Ontario Superior Court of Justice

Court File No.: 22-11402107
Date: 2025-04-17

BETWEEN:
His Majesty the King, Applicant
– and –
A.O., Respondent

Applicant Counsel: Lindsay Little
Respondent Counsel: Marianne Salih
Heard: March 26, 2025

Ruling on Voluntariness
Anne McVey

Introduction

[1] On April 2, 2025, a jury found A.O. not guilty of sexual assault and assault by choking. On March 26, 2025, pursuant to a bottom-line ruling given during trial, I found that A.O.’s post-arrest statement to the police was given voluntarily within the meaning of the common law confessions rule. These are my complete reasons.

[2] A.O. was arrested on October 22, 2021. After speaking with counsel and being provided with a primary and secondary caution, A.O. provided an approximately one-hour-and-twenty-minute statement to the lead investigator, Detective Marie-Josee Seguin.

[3] A.O. concedes that the only live issue regarding the voluntariness of his statement is whether he had an operating mind throughout the interview process. A.O. argues that he was psychotic during the interview, and, as a result, he lacked the capacity at the time to understand that his statement could be used against him at trial.

Background

[4] On October 15, 2021, Det. Seguin called A.O. and asked that he turn himself in on outstanding charges. This was the first time Det. Seguin ever spoke to A.O. Unsurprisingly, A.O. was upset at the prospect of being charged and begged Det. Seguin not to charge him. A.O. told Det. Seguin that he was struggling with psychosis. Det. Seguin did not ask him further questions about that issue. She did not feel that his behavior on the phone was indicative of active psychosis as A.O. appeared to understand the information she conveyed to him, and he was expressing himself clearly. A.O. agreed to turn himself in on October 20, 2021.

[5] Not long after Det. Seguin ended her call with A.O., A.O.’s brother called her back. The brother asked Det. Seguin questions about A.O.’s impending arrest. Det. Seguin advised the brother that she could not speak with him regarding those issues without A.O.’s consent. A.O. subsequently granted Det. Seguin permission to speak with his brother. Det. Seguin provided the brother the same information that she had provided to A.O. earlier on the phone.

[6] On October 19, 2021, the day before A.O. was scheduled to turn himself in, A.O.’s brother called Det. Seguin and asked if she could delay the arrest to provide A.O. more time to find counsel. Det. Seguin agreed to a new date of October 22, 2021.

[7] On October 20, 2021, the original date on which A.O. was to turn himself in, A.O. called Det. Seguin to ask whether he still had to turn himself in on that day. Det. Seguin confirmed that the date had been changed to October 22, 2021. During the call, A.O. again pleaded with Det. Seguin not to charge him. After the call ended, A.O.’s brother called Det. Seguin and asked her to ignore any future calls from A.O. because speaking with her upsets him. Det. Seguin had no further phone conversations with A.O.

[8] Unbeknownst to Det. Seguin, A.O. was living in Mississauga with his family at the time she reached out to him regarding the charges. In mid-October 2021, A.O.’s mother insisted that A.O. return home from Ottawa and attend school remotely because of concerns she had regarding his mental health. A.O. had a recent history of experiencing psychotic symptoms, an issue to which I will now turn.

[9] On June 2, 2021, at the behest of his family, A.O. attended the emergency department at the Centre for Addiction and Mental Health because he was experiencing psychotic symptoms potentially related to alcohol and cannabis use. He was discharged with a diagnosis of early-stage psychosis and given a prescription for risperidone and a follow-up appointment at the CAMH clinic. During his one-day visit, A.O. disclosed to his mother that he felt the hospital staff were trying to poison him.

[10] A.O. attended the follow-up appointment on June 17, 2021. A.O. advised the psychiatrist that he was no longer experiencing symptoms and wished to “get on with his life.” Efforts at that time to further engage A.O. were unsuccessful. His behavior stabilized between July and August 2021, though did not necessarily return to baseline. A.O.’s mother noticed further warning signs of deteriorating mental health in early October 2021, which is what prompted her to move A.O. back home. On a daily basis, family members encouraged A.O. to attend the hospital to receive medication as he had done in June 2021. He refused.

[11] Due to A.O.’s mother’s concerns regarding A.O.’s mental health, she arranged for him to travel to Ottawa in advance of turning himself in. She also asked A.O.’s brother to travel with him. A.O.’s mother could not escort A.O. because she had just started a new job. A.O. and his brother arranged to stay with a friend. Two to three days before turning himself in, A.O. travelled to Ottawa with his brother.

