COURT FILE NO.: CR-24-879 DATE: 2024-12-10

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty The King Michael R. Larrett, for the Crown, Applicant Applicant

- and -

J. C. Genevieve Eliany, for the Defendant, Respondent Respondent

HEARD: October 28, 2024

This Ruling is Subject to a Ban on Publication Pursuant to s. 648(1) of the Criminal Code of Canada and shall not be transmitted, reproduced, or broadcast in any manner until the jury is sequestered or a further order of this court allows.

An order has also been made in this pursuant to s. 486.4 of the Criminal Code of Canada directing that the identity of the Complainant and any information that could disclose such identity, shall not be published in any document or broadcast in any way subject to further order by a court of competent jurisdiction.

Pretrial Ruling – Application with respect to the Voluntariness of the Defendant’s Statement to the 911 Call Operator

The Honourable Justice M. Valente (Orally)

Nature of the Application

[1] The Respondent, J. C., is charged with three counts of sexual assault contrary to s. 271 of the Criminal Code of Canada, all of which are with respect to the Complainant, R.P., in relation to the dates of February 1, 2023 to February 28, 2023, March 27, 2023 to April 1, 2023 and August 19, 2023. The Respondent has elected to be tried by judge and jury.

[2] On the morning of August 19, 2023, at 11:19 am, the Respondent called 911 and spoke with Hamilton Police Services Communications’ operator, Joanne Pope (the “911 Call”). In the 911 Call, the Respondent stated, among other matters, that he wanted to be arrested for something he had done. The 911 Call was recorded.

[3] The Crown seeks an order that the utterances of the Respondent in the 911 Call be admissible at trial for the jury’s consideration and/or for the purposes of cross-examining the Respondent should he choose to testify.

[4] A voir dire was held with respect to the issue. The Crown called two police officers. The Defence called a paramedic as well as the Respondent as witnesses on the application. The 911 Call recording was filed as an exhibit in the application.

Issues to be Determined

[5] The issues to be determined on this application are two-fold. They are:

(1) Is the 911 call-taker a person of authority?

(2) If the answer is yes, then in that instance were the utterances of the Respondent in the 911 Call voluntary?

The Background Facts

[6] A summary of the background facts is taken primarily from the materials filed in the application as well as the viva voce evidence of the witnesses who testified at the voir dire hearing.

[7] The Respondent and the Complainant had been in a long-term relationship, separated, and were subsequently in an on and off relationship. They share three children, one of whom is autistic. On August 18, 2023, the Respondent cared for the children at the Complainant’s home as he regularly did when the Complainant was at work, and he was not.

[8] The Complainant returned home at approximately 1 a.m. on August 19, 2023, after her shift at work had ended, and some time socializing and drinking with friends. Upon the Complainant’s return home, the couple had sex. The Respondent and the Complainant argued after their sex. This argument was precipitated by a call from a friend of the Respondent who wished to come over to the Complainant’s house to use cocaine.

[9] The argument triggered the Respondent who went home and subsequently met up with his friend. Together, the Respondent and friend, used cocaine and drank vodka tallboy coolers from approximately 3 a.m. to 8 a.m., when the Respondent’s friend left.

[10] Once the Respondent’s friend had left, the Respondent called the Complainant to check in on her and in anticipation of repairing their on and off relationship. The Complainant told the Respondent that she had been too drunk to have consented to their sex of earlier that morning. The Complainant’s claim of having engaged in non-consensual sex caused the Respondent to become confused, distraught, and desperate and further motivated him to use cocaine and to drink. He wanted to kill himself.

[11] At some point during the morning of August 19, 2023, the Respondent decided to have himself arrested. While alone in a park, the Respondent made the 911 Call at 11:19 a.m.

[12] Some seventeen minutes later, and while still in the park, the Respondent was found by police constables Zacharias Plausini and Nicole Barton. After having cautioned the Respondent and speaking to the Complainant whom the Respondent had called on his cell phone, officer Plausini placed the Respondent under arrest.

