COURT FILE NO.: CR- 23-50000616 DATE: 20241119

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - Alpha Henry

Counsel: Michael Wilson and Jamie Buckland Foster, for the Crown Jamie Kopman, for the Respondent Alpha Henry

Heard: October 28–31, November 1-14, 2024

J.M. BARRETT J.

RULING ON THE ADMISSIBILITY OF ALPHA HENRY’S VIDEOTAPED STATEMENT TO DETECTIVE McGINN

Overview

[1] At approximately 1:57 a.m., on September 21, 2022, Toronto Police Service (“TPS”) officers entered unit 417 at 27 Bergamot Avenue in response to two 911 calls made by the defendant, Alpha Henry. Upon entry, officers discovered the lifeless bodies of Veronica and Colin Henry in the bathtub doused in gasoline.

[2] The defendant, who was found inside the unit, was directed to the hallway. While there, the defendant told officers that his brother had arrived home from Japan and attacked his parents with a knife.

[3] Defence counsel agrees that the defendant’s statements to the 911 dispatcher and to officers while in the fourth floor hallway of 27 Bergamot Avenue were given voluntarily. The defence consents to the Crown’s request that these statements be admitted as evidence in the trial proceedings without the need for a voluntariness voir dire.

[4] At issue is a ninety-minute videotaped statement given by the defendant to the lead homicide investigator, Detective (“Det.”) Michael McGinn, at 4:51 p.m. on September 21, 2022. [1]

[5] As Det. McGinn is a “person in authority”, the admissibility of this statement is dependent on the Crown proving beyond a reasonable doubt that the statement was made voluntarily: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. The defence argues that on the record before me, there is a reasonable doubt about the voluntariness of this statement. The record raises a reasonable doubt about whether it is the product of an operating mind and/or oppressive circumstances created by several officers neglecting the defendant’s medical and personal circumstances.

[6] The parties consented to a blended statement voir dire for the purposes of determining the admissibility of this statement. This procedure became possible because, pursuant to s. 473(1) of the Criminal Code, R.S.C., 1985, C. c-46, and with the consent of the Attorney General, the defendant elected to a trial before me, sitting without a jury. [2]

[7] On November 18, 2024, I made a brief oral ruling with reasons to follow admitting the defendant’s statement to Det. McGinn. These are those reasons.

The Evidence

[8] The defendant did not testify or call any evidence on the voir dire.

[9] The parties agree that the vast majority of the defendant’s contact with officers preceding his interview with Det. McGinn was captured by the audio and/or video recordings made by officers’ body worn cameras. The defence agrees that periods for which there are no recordings are of no consequence in determining the voluntariness of the defendant’s statement to Det. McGinn.

[10] Officers Cilia, Loughlin, Hofland, McGinn, Saini, Stone, Gandhi, Tang and Special Constable (“SC”) Axon testified about their contact with the defendant on September 21, 2022.

[11] Police Constable (“PC”) Siobhan Best, who was with the defendant from about 1:57 a.m. to 7:15 a.m., did not testify due to health issues. [3] On consent, four recordings from PC Best’s body worn camera were admitted into evidence under the principled exception to the hearsay rule. These four recordings cover the period of 1:52 a.m. to 4:33 a.m.

The Defendant’s 911 Calls

[12] As noted above, the defendant waived the need for a voluntariness voir dire to determine the determine the admissibility of his two calls to 911.

[13] At the start of the defendant’s first call to 911, when asked if he needed the assistance of “police, fire, or ambulance” the defendant said “police”. During this call, the defendant said that his brother returned home from “flying” and “started to stab us”, “murdered my two parents” and “pulled my parents to the washroom”. The defendant stated after his brother returned home about “two hours ago”, “he [his brother] stabbed all of us” and then ran off with the knife.

[14] At about 1:47 a.m., the defendant called 911 again. When asked if he required “police, fire, or ambulance” the defendant replied “police”. The defendant immediately stated “my brother, my brother came to our house and he […] he murder my two parents, and he attack me, and he ran off with the knife.” He said his parents were dead in the bathroom tub. He told the dispatcher that he tried to protect himself but was also stabbed “quite a bit”. During this call, the police arrived on scene.

The Defendant’s Statement at the Scene

[15] In response to the 911 calls, Sergeant (“Sgt”) Cilia and PCs Loughlin, Hofland, Stone and Best were the first to arrive on scene. Immediately upon entering unit 417, Sgt. Cilia directed the defendant to wait in hallway with PC Best. For about the next thirteen minutes, the defendant sat in the fourth floor hallway with PC Best.

[16] PC Best’s body worn camera recorded the defendant as he explained that at about 1:20 or 1:30 a.m. his brother came back from Japan. The defendant and his parents stayed up waiting for his brother. They were “worshipping” when his brother came in, got a knife from the kitchen and then “came for” his mom and then his dad.