[12] On October 21, 2021, the day before A.O. was to turn himself in, A.O.’s brother called his mother and told her that A.O. was acting out and that he could not manage him. A.O.’s mother immediately travelled by bus to Ottawa, arriving at the friend’s home at approximately 9:00pm. There, she found the brother and the friend locked out of the apartment. She could hear A.O. ranting inside. At first, A.O. did not believe that his mother was truly there since he believed her to be in Mississauga. A.O.’s mother and brother eventually gained access to the apartment. A.O. could not understand how his mother could be in two places at the same time. A.O.’s thoughts were disorganized and paranoid. He told his mother that “everybody hates him,” “people are jealous of him,” and she should get rid of all her credit and bank cards. A.O.’s mother tried to calm him down and convince him to go to the hospital. A.O. refused and eventually locked himself in the bedroom.

[13] A.O.’s mother called the police in the hopes they could take A.O. to the hospital. After the officers arrived, A.O. eventually opened the bedroom door. He spoke with the police in the living room, though in a somewhat distracted state. A.O. appeared to understand that he was speaking with the police. A.O. told the police that he did not want to go to the hospital.

[14] The police advised A.O.’s mother that unless A.O. was harmful to himself or others, or was otherwise destructive, they could not take him to the hospital against his will. The evidence of Constable Austin Masneri, one of the responding officers, was tendered in written form on consent. He was not cross-examined. Cst. Masneri has no present-day memory of the call. However, he adopted and elaborated on the contents of the Detailed Call Summary relating to the incident, wherein he described A.O. as cooperative and apologetic. The officer asserted that if A.O. had been floridly psychotic, he would have considered bringing him to the hospital to see a doctor. Based on his clearance remarks in the Detailed Call Summary, Cst. Masneri stated that he would have had no such concerns.

[15] After the police left, A.O. agreed to lie down. He spent the evening in his bedroom with the door shut while his mother sat in the living room outside the door. A.O. remained quiet and calm throughout the night. A.O.’s mother presumes he was sleeping.

[16] At approximately 6:00am on October 22, 2021, A.O.’s mother returned to her hotel room to freshen up. She was not gone long. She went back to the apartment around 7:00am. A.O. was awake by that time and cooperative. He understood that he had to go to the police station that morning. He agreed to have a bath before leaving, though refused to wear the clothing picked out by his mother.

[17] A.O. and his mother and brother left the apartment and first attended A.O.’s lawyer’s office for a meeting. A.O.’s mother testified that she told the lawyer that A.O. had to go to the hospital and asked him to call the police to delay the appointment for that purpose. She testified that she presumed the lawyer called the police as requested, though she never actually saw or heard him do so. The lawyer later told them that they had to attend the police station. A.O.’s mother testified that A.O. appeared to understand that he was speaking with a lawyer.

[18] A.O., his mother, and his brother then left for the police station. They took a taxi. During the short drive, A.O. did not exhibit delusionary thinking. When they arrived, Det. Seguin and another officer met them in the lobby. A.O.’s mother testified that she told the police that A.O. “was not feeling well” but that the officers did not respond. She did not specifically tell the officers that A.O. was experiencing a mental health episode.

[19] The officers informed A.O. that he could not bring his backpack with him to the interview room unless they searched it first. A.O.’s mother tried to convince him to leave the bag with her. A.O. refused. He was adamant about keeping his bag, for no apparent reason.

[20] A.O. followed Det. Seguin’s instructions as she escorted him to the interview room. Det. Seguin read A.O. both a caution and secondary caution, as well as his rights to counsel.

[21] After the interview, A.O.’s mother and brother took him to the hospital. They tried to persuade A.O. that it would “be like the last time” and that he would be released after receiving medication. A.O. accused his mother and brother of being jealous of him and wanting to destroy him. After arriving at the hospital, A.O. was initially held on a Form 1 under the Mental Health Act, which permits a psychiatric facility to involuntarily detain a person for up to 72 hours for the purposes of an assessment.

