Court File and Parties

Court File No.: CR-22-50000261-0000 Date: 2024-06-25 Ontario Superior Court of Justice

Between: His Majesty The King – and – Moesha Woodley

Counsel: Brigid McCallum, for the Crown Christopher Morris, for the Defendant

Heard: May 13 – 15, 2024

Before: Schabas J.

Reasons on Motion to Admit Statements

[1] The defendant, Moesha Woodley, is charged with a number of offences arising out of an investigation into human trafficking. Her trial is set to commence in September, 2024. The Crown wishes to adduce evidence of statements made by the defendant and brings this application for a pre-trial ruling on the admissibility of those statements.

[2] For the reasons that follow, I conclude that the statements were made voluntarily by Ms. Woodley and are admissible.

The legal framework

[3] The Crown seeks to rely on statements made by Ms. Woodley during her interaction with the police on February 25, 2021 and in her interview following her arrest on March 25, 2021. Although there is some question as to whether all of Ms. Woodley’s statements on February 25, 2021 were made to police officers, some were, and all of the statement on March 25, 2021 was made to police officers. As those statements were made to “persons in authority”, the Crown must prove beyond a reasonable doubt that the statements were made voluntarily.

[4] The voluntariness rule was discussed by the Supreme Court of Canada in R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, and was summarized in R. v. Spencer, [2007] 1 S.C.R. 500, 2007 SCC 11 at paras. 11-12 as follows:

At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily. This Court set out the test for ascertaining the voluntariness of such statements in Oickle. That case "recast the law relating to the voluntariness of confessions ... It rejected resort to fixed and narrow rules": D. M. Paciocco and L. Stuesser, The Law of Evidence (4th cd. 2005), at p. 290. As Iacobucci J. explained in Oickle, at para. 27, the rule "is concerned with voluntariness, broadly understood". He also emphasized that a contextual approach is required (at para. 47):

The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and "should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule" (Oickle, at para. 63). On the other hand, the use of "police ... trickery" to obtain a confession "is a distinct inquiry ... [given that] its more specific objective is maintaining the integrity of the criminal justice system" (para. 65). [Emphasis added]

[5] Determining whether the Crown has proven voluntariness must be made having regard to all of the relevant facts, including being “sensitive to the particularities of the individual suspect”: Oickle at para. 42. The test, however, is an objective one.

[6] In R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48, at paras. 35-37, the Supreme Court recognized that the modern approach to voluntariness stated in Oickle involves considering whether a detained person had a “meaningful choice” whether or not to speak to the police or not. The detainee must have the ability to exercise his or her free will to choose whether to not to speak to police. As put in Oickle, at para. 57, the issue is whether police conduct is such that it raises a reasonable doubt about whether “the will of the subject has been overborne.”

[7] The voluntariness rule stems from the concern that statements made involuntarily, whether as a result of threats, or promises, or inducements, or oppressive circumstances, or trickery, are not reliable. However, it also involves consideration of fairness and the protection of an accused’s rights in the criminal process: Oickle at para. 69; Singh, at para. 35.

[8] This does not mean, however, that the police cannot be persistent in their questioning of suspects and attempt to persuade them to speak. As Fairburn J. (as she then was) stated in R. v. Brown, 2015 ONSC 3301 at paras. 87 – 88:

The contemporary voluntariness or confessions rule attempts to strike a balance between the interests of the accused and society in avoiding false confessions, while at the same time ensuring that the societal interest in the effective investigation of crime is met. As noted by Iacobucci J. in Oickle, at para. 33: “All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of either of these objectives.” See also: Singh, at para. 45.

Both the constitutional right to silence and the common law voluntariness rule permit a certain amount of police persistence and persuasion in obtaining a statement: R. v. Hebert, [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, at paras. 73, 110, 130 [Hebert]. While an individual has a right to remain silent, she does not have a right not to be spoken to by the police: Singh, at para. 28. Police persistence, and attempts to persuade an individual to speak, will not automatically transgress the s. 7 right to silence or the voluntariness rule. Indeed, Mr. Singh asserted his right to silence on 18 occasions, followed each time by further questions by the police and attempts to persuade him to speak. The majority concluded that this did not breach his right to silence or, as he conceded at trial, the voluntariness rule.