The Events Preceding the Defendant’s Statement to Det. McGinn

[17] At approximately 2:10 a.m., the defendant was escorted from the fourth floor hallway to the outside of 27 Bergamot to await the arrival of an ambulance. While waiting, the defendant was placed in the back of a police cruiser for about ten minutes. At 2:28 a.m., PC Best took custody of the defendant’s cell phone.

[18] By 2:28 a.m., the ambulance had arrived. The defendant was given a blanket to cover his head for privacy as media were on scene. As PC Best guided the defendant to the ambulance, she called him “my friend”.

[19] At 2:30 a.m., the defendant was transported to Etobicoke General Hospital (“EGH”). PC Best accompanied the defendant. The defendant arrived at EGH at approximately 2:53 a.m. [4]

Contact with Officers at Etobicoke General Hospital

[20] At 2:56 a.m., PC Stone joined his partner, PC Best in the emergency bay of the hospital where the defendant was lying on a stretcher. PC Stone placed the defendant under arrest for murder and attempt murder. After reading the standard rights to counsel from the back of his police memorandum book, PC Stone asked “do you understand?” The defendant nodded his head and replied “yeah”. PC Stone then asked “do you wish to call a lawyer now?” The defendant said “no”. PC Stone told the defendant that he was still going to call duty counsel and cautioned that “you’re not obliged to say anything in answer to the charge [but] whatever you say may be given in evidence”. PC Stone repeated this caution and asked “do you understand”. The defendant nodded in the affirmative.

[21] At 2:58 a.m., PC Stone stepped away to call duty counsel. In his absence, PC Best asked the defendant if he understood everything that was happening explaining that he was under arrest for murder and attempt murder. The defendant said that he did not understand “of who”. He was “confused” because his “parents got attacked, me, got attacked […] because he had came back today from Japan”.

[22] At 3:14 a.m., a nurse spoke to the defendant. When asked for an emergency contact, the defendant gave his parents. At one point while lying on a hospital bed in a hallway, the defendant appeared to hear a voice and asked PC Best “that’s my dad?” PC Best replied “I don’t believe so”.

[23] Duty counsel, Mr. Murphy, called back. At 3:21 a.m., the defendant began speaking with Mr. Murphy. The call lasted a little more than eleven minutes. During this period, PC Best and Stone waited down the hall with their body worn cameras muted. When the call finished, the defendant held up the cell phone to signal its end. PC Best asked the defendant if he was satisfied with the call. The defendant nodded in the affirmative.

[24] At 3:52 a.m., a nurse came and asked the defendant “what happened”. The defendant replied “the duty counsel person said not to talk.” PC Best overheard this and explained to the defendant that he could speak to the nurses about anything medically related.

[25] As they waited for a hospital room, PC Best and Stone stayed several feet away from the defendant and were silent. By 4:28 a.m., the defendant was moved from the hallway into a room. This ended the recordings by the body worn cameras of PC Best and Stone as their batteries ran out. The next recordings of the defendant commence upon the arrival of the relieving officers.

[26] At 7:15 a.m., PC Best and Stone were relieved by PC Gandhi and PC Saini. By now, the defendant was receiving intravenous medication in preparation of a CT Scan. [5] On arrival, PC Gandhi explained to the defendant that he was going to again advise him of his rights to counsel. PC Gandhi then advised the defendant that he had been arrested for murder and attempted murder. The defendant appeared confused, repeatedly asking “of who”. PC Gandhi explained that he did not have this information as he was there to relieve the other officers. After PC Gandhi read the standard rights to counsel, he asked “do you understand?” and “do you wish to call a lawyer?” The defendant said he understood and that he had already spoken with duty counsel. PC Gandhi then cautioned the defendant that “you’re not obliged to say anything” but “whatever you say will be given as an [sic] evidence in the court of law. Do you understand that?” The defendant replied “yeah”.

[27] At 8:00 a.m., the defendant was taken for x-rays. By 8:50 a.m., he back in a hospital room. He also had a CT Scan of his head. Ultimately, the defendant received twenty-five to thirty stitches to his left hand, five stitches to his left upper thigh, and three stitches to the bottom of his left foot. He also received a tetanus shot. The defendant is described as “awake and alert” in the hospital records.

[28] At approximately 9:05 a.m., the emergency physician advised that the defendant would be discharged. The defendant was prescribed two drugs: Keflex, an antibiotic, and Arthrotec, a non-steriodal anti-inflammatory that helps with pain. The defendant was given a follow-up appointment date of September 26, 2022. At no time did PCs Gandhi or Saini have any concerns about the defendant’s mental health.

[29] During cross-examination, PC Gandhi and Saini agreed that they did not make any note of, or inquiries about, the medications prescribed to the defendant. Nor were any inquiries made of PCs Best or Stone about the defendant.

