, it would prevent police from attempting in any way to convince the detainee to act contrary to their lawyer’s advice: see e.g., R v. Edmondson, 2005 SKCA 51, 257 Sask. R. 270, at para 37. If this were so, police would effectively be required to cease questioning any detainee who said, “my lawyer told me not to talk”. That is not the law in Canada: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405. Dussault para 36.
[109] The reference to R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206 at the end of para. 52 in Sinclair illuminates the kind of police conduct that can “undermine” legal advice in the Sinclair sense of that term. Dussault para 37. It suggests that, in this context, police can undermine legal advice by undermining confidence in the lawyer who provided the advice. In Burlingham, the accused was charged with one murder and suspected of a second. He was subjected to an intensive interrogation during which police repeatedly disparaged “defence counsel’s loyalty, commitment, availability, as well as the amount of his legal fees”: para 4. A majority of the Court found those “belittling” comments breached s.10(b) because they were made with the purpose or had the effect of undermining the accused’s confidence in counsel. Dussault, para 37. Undermining legal advice has the same effect. Dussault, para 38. The focus of the inquiry is on the observable effects of the police conduct, rather than on the conduct itself. Dussault, para 44. Legitimate police tactics that persuade a detainee to co-operate without undermining the advice they have received does not trigger the right to reconsult. Dussault, para 45. I found that Sgt. O’Brien was treading on somewhat dangerous ground when he commented on who would see the accused’s statement after telling the accused his integrity was highest in the interview. However, the reference was fleeting and somewhat oblique. I did not find that his conduct in this case went so far as to undermine the advice of counsel in the Sinclair or Dussault sense of the term. The officer’s conduct in this case also fell well short of his conduct in Krzyzewski.
[110] In conclusion, I found that the statement to Sgt. O’Brien was proven voluntary beyond a reasonable doubt. I concluded that the references to going up north when this matter had been dealt with were too ambiguous to constitute a quid pro quo to Tyler Hikoalok, even in light of his particular vulnerabilities including his age and Indigenous background. I found that the references to going up north and the references to integrity being at its highest in the context of the entire statement did not render the statement involuntary even allowing for the accused’s subjective vulnerabilities. I considered all of the strands of information which related to voluntariness together, including the fact there was no oppression, the accused had an operating mind, there was no police trickery and no promises, threats or inducements that would overbear the will of this youthful Indigenous accused.
[111] I concluded that the officer did not suggest that if Tyler Hikoalok spoke to him that he could, as a result, go visit his brother up north. There was no quid pro quo. If I am wrong in this regard, and these comments did constitute a form of inducement, when I look at the entire statement in context, including the comments regarding integrity being at its highest during the police interview and all of the other factors relevant to voluntariness, which I have discussed, I am unable to find that Tyler Hikoalok’s will was overborne. The accused at times chose not to answer certain questions. He made requests of the officer at various times. He reiterated that he was choosing not to speak at times on advice of counsel. He accused the officer twice of lying toward the end of the interview. I say this acknowledging he is a vulnerable person. However, if there was an inducement in this case, it was so mild it did not overbear the will of the accused.
[112] He had an operating mind and there were no circumstances of oppression. There was no police trickery. I was satisfied that despite his young age and the fact that I found him to be a person who could be vulnerable to being overwhelmed by a quid pro quo, the statement was proven voluntary. I considered his vulnerability along with the approach of the officer, which was persistent but gentle along with the overall manner in which the interview was conducted, including all of the factors discussed. I was satisfied that the Crown had proven voluntariness beyond a reasonable doubt.
[113] The officer appealed to the conscience of Mr. Hikoalok by saying the deceased had a husband and a family and that Tyler Hikoalok owed it to her husband and the rest of the family to explain why he had murdered the victim. There is no prohibition against an appeal to the conscience of an accused person. This was a very mild form of appeal and is permissible: See Oickle, at para. 56.
[114] There are a few remaining matters which must be addressed. At one point, Sgt. O’Brien retrieved a better fitting jumpsuit for the accused. He indicated he was going to change into it when Sgt. O’Brien left the room. Unfortunately, Sgt. O’Brien did not realize that Tyler Hikoalok’s underwear had been seized by an identification officer. The camera continued to record Mr. Hikoalok as he changed. Tyler Hikoalok’s buttocks were briefly exposed on camera while he changed.
[115] I accepted Sgt. O’Brien’s evidence that he did not realize that Tyler Hikoalok had no underwear on while the camera was running. However, this was a blow to the dignity of Mr. Hikoalok and more care needs to be taken to ensure this does not happen to another accused person. This portion of the video must not be presented to the jury. Also, the officer indicated repeatedly that police were sure of the accused’s guilt and all that remained to be known is his explanation for committing the homicide. These remarks must be entirely edited out of the statement if it is to be played before the jury. Sgt. O’Brien did not misrepresent the evidence. However, it would unfairly influence the jury to hear an experienced Major Crime officer repeatedly opine of his certainty regarding the guilt of the accused and the overwhelming nature of the evidence. The guilt or innocence of the accused is a matter for the jury to determine. Finally, the officer asked the accused to apologize to the family of the deceased but mischaracterized what the accused said. The accused said he was sorry for what happened. The officer then rephrased what the accused had said to indicate that the accused had said he was sorry for what he did. This segment must be edited from the videotape as it is misleading. Finally, the officer often speaks for long periods of time when the accused is not responding. The jury will have to be cautioned that these statements are not admissible as the evidence of Sgt. O’Brien.
Anne London-Weinstein J.
Released: January 27, 2023
COURT FILE NO.: 18-7916
DATE: 2023/01/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
– and –
Tyler Hikoalok
Accused
ruling on voluntariness application and s. 10 b Charter
Anne London-Weinstein J.
Released: January 27, 2022
[^1]: See for example the following cases. I have not cited them all as it would be redundant: In R. v. Brugger [2019] O.J. No. 4021 (Ont. C.J.) the accused was arrested for impaired driving. Police delayed administering the rights to counsel. The officer did not believe there was any urgency to providing rights to counsel. He also engaged in administrative tasks which were not urgent prior to providing rights to counsel. The evidence was excluded. In R. v. Hancock, 2019 ONCJ 139, a 10 minute delay in providing rights to counsel resulted in the exclusion of evidence. In R. v. Ward, 2019 ONCJ 498 there were no safety concerns at issue and a 9 minute delay resulted in the exclusion of the evidence. In R. v. Toth, [2021] O.J. No. 2350 (Ont. C.J.) an 8 minute delay where the officer also testified he believed rights to counsel needed to be provided as soon as practicable resulted in the exclusion of the evidence. No safety concerns existed. In R. v. Youssouf, [2018] O.J. No. 4439 Justice Gomery found that a delay of 11 minutes and the fact that the accused was never told the reason for the arrest was a breach of s. 10(b) of the Charter. In R. v. Al-Qu’aod, 2019 ONSC 5526, Justice Parfett found on summary conviction appeal that the trial judge’s conclusion that a six minute delay between the arrest and the officer advising the accused of right to counsel due to a lengthy search incident to arrest was reasonable. The case was returned to the trial judge to reconsider the Charter analysis for other reasons.