[9] Fariburn J. noted in the next paragraph that, where relevant, there are two stages to the inquiry: first, whether there were “inducements, such as promises or threats, sufficient to overcome the will of the accused,” which includes considering whether the individual had an “operating mind” and “whether there has been an atmosphere of oppression created by the police, sufficient to cast doubt on the voluntariness of the statement”; and second, if applicable, whether there was police trickery in obtaining the statement and, if so, whether it would shock the conscience of the community.

[10] Ultimately, determining the voluntariness of statements is contextual. All of the circumstances surrounding the making of a statement must be considered to determine whether it is established by the Crown, beyond a reasonable doubt, that a statement was made voluntarily.

February 25, 2021 utterances

[11] The first statements, or utterances, by Ms. Woodley were made on February 25, 2021 when the police attended at her apartment in response to a call for help regarding a 16-year-old girl living there. During the course of about a 30-minute interaction in the doorway to Ms. Woodley’s apartment and in the corridor outside the apartment, all of which was recorded on police body cameras, Ms. Woodley made a number of statements to the police and to the girl.

[12] Defence counsel does not vigorously contest that they are voluntary, for good reason. At no time was Ms. Woodley under arrest or detention. The police did not enter her apartment. They simply knocked on the door and asked to speak to the girl who was reported to have called the police or to have been in need of help. Ms. Woodley opened the door and called the girl who stepped out of the apartment unit into the corridor to speak to the police. Ms. Woodley knew why they were there – she was aware the police had been called - and was aware the police were recording everything on their body cameras.

[13] Ms. Woodley’s freedom was never in question. She was aware that she could refuse to answer questions. Few were asked of her by the police, and on at least one occasion Ms. Woodley refused to answer them. She stood in the doorway or was inside her apartment. She closed her door at least once and there was no demand by the police to open it. Ms. Woodley made at least one phone call while her door was open and she also spoke to another person present in the apartment.

[14] Ms. Woodley’s statements included questions to the police, statements to them, and statements to the girl in the corridor. Her utterances were largely spontaneous and all appeared to be made of her own free will. There was no evidence of any coercion, pressure, inducements, threats or police trickery. The police were calm and polite throughout the event, and were focussed on the well-being of the girl, who was fearful and left with the police at the end of the events.

[15] At times it is difficult to parse out what Ms. Woodley was saying and to whom. Arguably, the statements the Crown wishes to adduce in evidence from the encounter are not even statements made to persons in authority as they appear to have been directed to the girl, e.g., “you know what is going to happen next” and “you see, wait.” As some of the utterances may be interpreted as being threatening towards the girl, this is also basis to conclude that Ms. Woodley was not affected in any way by the presence of the police.

[16] Subject only to the issue of whether the body camera footage contains other inadmissible information, which counsel agree should be left to the trial judge, I find that the utterances made by the defendant on the body camera footage on February 25, 2021 were made voluntarily.

Statement on March 25, 2021

[17] On March 24, 2021, about a month after the girl was removed from Ms. Woodley’s apartment, the police executed a search warrant at the same address and arrested Ms. Woodley and charged her with the offences she faces in this proceeding. She was arrested at the outset of the search at 9:21 PM that evening. She was transported to the police station shortly after 10:00 PM and after being paraded before the booking sergeant she was placed in an interview room. Shortly after 11:00 PM she spoke to duty counsel. It is not contested that Ms. Woodley was advised of her right to counsel, and she makes no Charter application that her right to counsel or any other Charter right was breached upon her arrest or during her detention that night.

[18] At approximately 12:50 AM on March 25, 2021, Ms. Woodley was brought into an interview room by two officers, DC Rabbito and DC Murphy. After an initial inquiry of Ms. Woodley about her well-being, in which she advised the officers she did not feel well and wanted to lie down, DC Rabbito offered her some water and asked her if there was anything else he could get for her. She said no, and after DC Rabbito fetched the water the interview commenced at about 12:54 AM and continued until about 3:00 AM. The entire interview was recorded on video.

[19] Although initially somewhat cautious and wary of the officers, through most of the two-hour interview Ms. Woodley was talkative, offering information and, sometimes, asking questions of the officers.