[30] At approximately 9:30 a.m., PC Gandhi and Saini escorted the defendant to their police scout car. The defendant was cuffed to the front. During the drive to 23 Division, PC Gandhi asked if the defendant was feeling okay. PC Gandhi explained that he knew the handcuffs can sometimes cause numbness so he was concerned for the defendant’s wellbeing. The defendant replied he was “good” and then proceeded to talk to the officers about the weather. While waiting by the sallyport of 23 Division, the defendant joked with the officers.

Arrival at 23 Division

[31] At 10:07 a.m., the defendant was brought into the booking room at 23 Division. He was booked into 23 Division by the Officer-in-Charge of the station, Staff Sergeant (“S/Sgt.”) Jansz, with the assistance of SC Axon.

[32] Before starting the booking process, PC Gandhi again told the defendant that he was under arrest for two counts of murder and read the standard rights to counsel. When asked “do you understand? Do you wish to call the lawyer?” the defendant twice replied “no, I’m good”. S/Sgt. Jansz told the defendant “if you change your mind, […] just let the booker know and the booker will make that call for you”. S/Sgt. Jansz also told the defendant that while at 23 Division, he would have “reasonable use of the telephone” to call anyone else he wished.

[33] S/Sgt. Jansz asked the defendant if he had any mental health issues or medical concerns. The defendant replied “no” and shook his head. He also denied consuming any intoxicants. When asked if he received any medication at the hospital, PC Saini told S/Sgt. Jansz that the defendant had an IV in his arm at the hospital. The defendant pointed to his arm and said he received anti-biotics and a tetanus shot. PC Saini detailed the stitches received by the defendant for his injuries.

[34] At the end of the booking process, the defendant was brought to a side room where he changed into an orange jumpsuit. S/Sgt. Jansz explained that the jumpsuit would keep him “a little bit warmer and a little bit more comfortable.”

[35] The booking process was finished by 10:23 a.m. Before leaving the booking room, S/Sgt. Jansz asked the defendant if he had eaten. When the defendant said he had not, S/Sgt. Jansz said that they would arrange for food and water.

Events at 23 Division

[36] After leaving the booking room, the defendant was brought to cell #15. The defendant was the sole occupant. The cell had a cement slab in the shape of a bed. It had its own toilet and sink with running water. The defendant was given a cup for water. At 10:41 a.m., SC Axon gave the defendant his first of two meals.

[37] SC Axon testified that he did cell checks on the defendant throughout the day. His desk was only about forty or fifty feet away.

[38] From about 10:54 a.m. to 11:53 a.m., the homicide team had a briefing to discuss the investigation. During the briefing, there was no discussion of the defendant’s mental health or how he presented. Det. McGinn agreed that he did not make any inquiries about whether the defendant was medicated at the hospital, or how he presented when with other officers. Det. McGinn explained that he relied on the other officers to advise him of any concerns as they are legally obliged to do so.

[39] After the briefing, Detective Constable (“DC”) Eric Tang was directed to re-arrest the defendant for two counts of first degree murder, to re-caution the defendant and to facilitate another call with counsel. This was to occur before the defendant met with Det. McGinn.

[40] At 12:46 p.m., DC Tang did as he was instructed. He attended at cell #15, introduced himself and then asked the defendant if he was “doing okay”. The defendant replied “oh yeah”. DC Tang then told the defendant that he was a member of the homicide unit investigating the matter and that based on what had been gathered so far, he needed to inform the defendant that he was now being arrested for two counts of first degree murder. The defendant replied “how? If I was attacked […] I can’t attack myself.” DC Tang immediately interjected with “Alpha stop”. DC Tang explained that “absolutely we’re gonna talk to you about what happened, but we wanna make sure that you’re protected and that you don’t say anything that might put you in under (sic) jeopardy without you knowing.” The defendant replied “but my parents are dead and I’m being, I was attacked by the same person. I kind of and got away and ran away.” DC Tang told the defendant that the investigators would sit down with him and “talk with you about what happened,” but he first had to read him his rights to counsel.

[41] DC Tang then cautioned the defendant that he was “not obliged to say anything” but “anything you do say to me or any other officers may be given in, in as evidence.” When asked if he understood, the defendant said he did not “because I don’t know who is arresting me and who’s putting those charges on me”. When told the charges were being laid by Toronto Police based on the investigation, the defendant said “that makes no sense”. DC Tang then read the secondary caution explaining that if the defendant had spoken to any other officers it was not to influence him in making a statement because he did not have to give a statement.

[42] When DC Tang explained that they would not speak with him until after he had spoken with counsel, the following exchange occurred:

HENRY: I’d rather speak for myself TANG: You – the lawyer. Sorry. The lawyer is not speaking for you. HENRY: Mm-hmm. TANG: The lawyer’s gonna give you some advice as to --- HENRY: I don’t have advice because this is all bullshit. TANG: The lawyer will also give you, um, the lawyer is also able to answer questions for you. HENRY: I can answer anything.