[13] Because the Respondent had appeared to have consumed drugs or alcohol, or both, and was in an emotional state of despair, he was transported to Hamilton’s St. Joseph’s Hospital by paramedic, Tyler Wal. The Respondent was admitted involuntarily to hospital at approximately noon but ultimately medically cleared and discharged into police custody some 7 hours later on August 19, 2023.

The 911 Call

[14] In the 911 Call, the Respondent made the following, among other, statements:

(a) he was trying to turn himself in but “might be too f-ed up to make it”;

(b) he was a monster and should be in jail;

(c) he was looking for a way to remain in jail;

(d) he had just hurt someone he loved and cared about so much and did not know why he did it;

(e) he had hurt someone all the way through: definitely, spiritually, and physically;

(f) he told her to go to the hospital, and that he would turn himself in because that is what he should do, and he wanted to do; and

(g) he “hurt her so bad…[and] did the worst thing possible”.

The Evidence of the Respondent

[15] Apart from testifying with respect to the history of his relationship with the Complainant and the events of August 18 and 19, 2023 that preceded the 911 Call, the Respondent testified that he consumed approximately 2 grams of cocaine with his friend between 3 a.m. and 8 a.m. on August 19, 2023, and an approximate additional 2 grams of cocaine after what he described as the devastating call with the Complainant between 8:30 a.m. and shortly before the 911 Call. This amount of cocaine exceeded his normal consumption. The Respondent testified that he had not used cocaine for more than a dozen years and only started to use it again in May 2023 to help him stay alert at work as a night shift machine operator and during the day while he cared for the children. His normal daily consumption from May 2023 to the morning of the 911 Call had been a maximum of 1 gram of cocaine.

[16] The Respondent also testified that in the early morning hours of August 19, 2023, his friend brought over approximately 30 cans of tallboy vodka coolers with an alcohol content of between 10 and 15 percent of which he drank around 9 cans between 3 a.m. and 8 a.m. and an additional 12 cans after his friend left and shortly before speaking with the 911 operator. The Respondent stated that he was capable of consuming the 21 cans of vodka coolers with a relatively high alcohol content over an 8 hour period because he weighed some three hundred pounds in the summer of 2023.

[17] The Respondent’s evidence was that after caring for the children the previous day, fighting with the Complainant, and consuming the cocaine and alcohol, he “was not in the right head space”, he felt “numb”, his memory was fragmented, and he “was not fully aware of what was going on”. He did recall, however, making the 911 Call, calling the Complainant on his phone, asking her to speak with officer Plausini and formulating the intention to both turn himself into the police and kill himself so as to make the Complainant happy.

[18] The Respondent testified that his purpose in making the 911 Call was to get arrested.

[19] In cross-examination, he agreed that no one forced him to make the 911 Call and at no point did anyone force him to continue to speak to the 911 call-taker. On the other hand, the Respondent testified that in his hopeless and distraught emotional state, he did not think that what he had said in the 911 Call could be used against him and at no point during his conversation with the 911 operator did he have any indication that the 911 Call was recorded.

The Evidence of Officer Zacharias Plausini

[20] Officer Plausini testified that he was on general uniform patrol on August 19, 2023, and at approximately 11:30 a.m. he arrived at the park from which the Respondent made the 911 Call. He stated that because he had very little information about the purpose of his attendance, he felt that he may be ambushed, and for that reason, approached the Respondent with much attention.

[21] Constable Plausini found the Respondent laying down. The Respondent requested that he be arrested without telling the officer what he had done. In response, Constable Plausini cautioned the Respondent with respect to his right to silence which the Respondent acknowledged. After obtaining the Respondent’s approval to speak with the Complainant on the Respondent’s phone, the police constable testified that he arrested the Respondent for sexual assault and provided him with his ss. 10(a) and 10(b) Charter rights to which the Respondent once again acknowledged his understanding and additionally requested the advice of legal aid counsel.