The caution

[20] Counsel for Ms. Woodley argued that the caution given by DC Murphy during the interview was inadequate as it was given quickly, without fully explaining the charges, and that although DC Murphy said that she was not obligated to say anything he only said that “whatever you may say may be given in evidence” but failed to say, specifically, that it could be used against her. In my view, this does not make the statement involuntary or inadmissible, for several reasons.

[21] First, Ms. Woodley has not raised any issue that she was denied her right to counsel and the right to be informed of that right contrary to ss. 10(a) and 10(b) of the Charter. It is accepted that she was cautioned when she was arrested and again after she arrived at the police station where the charges would have been read to her before the booking sergeant.

[22] Second, at the outset of the interview, Ms. Woodley demonstrated an awareness of her rights. She mentioned that she had not seen or reviewed the search warrant and then was shown it by the officers. She confirmed that she had spoken to a lawyer and that she understood she did not need to talk to the officers. In addition, early in the interview she said “But you can use agi-, you can-, me-, use evidence towards this cases too”, which showed an awareness of the danger of speaking to the officers. In my view Ms. Woodley was not under any misapprehension that what she said could not be used against her.

[23] Third, the officers made clear on more than one occasion that she had a choice of whether to speak to them. Ms. Woodley understood that she had a choice because she made clear, several times, that she did not wish to talk about the charges, and was selective in the topics she addressed.

[24] Fifth, even if there was an inadequate caution at the outset of the interview itself, a statement is not automatically found to be involuntary; the entire context must be considered, including whether the accused has been cautioned previously, whether she understands her right to silence, and whether she has consulted with counsel: See, e.g., R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48 at paras. 31 – 33; R. v. Ghani, 2008 ONCA 741 at paras. 1-2; R. v. Joseph, 2020 ONCA 73 at paras. 52-55.

Alleged trickery and inducements

[25] Counsel for Ms. Woodley took issue with other conduct of the officers. Early in the interview, DC Rabbito told her that the interview, because it was being recorded, was “an opportunity for you to tell your side of the story, because it’s not talking to me, it’s talking to the judge.” He said he was a “conduit” and that “I find this the best opportunity for someone like you to give that side of the story.”

[26] It was argued that this was incorrect and misleading, amounting to trickery, as DC Rabbito did not explain that her statement would only be reviewed by a judge if the Crown chose to lead it in evidence, and that he ought to have said the “best opportunity” to speak to the judge is at a trial. In this way, the submission goes, DC Rabbito was holding out the statement as an opportunity for her to speak and clear herself of the charges. Further, DC Rabbito’s comment clearly had some impact on Ms. Woodley because on a few occasions later in the interview she said that she was saying something “to the judge.”

[27] In my view, while DC Rabbito ought not to have said that she was “talking to the judge”, this does not amount to trickery, nor did it cause Ms. Woodley to speak involuntarily to the officers. “Trickery” that vitiates a confession arises in rare circumstances in which the conduct of the police “shocks the community.” Examples provided by the Supreme Court include an officer pretending to be a chaplain or a lawyer, or “injecting truth serum into a diabetic under the pretense that it was insulin”: Oickle at paras. 66-67. The legally incorrect statement of DC Rabbito does not come close to the kind of misconduct considered trickery, nor was there even a suggestion that he intended to trick Ms. Woodley, or that he even knew that his statement was legally incorrect.

[28] Stating his view that this was the “best opportunity” for Ms. Woodley to tell her story is similar to saying that it would be the “best thing” or “better for you” to speak, which were not found to have “crossed the Rubicon” and become improper inducements in R. v. Mujko, 2011 ONCA 64 at paras. 30-35.

[29] Further, immediately after DC Rabbito said this Ms. Woodley changed the subject to ask a question regarding her prior involvement with the police, which suggests it had no impact on her decision to speak.

[30] It was also argued that DC Rabbito engaged in trickery when he said “that’s all I want” after Ms. Woodley said she wanted to make “something very clear.” And it was argued that DC Rabbito’s statements, made a few times, that he would follow up on the information she was providing to him, when in fact he did not do so, was also trickery. Again, this does not amount to the serious form of “trickery” described by the Supreme Court, if it amounts to trickery at all.