[43] The defendant said he did not want to “waste time” but DC Tang explained that contacting counsel was not wasting time. The defendant then said that he needed “to be free today” as he had “property [that] could go missing”, he was paying rent there, and he had kids he had to see.

[44] By 1:44 p.m., duty counsel called back. DC Tang told the defendant that after he spoke with duty counsel, it would be up to him whether or not he spoke with the police. The defendant replied “I have a lot to say”. After speaking with duty counsel, the defendant appeared in video bail court.

[45] During the appearance before the bail justice, DC Tang learned of the name of the lawyer who had previously represented the defendant. Consequently, at about 2:45p.m., DC Tang advised the defendant that attempts were being made to contact Mr. Erskine and that if Mr. Erskine called back, the defendant could speak with him. The defendant replied “about what?” The defendant again questioned why he was there, saying “I’m a victim, you get it?”

[46] When DC Tang explained that “we’ll talk about that after”, the following exchange occurred:

HENRY: What do you mean? TANG: Do you want --- HENRY: I’m getting dizzy. My hand’s bleeding. It is a broken hand, you know. TANG: Okay. Do you want --- HENRY: I had – I didn’t, I – I wasn’t able to get the medication that he prescribed to me. TANG: Okay. HENRY: You get it. TANG: If you’re not feeling well, we’ll, we’ll look after that. HENRY: I was, I was stabbed in my leg and my hand is broken.

[47] The defendant continued to insist that the charges were “a false allegation” for which there was “no proof”. DC Tang explained that while waiting for the lawyer to call back, another officer would take photographs of him, document all of his injuries and take a couple of swabs. The defendant replied “counsel said not to swab”. When DC Tang explained that he did not have a choice, the defendant again replied “duty counsel told me and pictures as well and say all that. They said no.” The defendant then said “I talked to those therapists three times already”. When DC Tang asked “which therapist”, the defendant replied “the duty counsellors”. The defendant again asserted “I’m a victim guy”.

[48] DC Tang did not press the issue of photographs or swabbing. DC Tang did not follow up on the defendant’s complaint of dizziness or that his hand was broken. Although DC Tang knew that the defendant had been at EGH before arriving at 23 Division, he did not make any inquiries of other officers about how the defendant was presenting or the treatment received despite a concern that he viewed some of the defendant’s conduct as erratic and abnormal. DC Tang explained that this was “not at the forefront of my mind” given the many other issues discussed at the briefing. During cross-examination, DC agreed that he appeared as if the defendant did not know all of the “legal ramifications.” He explained that this lack of understanding related to the legal process and terminology, not legal jeopardy. DC Tang never told Det. McGinn of his concerns.

[49] While waiting to make contact with Mr. Erskine, at 3:40 p.m., the defendant was given a second meal of two pizza pockets. At 4:09 p.m., the defendant complained to SC Axon about his left hand and asked to return to the hospital for a cast. SC Axon asked whether the defendant had any new injuries or was experiencing any new pain. The defendant confirmed that his pain was not getting worse. Nor did he have any new injury. SC Axon testified that he looked at the defendant’s bandage and saw there was no bleeding. The defendant was told that he would not be brought back to the hospital because his hand had already been x-rayed. The defendant then asked for the medication prescribed by the hospital.

[50] At 4:43 p.m., the defendant told SC Axon that his medication was due at 6 p.m. The defendant appeared fixated on getting his medication. When SC Axon explained that the defendant would receive his medication at the detention centre, the defendant said “okay” and appeared “perfectly fine”. SC Axon described the defendant as “very pleasant to deal with”. SC Axon had no concerns about the defendant’s mental health. The only thing SC Axon found odd was a request by the defendant to call his mom. Knowing that the defendant was charged with murdering his parents, SC Axon told the defendant that he could not facilitate the request to call his mom. SC Axon did not tell anyone of this request. Nor did SC Axon tell anyone from the Homicide Unit of the defendant’s request to go to the hospital or for his medication.

[51] SC Axon testified that another detainee at 23 Division that day also complained that he was in need of medical attention. SC Axon called an ambulance for this detainee. SC Axon explained that unlike the defendant’s circumstances, this other detainee had a medical emergency: the male complained of swelling in the hands, numbness in the left arm and a “sore heart”.

The Videotaped Interview with Det. McGinn – The Contested Statement

[52] At 4:56 p.m. the defendant was brought to the interview room to speak with the officer-in-charge of the homicide investigation, Det. McGinn.