[22] As a result of his conversation with the Respondent, officer Plausini concluded that the Respondent was in crisis and intoxicated. He reached this conclusion because the Respondent covered his face, his speech was slurred and fast and the Respondent was otherwise emotional. Notwithstanding the Respondent’s emotional crisis and state of intoxication, the police constable testified that he “was cognisant in all of his responses”. Officer Plausini made this determination not only because the Respondent expressed his understanding of his Charter rights but also because the Respondent was alert and responsive to his questions. In particular, officer Plausini concluded that the Respondent was capable of processing and responding to his questions because after each of his different and multiple enquiries of what the Respondent had done to warrant arrest, the Respondent answered in the same consistent way; specifically, he stated that what he had done was so horrible, so bad, he could not say it.

The Evidence of Officer Nicole Barton

[23] Like constable Plausini, officer Barton was on general uniform patrol on August 19, 2023, and was dispatched to assist her partner. Upon arriving at the park, constable Barton observed, within arm’s reach of the Respondent, his interaction with officer Plausini.

[24] According to her evidence, the Respondent’s speech was not slurred, and she did not recall him speaking quickly. It was apparent to officer Barton, however, that the Respondent had consumed alcohol. She also testified that the Respondent’s heart rate was fast. Because of his high heart rate, the Respondent was transported by ambulance to St. Joseph’s Hospital. Although the Respondent was intoxicated, police constable Barton’s observation was that he was sufficiently coherent to understand why she and her partner were dispatched to attend to him and to answer the questions put to him.

[25] Just as officer Barton had observed the conversation between her partner and the Respondent, so too did she observe the Respondent’s subsequent dialogue with paramedic, Tyler Wall. During her approximate 20 minutes of observation, she found the Respondent fully capable of answering the paramedic’s questions.

Evidence of Paramedic Tyler Wall

[26] Paramedic Tyler Wall had no independent recollection of his interaction with the Respondent on August 19, 2023. His testimony was reliant entirely on his ambulance call report which documented that the Respondent had been found on the ground in mild distress with a high heart rate that resolved prior to the Respondent’s admission. The ambulance call report also noted that no medication was required to address the Respondent’s heart rate or any other medical issue.

[27] There is a conflict in the call report as to whether the Respondent was diaphoretic. Based on the St. Joseph’s Hospital records entered as an exhibit on the voir dire, I am prepared to find, however, that the Respondent was indeed sweating heavily at the time he was transported to hospital. Tyler Wall opined that based on his 13 years of experience as a paramedic, people who use large amounts of cocaine are diaphoretic.

Position of the Parties

[28] The Crown’s position is that the 911 Call operator was not a person of authority, and therefore, it follows that the confessions rule does not apply and the Respondent’s utterances in the 911 Call are admissible. If, however, this Court finds that the confessions rule does apply, the Crown’s position is that the Respondent’s 911 Call utterances are nonetheless admissible because the Respondent’s statements were voluntary, and specifically, the Respondent had an operating mind at the time of the 911 Call.

[29] On the other hand, it is the submission of the Defence that the confessions rule does apply because in the circumstances of this case, the emergency operator was a person in authority. While the Defence agrees that the confessions rule mandates the Respondent’s 911 Call statements be voluntary to be admissible, it argues that the utterances was not voluntary by reason of the Respondent’s level of intoxication and dark emotional state which prevented him from having an operating mind at the relevant time.

Guiding Legal Principles

[30] As the Supreme Court made clear in R v. Hodgson, 1998 CarswellOnt 3418 (‘Hodgson’), at para 14, “Evidence of a confession has always been accorded great weight by triers of fact.” For this reason and to guard against the risk that a confession obtained by improper means results in an unjust conviction, the potential unfairness of admitting a confession is addressed by a consideration of two factors. First, was the receiver of the confession a person in authority, and if so, second, was the confession made voluntarily? (see: Hodgson, at para 14). The requirement that the confession be made voluntarily is otherwise known as the confessions rule.

[31] “The person in authority requirement generally refers to anyone formally engaged in the arrest, detention, examination or prosecution of the accused … This definition may be enlarged to encompass persons who are deemed to be persons in authority as a result of circumstances surrounding the making of the statement” (see: Hodgson, at para 16).