[31] The promises to look into what Ms. Woodley was telling the officers were, at most, a limited inducement to keep her talking. However, it does not amount to a form of quid pro quo that would lead to her exoneration or the police helping her that is contemplated in the jurisprudence: see, e.g., Spencer at paras. 13-15; rather, DC Rabbito’s statements went no further than to say they would look into what she had to say.

[32] In Spencer, the Court cited a “particularly apt” statement from the English Court of Appeal in R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), that some hope of advantage will often arise at least in part from the actions or statements of a person in authority, noting that “[t]here can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.”

[33] As Deschamps J. went on to note in Spencer at para. 19:

…what occupies ‘centre stage’ is not the quid pro quo, but voluntariness — it is the overarching subject of the inquiry, and this should not be lost in the analysis. As discussed above, while a quid pro quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry into voluntariness.”

[34] Here the inducement, if any, was minor and had little or no impact on Ms. Woodley who in my view chose to speak and chose what to speak about. A promise to look into what Ms. Woodley was alleging is not “an offer of leniency” and there is no basis to have a reasonable doubt that Ms. Woodley’s will was somehow “overborne” by such an assurance: Spencer at para. 13. Indeed, much of what she said was not inculpatory but was to direct the police to facts which, she hoped, would exonerate her.

[35] In my view, therefore, there were no promises, inducements, threats, aggressive action or trickery which raise a reasonable doubt that the statement was voluntarily made.

Other concerns

[36] Counsel for Ms. Woodley raised two other concerns.

[37] First, he submitted that the police ought to have stopped the interview immediately when Ms. Woodley said she did not feel well, that she had been feeling faint and vomited earlier and that she wanted to lie down in her cell. However, there is no evidence that Ms. Woodley was or had been unwell. DC Rabbito provided her with water and she then became an active participant in the discussion, doing most of the talking, standing up at one point to demonstrate something, and otherwise talking animatedly and with energy during the two-hour interview. Had Ms. Woodley’s conduct been consistent with feeling faint or unwell, or had she shown a need to lie down, then the police ought to have stopped the interview. But that did not happen, nor did Ms. Woodley make any request to stop after the interview began. To the contrary, she wished to continue to speak even when the police ended the interview two hours later.

[38] I see no basis to conclude that the police ought to have stopped the interview due to any concerns over the health and well-being of Ms. Woodley. There is no evidence raising a reasonable doubt that Ms. Woodley was thinking clearly and had an operating mind during the interview in which she knew precisely what she was saying, she spoke voluntarily, and knew it could be used to her detriment: Oickle at para. 63.

[39] Second, counsel submitted that there was an unexplained lack of completeness to the evidence of Ms. Woodley’s utterances on March 25 as DC Rabbito referred in the interview to having sat down with Ms. Woodley earlier in the evening before they left her apartment where he told her that she would “have every opportunity to tell your side of the story, ‘cause it sounded like you want to…speak of your story .. about [the victim’s] involvement.”

[40] In his evidence before me DC Rabbito had no recollection of sitting down with Ms. Woodley in the apartment when she was arrested, nor did he have any note of it. Rather, his recollection was that as Ms. Woodley was being taken away from her apartment she recognized DC Rabbito, who had met with her several months earlier, in October 2020, with another officer, Scott Taylor, when the police believed that Ms. Woodley was helping the two girls who were in the apartment – including the victim and the other girl located in the apartment on February 25. When she was being taken to the police station under arrest in March 2021, DC Rabbito said that that she was excited, she called out Scott Taylor’s name, and she said words to the effect that he knew her and that she wished to talk. DC Rabbito’s evidence was that he stopped her and said they would speak at the station.

[41] While the inconsistency between DC Rabbito’s evidence and the statement he made during the interview is not explained, it does not affect the voluntariness, or completeness, of Ms. Woodley’s statement, as on either account she did not say anything material to the police prior to the interview. This is not a case like R. v. Blain, 2013 ONCA 224 or R. v. Panton in which statements were not recorded and there were disputes as to what was said. There is no basis to exclude the March 25 statement based on any inadequacy in the record of what was said by Ms. Woodley.

Conclusion

[42] I am satisfied beyond a reasonable doubt that the statements of Ms. Woodley made and recorded by the police on February 25, 2021 and March 25, 2021 were voluntary and are admissible.

Paul B. Schabas J. June 25, 2024