[53] At the start of the interview, Det. McGinn confirmed that the defendant had spoken to duty counsel. Det. McGinn explained that they had tried to contact the defendant’s former lawyer, Mr. Erskine but Mr. Erskine was now a Crown Attorney. Det. McGinn told the defendant that if he wanted to speak with a lawyer again, he could (p. 5). Det. McGinn then told the defendant that he was being charged with two counts of first degree murder. Det. McGinn cautioned the defendant that he was not obliged to say anything but “whatever you say may be given in as evidence” (p. 8). When asked “do you understand”, the defendant replied “oh yeah”. Det. McGinn then read the secondary caution to inform the defendant that if he had spoken to any other officer, or anyone in a position of authority, this was not to influence him in making a statement. Det. McGinn asked if the defendant was “happy” with the advice he received from duty counsel. The defendant replied “that’s with Murphy, yeah, yeah” (p. 9). Det. McGinn offered to call duty counsel again but the defendant said “nah, nah I heard, I heard” (p. 9). Det. McGinn then explained the penalty for first degree murder to which the defendant replied “two lifes in jail”.

[54] Before asking the defendant any questions about the incident, Det. McGinn confirmed that the defendant had something to eat and drink, and had used the washroom. Det. McGinn then asked “facilities treat you good, pretty good here?” The defendant replied “oh, yeah, very good” (p. 13). Det. McGinn then asked the defendant about his injuries and asked “what happened” (p. 14). The defendant explained that when his brother returned home from Japan he was angry and “start attacking me from behind”. This caused the defendant to “run out of the apartment” and start knocking on doors (p. 19).

[55] Approximately forty-seven minutes into the interview, Det. McGinn produced a photograph of the defendant purchasing gas at the Esso station (p. 89). Initially, the defendant denied it was him. When Det. McGinn presented a close-up photograph and asked “who do you think that is?” the defendant replied “probably me” (p. 90). The defendant then began to explain why he purchased gas. Det. McGinn told the defendant that “this is one of those times where honesty goes a long way” (p. 95).

[56] During cross-examination, Det. McGinn agreed that near the end of the interview (pp. 170-175) the defendant asked about when he would be released and “what did Erskine say”. Det. McGinn explained that the defendant was not going to be released and that Mr. Erskine was no longer a defence counsel. The defendant also told Det. McGinn that he had “medication to take” (p. 174). Det. McGinn explained that he was not concerned by any of these remarks. Nor was he concerned that at four points during the interview, the defendant started singing. Det. McGinn explained that the singing was consistent with what the defendant was describing at that point of the interview. Had there been any concerns that the defendant lacked an operating mind, Det. McGinn said he would have stopped the interview.

Position of the Parties

[57] At issue is whether the defendant’s videotaped statement to Det. McGinn on the afternoon of September 21, 2022, is voluntary.

[58] The Crown submits that it has proven beyond a reasonable doubt that the defendant’s videotaped statement to Det. McGinn was voluntary. It was the product of an operating mind and there are no circumstances that cast doubt on its voluntariness. Specifically, the statement was not induced by any threats, promises or any other inducement. Nor was it the product of oppressive circumstances, or police trickery. Rather, the evidence overwhelmingly shows that the defendant was alert, coherent, and eager to give the police his account of what happened and to cast the blame for what happened on his younger brother.

[59] The defence argues that based on the record there is a reasonable doubt about the voluntariness of the defendant’s statement to Det. McGinn. A review of the totality of circumstances applying a contextual analysis demonstrates that there is a reasonable doubt that the defendant had an operating mind when giving the statement due in part to the oppressive circumstances created by police conduct, including their failure to take certain steps.

[60] The oppressive circumstances arose from a constellation of the following factors:

i. Sleep deprivation: When the interview started, the defendant had been in police custody for over fifteen hours and likely awake for more than twenty-four hours. No inquiries were made by any of the officers to ensure that the defendant had slept before he was interviewed by Det. McGinn.

ii. Physical injuries: The defendant had significant physical injuries for which he was treated at EGH from approximately 2:53 a.m. to 9:30 a.m. At EGH, the defendant received stitches to his left hand, his left upper thigh and the bottom of his left foot. The defendant also received intravenous medication and was prescribed medication upon discharge. However, none of the officers made inquiries about the medication he received or was prescribed. Further, shortly before he commenced his interview with Det. McGinn, the defendant asked for his medications and wanted to return to the hospital for further treatment. His requests were denied. Det. McGinn was unaware of the requests.

iii. Mental health issues: From the outset of the investigation, concerns were raised about the defendant’s mental health. Sgt. Cilia told PC Best that the defendant was “EDP”. [6] Further, while at the hospital, the defendant named his parents as his emergency contacts and appeared to believe that his father was at the hospital. Also, while in the cells at 23 Division, the defendant asked to call his mom and appeared “erratic” at times when dealing with DC Tang. However, Det. McGinn was unaware of these observations.

iv. Lack of understanding of legal jeopardy: Although the defendant was read his rights to counsel and cautioned four times, [7] each time he expressed confusion about why he was being charged. There is nothing to confirm that the defendant comprehended the risk that his statement could be used as evidence in criminal proceedings. His lack of comprehension was evident to PC Best who took further steps to explain the process to the defendant at the hospital and by DC Tang who thought the defendant was acting erratically but did nothing. Other unusual conduct by the defendant reflected a lack of comprehension e.g., confusing duty counsel with “therapists”, asking to speak with Mr. Erskine after being told he was now a Crown attorney, confusing a nurse with a person in authority, confusion over who was charging him.