[32] In its 2005 decision in R v. Grandinetti, 2005 SCC 5 (‘Grandinetti’), the Supreme Court quoted with approval the trial judge’s conclusion of who may fit the definition of a person in authority:

[R]eason and common sense [sic] dictates that when the cases speak of a person in authority as one who is capable of controlling or influencing the course of the proceedings, it is from the perspective of someone who is involved in the investigation, the apprehension and prosecution of a criminal offence resulting in a conviction, an agent of the police or someone working in collaboration with the police (at para 39).

[33] The test of who is a “person in authority” focuses on the accused’s perception of the person to whom they are making the statement, and is therefore, largely subjective. The question to be answered is whether the accused perceived the recipient of their confession capable of influencing the course of the investigation and prosecution (see: Grandinetti, at para 38). While there is a subjective element to the analysis, so too is there an objective element. This objective element requires that the accused’s belief that they are speaking to a person in authority be objectively reasonable (see: Grandinetti, at para 39).

[34] The evidence required to establish whether the recipient of the accused’s confession is a person in authority will often lie primarily with the accused (see: Hodgson, at para 37). Once the defence establishes that there is an evidentiary basis to deem the recipient of the accused’s confession as a person in authority, the burden shifts to the Crown to establish beyond a reasonable doubt either that the receiver is not a person in authority, or in the alternative, if the burden cannot be satisfied that the statement was made voluntarily (see: Hodgson, at para 38).

[35] The Supreme Court has recently affirmed the importance of the voluntariness enquiry and its constituent elements. In R v. Beaver, 2022 SCC 54, at paras 47 and 48, the Court stated:

Voluntariness, broadly defined, is the “touchstone” of the confessions rule. Voluntariness is a shorthand for a complex of values engaging policy concerns related to not only the reliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and repute of the criminal justice system. Involuntary confessions can be unreliable, unfair, and harmful to the reputation of the criminal justice system. A statement may be involuntary “because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self-incrimination and the right to silence”.

The application of the confessions rule is necessarily flexible and contextual. When assessing the voluntariness of a confession, the “trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority”. The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would “shock the community”, and the presence or absence of a police caution. These factors are not a checklist that supplants a contextual inquiry.

[36] The Crown and Defence agree that based on the circumstances of this case, the relevant factor for this court’s determination of the voluntariness of the Respondent’s 911 Call utterances is whether the Respondent had an operating mind at the relevant time. Both the Crown and Defence also agree that the threshold for an operating mind is low.

[37] In R v. Whittle, [1994] 2 S.C.R. 914 (‘Whittle”), at para 46, Sopinka J. described the operating mind test in this way:

The operating mind test, therefore, requires that the accused posses a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed, it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her best interest.

[38] More recently, Iacobucci J., in R v. Oickle, 2000 SCC 38 (‘Oickle’), at para 63, agreed with Sopinka J.’s explanation that the operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment” (at para 63). The inquiry to be conducted by the trial judge is not a discrete inquiry but rather part of the totality of the circumstances that are to be considered in deciding whether a statement was voluntarily (see: Oickle, at para 63; R v. Shchogolyev, 2024 ONSC 584 (‘Shchogolyev’), at para 11).

[39] Most recently, Kasirer J., writing for the Majority of the Supreme Court in R v. Tessier, 2022 SCC 35 (‘Tessier’), at para 52, observed that the operating mind cases of the Court “merely refer to the limited cognitive ability to comprehend” and the “default assumption in the cases is that, absent a cognitive impairment, an operating mind exists”.

[40] The Court in Tessier observed that by explaining in Whittle that an accused is not entitled to a good or wise choice, Sopinka J. “implicitly rejected” the suggestion “that voluntariness might require a more thorough understanding of the consequences of speech” (at para 53).