[22] At approximately 5:00pm, A.O. disclosed to the treating psychiatrist that he felt he was bringing bad events to people in his life, that he did not feel safe, and that the people coming after him could also hurt those close to him. He denied any suicidal ideations. The psychiatrist noted that A.O. struggled overall to give a logical history or account of his difficulties. A.O. was fearful of the cameras in the room and accused the psychiatrist of trying to confuse him with words. A.O. presented with thought disorder and appeared distracted and paranoid. A.O. remained in the hospital for approximately three weeks.

[23] Much of the above history involving A.O. emanates from the evidence of A.O.’s mother. I accept her evidence without reservation. She struck me as a fair and measured witness who was doing her best to communicate the details of what must have been an overwhelming and frightening experience for her as a mother.

[24] I also have no difficulty accepting the evidence of Det. Seguin in terms of her dealings with A.O. on the phone and otherwise. She, too, was a credible witness. I do not consider her evidence at odds with that of A.O.’s mother. Det. Seguin testified that she did not recall A.O.’s mother telling her that A.O. “did not feel well” on the day of the interview. She had no notes of such a comment but ceded the possibility that it happened. In my view, having no memory of such an exchange is not surprising in the circumstances. To an objective observer, A.O. looks physically fine in the videotaped statement; A.O.’s mother is softspoken and she did not mention that A.O. was suffering from mental health issues; and Det. Seguin had already decided to release A.O. after the interview.

Analysis

[25] The Crown bears the onus of proving voluntariness beyond a reasonable doubt. The assessment of voluntariness is fact-specific and contextual: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 71. When determining the voluntariness of a statement, the entire circumstances surrounding it, including the individual characteristics of the accused, are relevant: Oickle, at para. 42. There are no hard and fast rules that govern the assessment of voluntariness because of the variety of circumstances that can vitiate the voluntariness of a confession: Oickle, at para. 47. A rigid, analytical approach will “inevitably result in a rule that is both over- and under-inclusive”: Oickle, at para. 47.

[26] Here, I must determine whether the Crown has proven beyond a reasonable doubt that A.O. had an operating mind when he provided his statement. To do so, the Crown must prove that A.O. had the cognitive capacity to understand both what he was saying and that the information he provided could be used against him at trial: R. v. Whittle, [1994] 2 S.C.R. 914, at para. 49. The Crown need not establish a higher degree of cognitive capacity: Whittle, at para. 54. An accused person can possess an operating mind while also manifesting psychotic symptoms: see Whittle.

[27] In Whittle, the Supreme Court addressed how the confessions rule applies to accused persons who suffer from some form of mental incapacity. There, the accused provided multiple statements to the police implicating himself in a murder committed the year before. Based on their present and past dealings with the accused, the detectives suspected that he suffered from schizophrenia. During his statements to the police, the accused intermittently spoke of someone “being in his brain” or “having fog in his head.” The interviewing officer testified that some of what the accused had said to him was “divorced from reality.” A lawyer who spoke with the accused shortly before one of his interviews testified that the accused told him that he had “voices in his head, that he had to talk, that he had a pain in his head, and that he could see dead babies’ faces in cement” and that “he needed to talk to the police to stop the voices.”

[28] Two psychiatrists testified on the voluntariness voir dire. Both testified that the accused was schizophrenic and that he was manifesting related symptoms during his various interviews. The psychiatrist who testified for the defence opined that although the accused may have been rationally aware of the consequences of giving a statement, it was the voices in his head versus rational decision-making that drove him to speak: Whittle, at para. 15.

[29] The Court found that the accused’s statements were given voluntarily. The inner voices that prompted the accused to speak were not a basis for exclusion provided the statement was otherwise admissible pursuant to the confessions rule: Whittle, at para. 54.

[30] I appreciate that in Whittle the Court had the benefit of multiple expert opinions that Mr. Whittle had the capacity to understand the consequences of making a statement. I have no similar evidence before me. However, the ultimate finding in Whittle makes plain that the presence of psychotic symptoms, including delusionary or paranoid thinking, does not on its own undermine a finding of voluntariness provided the Crown otherwise proves that the accused possessed the capacity to understand what they were saying and the potential legal impact of saying it. Proving capacity in the face of mental illness does not necessarily require expert evidence.