Governing Legal Principles

[61] The confessions rule is aimed at ensuring that statements made by an accused to persons in authority are admissible in evidence only in circumstances where the Crown has proven beyond a reasonable doubt it was given voluntarily. In other words, that the accused made a meaningful choice to speak: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 35.

[62] The confessions rule strikes a balance “between the individual and societal interests at play in police questioning”: R. v. Tessier, 2022 SCC 35, 473 D.L.R. (4th) 317, at paras. 4, 69-72. On the one hand, it protects accused persons from improper police interrogation, thereby guarding against the admission of unreliable confessions and simultaneously promotes the right to silence, the right against self-incrimination and the overall repute of the criminal justice system. On the other, the confessions rule recognizes “the legitimate law enforcement objectives of the state relating to the investigation of crime”: Tessier, at para. 69; Oickle, at para. 33; Singh, at paras. 44-45. As such, the test of voluntariness “extends to a broader ‘complex of values’ animated by both reliability and fairness”: Tessier, at para. 72; Singh, at para. 30. It follows that a statement may be found to be involuntary based on concerns about its reliability or because of the unfair manner in which it was obtained: Tessier, at para. 70.

[63] In Oickle, the Supreme Court of Canada identified the following relevant factors for consideration when determining the voluntariness of a statement to a person in authority:

(i) threats, promises or inducements; (ii) the existence of oppressive circumstances; (iii) the lack of an operating mind; and (iv) the use of extreme police trickery.

[64] These factors, while relevant, are not a checklist that supplants a contextual fact-specific inquiry having regard to all of the circumstances surrounding the making of the statement. The key issue ultimately is whether the will of the accused was overborne by state conduct and the circumstances: see R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 11-13, 48; Tessier, at para. 68.

[65] There is no onus (evidentiary or otherwise) on an accused person to establish the existence of one or more of the Oickle factors. Rather, the onus is always on the Crown to establish beyond a reasonable doubt that the will of the accused was not overborne: See R. v. Alas, 2016 ONSC 5709, at para. 31. This onus applies even where, as in this case, the statement in issue is not a “confession” but is an exculpatory account.

Analysis

[66] Counsel for the defendant conceded that there is nothing in the record to suggest that the defendant’s statement to Det. McGinn was influenced by any threats, promises, or other inducements. Nor is there any concern of police trickery. I agree.

[67] A near complete recording exists of all contact the defendant had with persons in authority from the time of his 911 calls to the time that he sat down with Det. McGinn. Having viewed this extensive collection of recordings, they demonstrate beyond any doubt that the defendant was treated with much compassion and respect for his privacy interests and Charter rights. For instance, the defendant was actively discouraged from making a statement before he had spoken with counsel. When being escorted to the ambulance, he was given a blanket to cover his head for privacy from the media on scene. When being escorted from the hospital to 23 Division, he was cuffed to the front of his body for comfort given his injuries. After being booked at 23 Division, he was given warm meals and a change of clothing. The police interactions with the defendant are a model of courtesy and professionalism.

[68] I will now focus on the two Oickle factors that are in dispute: (i) whether the statement was influenced by oppressive circumstances; and, (ii) whether the defendant had an operating mind when he spoke with Det. McGinn. However, I am mindful that the Oickle factors are not an exhaustive checklist. Rather, they form part of the fact-specific analysis required based on the totality of circumstances.

Oppressive Circumstances

[69] Oppression is a question of the circumstances. The oppression must arise from police conduct and have influenced the making of the statement. In other words, a causal connection is required between the police conduct and the making of the statement: Singh, at para. 44. Even if oppressive circumstances are found to exist, on their own, they will not necessarily render a statement involuntary.

[70] The issue is whether the will of the accused person is overborne by the conduct of the police and the circumstances caused or created by the state: Oickle, para. 71. Oppressive conditions that are not caused or created by the state are irrelevant. For example, oppression arising from the accused’s own anxieties, absent state actions, will not invalidate a confession: see R. v. Fernandes, 2016 ONCA 772, at para. 36.

[71] In Oickle, Iacobucci J. writing for a majority of the court, at para. 60, described the following factors as potentially creating an atmosphere of oppression: “depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time.”

[72] In the instant case, defence counsel argues that the defendant was deprived of sleep and medical attention. I disagree.