[41] The Supreme Court in Tessier also made clear that proof of the accused’s actual knowledge of for example, an appreciation of what they said to a person in authority and that anything said could be taken down in evidence,

is not consonant with the law as it stands and would amount to an over extension of the operating mind doctrine that risks upsetting the balance between the individual and societal interests upon which the confessions rule is predicated … [T]he question of voluntariness is an objective one, though the individual characteristics of the accused are relevant in applying the objective test (at para 56).

Analysis

[42] As I have previously referenced, the analysis of whether the 911 Call operator was a person in authority has both subjective and objective components. The subjective component focuses on whether the accused believed the recipient of their statement to have the power to influence and legal proceedings resulting from the statement. The objective component asks whether the accused’s belief is objectively reasonable (see: Shchogolyev, at para 94).

[43] In all of the circumstances, I accept the Defence position that the Respondent understood that the 911 call-taker would facilitate an arrest, or in other words, the Respondent subjectively believed the 911 call-taker was someone with authority over him and that his belief was objectively reasonable. The Respondent’s first statement to the call-taker was that he was “trying to turn [himself] in”. He described himself as someone who “should be in jail”. He advised the emergency operator that he had hurt someone whom he loved and cared about. The Respondent gave his location and urged the operator to send the police to arrest him. He was waiting for police at the location where the 911 operator told him to remain until they arrived while talking to the emergency operator. The police were the first to arrive at the Respondent’s park location and an integral part of the 911 response. In all of the circumstances, I find that the 911 Call operator was an agent of the police.

[44] The Crown relies on this court’s decision in R v. Paquette, [1999] O.J. No. 1277 (‘Paquette’), to support its position that the 911call-taker is not a person in authority. I do not find, however, that the decision is persuasive. In Paquette, both the Crown and Defence agreed that the emergency operator was not an agent of the police or otherwise involved in the arrest, detention, examination, or prosecution of the accused. Moreover, in that 1999 ruling, this court found no evidence to suggest that the accused reasonably believed the 911 Call operator to be a person in authority (see: Paquette, at para 72).

[45] Having found that the emergency operator was a person in authority, my next task is to determine if the Respondent’s utterances to the call-taker were voluntary, and specifically in the circumstances of this case, did the Respondent have an operating mind at the time of the call?

[46] The Crown and the Defence are aligned that the threshold for an operating mind is low, that no inquiry is necessary as to whether the defendant is capable of making a good or wise choice or one that is in their best interest and that actual knowledge on behalf of the defendant need not be proved but rather the inquiry is an objective test based on the defendant’s individual characteristics. The Defence submits, however, that the Respondent lacked the requisite cognitive capacity of an operating mind at the time of his 911 Call. Although he may have had sufficient capacity to appreciate that the 911 operator was a person in authority who might facilitate his arrest, because of his cognitive impairment resulting from cocaine, alcohol and his depressed emotional state, the Respondent did not understand that his utterances could be used to his detriment.

[47] Indeed, according to the Respondent’s evidence in the 8 hours preceding the 911 Call, he had consumed 4 grams of cocaine, 3 grams more than his daily average consumption and some 21 tallboy cans of a beverage with an alcohol content of between 10 and 15 percent. In addition, the Respondent had just been rejected by the most important person in his life apart from his children.. I accept his evidence that on the morning of August 19, 2023, he was desperate and felt all of numb, helpless, and suicidal. The Respondent’s confused state on the morning of the 911 Call is perhaps best demonstrated by his inability to provide the Complainant’s address to the emergency operator although he had previously lived across the street and had been at her home almost every day for several months.

[48] Officer Plausini testified that the Respondent was intoxicated and distraught when they spoke immediately after the 911 Call and out of concern for the Respondent’s well being, he called an ambulance. The officer also noted that the Respondent’s speech was slurred, and he spoke quickly.

[49] Officer Barton confirmed in her testimony that the Respondent had appeared to have consumed alcohol or drugs but denied the Respondent having slurred speech and could not recall if he spoke quickly.

[50] For his part, paramedic Tyler Wall testified that he found the Respondent to be in mild distress with a high heart rate.