[31] For the following reasons, I am satisfied beyond a reasonable doubt that A.O. had the capacity to understand what he was saying, and the caution that Det. Seguin read to him during his arrest:

• A.O. looks relatively relaxed during the interview and is not floridly psychotic.
• A.O.’s answers are for the most part direct and responsive. He rationally and coherently describes the incident under investigation in various levels of detail. He talks logically about his feelings for the complainant at the time and why he did or did not do certain things.
• A.O. is analytical and challenges the officer on various points. For example, when the officer put to A.O. that he had “ripped her top off,” A.O. answers, “if I ripped her top off, how does she walk back home?” He further opines that given their similarity in size, he doubts that he could have physically dominated the complainant as alleged. Finally, A.O. impressively spars with Det. Seguin over the legalities of him possessing a nude image of the complainant that she purportedly sent to him.
• A.O. repeatedly tries to convince Det. Seguin not to lay charges. He fully understands her decision-making role in that regard.
• A.O. is insightful at times. When the officer describes the text messages sent by A.O. to the complainant, he answered, “I said a lot of bad things. But, to be honest, I was really desperate to get her back.”
• A.O. understands cause and effect throughout the interview. He believes that if he convinces Det. Seguin that he will stop contacting the complainant, she may decide not to lay charges. He understands that if Det. Seguin lays charges that he could face a jail sentence, if convicted. A.O. understands that registering on the Sex Offender Registry could have a negative impact on any future relationships. Finally, A.O. appreciates that being charged with serious offences could negatively impact his family.
• A.O. has the presence of mind to appreciate the benefits of reading the documentation provided by Det. Seguin regarding his release conditions. After the officer summarizes the documentation and asks A.O. to sign it, he asks if he can read it. He then takes the opportunity to do exactly that before signing.
• A.O. can follow the officer’s directions regarding the release documentation as well as surrendering his passport.
• A.O. seeks clarification when he does not understand. After Det. Seguin reviews the Duty to Register with A.O., he asks the officer to clarify his obligations.
• A.O. understands that the officer may speak with his brother and mother and seeks to clarify what, if anything, she is going to tell them. A.O. has the presence of mind to control the flow of information.

[32] To be clear, I accept that A.O. was experiencing difficulties with his mental health on October 22, 2021. That is abundantly plain from the record before me. However, with that said, though not strictly relevant to the issue I must decide, I accept that those struggles, though obvious now, would not have been obvious to Det. Seguin who was unaware of A.O.’s detailed medical history, his troubling behavior both the evening before and the morning of the interview, and A.O.’s associated medical records.

[33] When one views A.O.’s statement through the lens of his medical history, modest indications that A.O.’s psychosis was manifesting during the interview become apparent. There are at times lengthy periods of silence where A.O. appears to stare off into the distance. Though I appreciate that in general this is not unusual behavior on the part of an accused during an interview, in the circumstances of this case, I accept that this behavior was not simply a reflection of A.O. exercising his right to silence. A.O.’s mother testified that during episodes of diminished mental health, A.O. often stares straight ahead as though he “is not even with us.” I accept that during these moments, A.O. is having difficulty focusing. But a lack of focus, either on its own or in conjunction with the other factors present in this case, is not synonymous with a lack of operating mind.

[34] Further, during the interview, A.O. makes a handful of comments that appear rooted in paranoid thinking. For example, he states that the complainant used to “get people to just try and bully me and take my stuff” and that the complainant may now be dating a third party who is controlling her so they can “take all his shit and get [him] locked up.” The evidentiary record discloses no rational basis for these statements. In my view, they are far more consistent with paranoid thinking as a symptom of psychosis. A.O.’s mother testified that A.O. would often accuse family members of being jealous of him and wanting to “take his stuff.” These paranoid statements also go some distance in explaining A.O.’s unwillingness to leave his backpack behind in the lobby of the police station prior to the interview.

[35] With all that said, despite those struggles, I am satisfied that A.O. was nonetheless capable of understanding the caution and directions given by Det. Seguin. He understood the questions he was asked; he understood the directions he was given; he understood that Det. Seguin had the discretion to lay or not lay charges; he was able to analyze information; and he understood cause and effect. Consequently, I have no difficulty finding that he had the capacity to understand that his statement could be used against him in future proceedings. Like in Whittle, A.O.’s somewhat strange utterances and otherwise unusual behavior constituted only a small portion of his entire statement: see Whittle, at para. 21. Despite the psychosis, A.O.’s statements about the alleged offences were reasonable and rational. I am satisfied that he had the capacity to understand what he was saying and the fact that it could be used against him in future proceedings.

[36] The Crown’s application is granted.

Anne McVey
Released: April 17, 2025