[73] At most, the evidence establishes that the defendant was awake before his brother returned home at about 1:30 a.m. on September 21, 2022. His statement to Det. McGinn started approximately 15½ hours later. However, it is unknown whether the defendant slept while in his cell at 23 Division. What is known is that there is no evidence of officers actively preventing him from sleeping. Further, having viewed his statement with Det. McGinn, the defendant presents throughout as alert and engaged. He showed no signs of sleep deprivation. Nor did the defendant ever complain of being sleep deprived, or about how he was treated while in police custody.

[74] This is not like the circumstances in R. v. Hoilet, [1999] O.J. No. 2358. In Hoilett, the accused fell asleep five times during questioning. Further, there was evidence that Mr. Hoilett was intoxicated when arrested and left naked in a cold cell for two hours before being given inadequate clothing.

[75] I am also satisfied that the defendant was not unfairly deprived of necessary medical attention. I agree that the police could have and arguably ought to have done more to inform themselves of the defendant’s medical needs. In particular, knowledge of the medications administered and prescribed could have been important to ensure that the defendant received any further doses required. Also, Det. McGinn ought to have been informed of the defendant’s requests to return to hospital and for his medication. This would have allowed Det. McGinn to satisfy himself that these factors were not an impediment to him proceeding with the interview. I am satisfied, however, that this was of no consequence. It did not create an atmosphere of oppression.

[76] The instant case bears no similarity to the circumstances in R. v. C. (S.E.), 2009 MBQB 242. In that case, a statement was excluded because of oppressive circumstances arising from a deprivation of medical attention. In C.(S.E.), the police refused to provide prescribed blood pressure medication despite five requests and they continued questioning over an extended period of time despite the accused’s repeated refusal to give a statement. The police were also found to have failed to provide proper nourishment and rest to the accused.

[77] In contrast, the defendant was given two warm meals, clothing, and, his own cell where he could rest. Notably, the defendant never said he did not want to speak with the police. Nor was he ever subjected to aggressive or prolonged questioning. In fact, the opposite is true. Det. McGinn asked open ended questions allowing the defendant to give his account. Even when Det. McGinn challenged the defendant’s account, he never raised his voice and simply told the defendant that he would appreciate “a little bit of honesty” (p. 91) as the defendant’s account made no “sense” (pp. 95, 106).

[78] The Crown analogized the instant case to that of R. v. Alas, 2016 ONSC 5709, in which Trotter J. (as he then was) admitted Mr. Alas’ statement in circumstances where the police failed to provide Mr. Alas with prescribed medication. I agree. That said, the circumstances in Alas were more egregious than those present in the instant case.

[79] In Alas, the accused asked several times for his prescribed medication for his stomach. His prescribed medication was brought to the station but never given to Mr. Alas. During his interview, Mr. Alas winced as if in pain but the interview continued for a further forty-five minutes despite Mr. Alas saying he was “dying” to have his medication as his stomach was “burning”. At the end of the interview, Mr. Alas was transported to hospital where he was given his medication. In Alas, Trotter J. expressed concern about how the police responded to Mr. Alas’ medical needs, but noted that otherwise the police were polite, gentle and showed concern for Mr. Alas’ wellbeing. Further, throughout the interview, Mr. Alas appeared relaxed and did not present as a person in distress. Ultimately, Trotter J. found that Mr. Alas’ will was not overborne by the circumstances in which he found himself, nor by anything said or suggested to him by any of the officers.

[80] In the instant case, the police did not have the defendant’s medication – only a prescription. SC Axon testified that in circumstances where a detainee arrives from the hospital with a prescription, the prescription is filled on release or once the person arrives at the detention centre. SC Axon testified that the defendant’s requests for his medication and to be returned to hospital were not granted as neither were a medical emergency. As explained by SC Axon, the defendant said his pain was not worsening and he had no new injuries.

[81] I am satisfied beyond a reasonable doubt that the defendant’s will was not overborne when he spoke with Det. McGinn.

Operating Mind

[82] A voluntary confession is one that is the product of an operating mind. To have an operating mind, an accused must possess a “limited cognitive ability to understand what they were saying and to comprehend that the statement might be used as evidence in criminal proceedings”: Tessier, at paras. 8, 50 quoting R. v. Whittle, [1994] 2 S.C.R. 914, at p. 939. See also: Oickle, at para. 63.

[83] This is not a high threshold. It does not require the capacity to act in one’s own best interest. Nor does it require actual knowledge of the consequences of speaking: Tessier, at paras. 12, 53-56. It does, however, require proof “that the accused was capable of making a meaningful choice to speak to the police and that the choice was not improperly influenced by state action”: Tessier, at para. 51. In other words, a “free choice” that was not frustrated by the conduct of the police or other factors that would compromise voluntariness: Tessier, at para. 52.