[51] Apart from my concern with respect to the reliability of the Respondent’s testimony concerning the amount of his alcohol consumption, which to her credit, Defence counsel concedes to be “shockingly high”, the evidence supporting a finding that the Respondent did not possess an operating mind is to be considered in light of all of the evidence. This evidence includes the following:

[52] Firstly, in the 911 Call with the emergency operator, the Respondent:

• answered appropriately most of the questions put to him;
• was able without any apparent difficulty to provide and spell his first and last name as well as to give such details as his ethnicity, date of birth and cell phone number;
• described his age, height, weight, clothes, and head scars with specificity;
• was able to read and spell the name of the park in which he was sitting, as well as the park’s location;
• asked for two specific officers whom were known to him to attend at the park to arrest him;
• consciously and repeatedly avoided answering any questions related to the reason for his proposed arrest;
• purposefully did not want the police to attend the Complainant’s home because their presence would frighten the children living there, and in particular, his autistic son;
• although he was unable to provide the Complainant’s address, he was able to name the street on which she lived and the nearest cross street; and
• provided and spelled the Complainant’s first and last name as well as her age and cell phone number.

[53] Secondly, officer Plausini testified that the Respondent was able to process and respond to all of his questions. The officer stated that the Respondent was “cognisant in all of his responses”. The Respondent also confirmed that he understood both the officer’s caution and his s. 10 Charter rights. Officer Plausini further testified that upon his arrest, the Respondent expressed no surprise; rather the reason for the Respondents’ arrest was apparent to him.

[54] Officer Barton corroborated the evidence of Constable Plausini that the Respondent was able to answer her colleague’s questions without issue as well as the questions of paramedic Wall.

[55] Paramedics Wall’s evidence is that although he found the Respondent in mild distress with a high heart rate, the Respondent’s heart rate resolved itself without medication prior to arriving at St. Joseph’s Hospital.

[56] Finally, notwithstanding that the Respondent was involuntarily admitted to hospital for observation and treatment due to his expressed suicidal ideations, the hospital records confirm that the Respondent was not medicated and did not suffer from hallucinations, psychosis, mania, or hypomania. When the Respondent was discharged to police only some 7 hours after having been admitted, the hospital records also stipulate that the Respondent denied any suicidal intent but rather wanted to live for his children.

[57] When I consider all of the circumstances together, I am satisfied beyond a reasonable doubt that the Respondent possessed the required limited degree of cognitive ability to understand what he was saying in the 911 Call and to comprehend that his statements may be used against him. In other words, I am satisfied beyond a reasonable doubt that the circumstances as a whole ground a finding that the Respondent’s statements in the 911 Call were made voluntarily.

[58] The Crown submits that the fact the Respondent was able to formulate a plan to turn himself into the police and execute the plan even after consuming cocaine and alcohol suggests that the Respondent had an operating mind. While I make no finding in that respect, I have considered it as one of the many circumstances that have caused me to conclude that the Respondent possessed the limited amount of cognitive ability necessary to have an operating mind at the time of the 911 Call.

[59] The Defence relies on the decision of this Court in R v. Amey, 2013 ONSC 5108, [2013] O.J. No. 3789 (‘Amey’) in support of its submission that the Respondent lacked the requisite operating mind. The facts in Amey are distinguishable from those in this case. Not only did witnesses describe the accused as “out of it” and “like he was in another world”, but the court also found Mr. Amey to be in a “complete disadvantage” in his intoxicated and bleeding state to the officers who surrounded him (see: Amey, at para 78). Moreover, the court also concluded that the accused had no idea that he had a choice not to talk to the police. In those very different circumstances, Gilmore J. found that the accused did not have an operating mind.

Disposition

[60] For all of the above reasons, I find that the Respondent’s 911 Call statements are admissible at trial. The Crown’s application to permit the admission of the Respondent’s 911 Call utterances into evidence at trial and / or for the purpose of cross-examining the Respondent should he choose to testify is granted.

Justice M. Valente Released: December 10, 2024