[84] Defence counsel submits that there is a reasonable doubt that the defendant’s statement is the product of an operating mind. In particular, there is no evidence that the defendant comprehended that his statement to Det. McGinn could be used in criminal proceedings. Rather, when considered in the context of all the circumstances, including his lack of sleep, bizarre behaviour, and the failure of officers to address the defendant’s medical and mental health issues, it is clear that he lacked the cognitive capacity to understand his legal jeopardy. The defendant’s decision to speak was as a victim, not as someone who faced any legal jeopardy and therefore it was not a meaningful choice.

[85] I am satisfied beyond a reasonable doubt that the defendant had an operating mind when he spoke with Det. McGinn.

[86] First, the defendant’s presentation was consistent over the 15½ hours that he was in police custody before he met with Det. McGinn. Throughout, he was alert, clear, coherent and appeared quite eager to tell the police his narrative of how he and his parents were attacked by his brother.

[87] Second, while the defendant had physical injuries, he received medical treatment. He did not appear to be in pain or any discomfort when speaking with Det. McGinn. Further, during the booking process at 23 Division, the defendant confirmed that he had not ingested any alcohol or other intoxicants and said that the medication administered at hospital was an anti-biotic and a tetanus shot.

[88] Third, the defendant was advised of his rights to counsel and cautioned three times before he met with Det. McGinn. He spoke to duty counsel twice. The defendant’s capacity for meaningful choice is evident by his refusal to tell a nurse what happened and his refusal to DC Tang to have swabs and photographs taken.

[89] Fourth, the defendant confirmed his understanding at the start of the interview with Det. McGinn. When Det. McGinn informed the defendant of his rights to counsel and re-cautioned him that he was “not obliged to say anything in answer to the charge” but whatever was said “may be given in as evidence”, the defendant said “oh yeah” (p. 8). Having viewed the recording of this interaction, I reject the suggestion that the defendant was merely “parroting” what he was told by officers. Rather, the defendant’s own comments – that he was facing “two lifes in jail” – demonstrate his understanding of the jeopardy he faced. [8] Further, there was no impropriety on the part of the police. They did not attempt to obscure the defendant’s legal jeopardy. They employed no strategies of deception. Nor did they attempt to uncover any vulnerabilities that could be exploited. In fact, the opposite is true. All officers took active steps to ensure the defendant was properly informed and discouraged him from making any statements until after he had spoken to counsel.

[90] Fifth, while there is evidence that the defendant had some mental health issues at the time of his arrest, I am satisfied beyond a reasonable doubt that this did not deprive him of an operating mind. The defendant was eager to share his account of the events with persons he knew to be police officers.

[91] I agree that Det. McGinn ought to have been informed of the concerns that some officers had about the defendant’s odd behaviour. However, I am satisfied that this omission was without consequence. The defendant understood that he did not have to speak with the police and that what he said could be used against him. The video recording of the interview and the defendant’s other contact with officers belies his complaint that his cognitive functioning was compromised. He was, at all times, alert, engaged and responsive. His motivation was self-created. It stemmed from his confidence that the police had “no proof” and his desire to implicate his brother. In fact, even at the end of the interview, the defendant told Det. McGinn “I don’t need a lawyer cause I, I didn’t do anything” (p. 172).

[92] In all of the circumstances, I am satisfied beyond a reasonable doubt that the defendant had an operating mind when speaking to Det. McGinn.

Conclusion

[93] I am satisfied that the Crown has proven the voluntariness of the defendant’s statement to Det. McGinn beyond a reasonable doubt.

[94] Accordingly, the statement given to Det. McGinn is admissible.

J. M. Barrett J.

Released: November 19, 2024.

Footnotes

[1] While the defendant made numerous other utterances to officers during the 15½ hours from the time that police arrived at unit 417-27 Bergamot to the start of the interview with Det. McGinn, the Crown has not sought to tender these as evidence. No issue was raised about the voluntariness of these other utterances.

[2] Pursuant to s. 589 of the Criminal Code, the parties also consented to the joinder of Count 3 – the allegation of attempt murder of Daniel Henry.

[3] On November 18, 2024, the Crown advised that they had disclosed a medical report documenting that PC Best was at a significant risk of harm if compelled to testify. Consequently, the parties agreed that the body worn camera recordings of PC Best met the test of necessity and reliability for admission under the principled exception to the hearsay rule.

[4] These times were the subject of an Agreed Statement of Facts admitted pursuant to s. 655 of the Criminal Code.

[5] A complete set of the hospital records (absent notes made by paramedics) were filed as part of an admission pursuant to s. 655 of the Criminal Code. The parties agreed that the contents of these records were admissible for the truth of their contents.

[6] Sgt. Cilia testified that this is the former term used in policing to refer to an emotionally disturbed person.

[7] The defendant was advised of his rights to counsel and cautioned by PC Stone, PC Gandhi, DC Tang and Det. McGinn.

[8] The non-consecutive nature of the sentences was not explained to the defendant.