WARNING
The Court hearing this matter directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
C.J.R.
Respondent
Ryan Makasare, for the Crown
R. Michael Rodé, for the Respondent
HEARD: November 22, 2024
Lacelle J.
REASONS FOR DECISION
(Voluntariness voir dire)
1The accused, C.J.R., is charged with sexual assault (x2), forcible confinement (x2) and criminal harassment. He is alleged to have committed these offences in the fall of 2022. The complainant is a woman with whom he went to college. The accused is alleged to have sexually assaulted and confined the complainant in his car, and again at his home. Thereafter, he is alleged to have repeatedly communicated with her thereby committing the offence of criminal harassment.
2The accused was interviewed by police following his arrest in May of 2023. The Crown seeks a ruling that the statement of the accused is voluntary and admissible at his trial.
3Following the hearing to determine the admissibility of the statement, the parties were advised that I had determined that the Crown had proved the voluntariness of the statement beyond a reasonable doubt. The statement is accordingly admissible at the accused’s trial. These are my reasons for that ruling.
The legal principles
4The legal principles are well settled, and I have applied the law as it is set out in R. v. Oickle, 2000 SCC 38, R. v. Singh, 2007 SCC 48 and other cases.
5It is worth emphasizing certain principles in the context of this ruling, and in particular that:
a. The voluntariness of a statement made to a person in authority must be proved by the Crown beyond a reasonable doubt;
b. The analysis is always contextual;
c. The court must consider various issues, including but not limited to whether there were any threats or inducements made, whether the statement was given in an atmosphere of oppression, and whether there has been any police trickery;
d. For a statement to be voluntary, the Crown must prove that the accused had an operating mind;
e. Generally, the operating mind doctrine requires the Crown to show that the accused possessed the limited cognitive ability to understand what they were saying and to comprehend that the statement might be used as evidence in criminal proceedings: R. v. Tessier 2022 SCC 35 at para. 8; Whittle at para. 37. The Crown must show 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;
f. A meaningful choice made by the accused need not be good or wise to meet the requirements of the operating mind doctrine: Tessier at para. 53;
g. Further, the operating mind test set out in Whittle does not require proof of actual knowledge that the accused did not have to say anything to the police and that anything said could be taken down in evidence. However, where it is established, proof of actual knowledge can weigh in favour of voluntariness: Tessier at paras. 54, 57 and 89. As established in Horvath, and reiterated in Tessier, “voluntariness implies an awareness of what is at stake” [emphasis added]: Tessier at para. 57;
h. The Crown need not prove that the accused subjectively understood the right to silence and the consequences of speaking, but where it can, this will generally prove to be persuasive evidence of voluntariness: Tessier at paras. 12 and 89;
i. The Crown bears the onus of establishing a sufficient record of the interaction between the police and the accused. Where the accused is in custody and recording facilities are readily available, the failure to record interactions with the accused inevitably makes those interactions suspect: R. v. Moore-McFarlane, 2001 CanLII 6363 (ON CA), [2001] O.J. No. 4646 (C.A.) per Charron J.A. (as she then was);
j. At the same time, it is not the law that the police must audio and/or video record all of their interactions with detainees: Brazier at para. 76; R. v. Williams, 2021 ONSC 5497;
k. The focus of a voluntariness inquiry is “on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will”: Tessier at para. 11, citing Singh at para. 36.
The evidence on the voir dire
The undisputed facts
6There is no dispute about the circumstances in which the statement was made. I find the following facts have been proved beyond a reasonable doubt.
7On May 18, 2023, the accused was arrested at 9:17 a.m. in front of his house. Officers had attended the scene for other purposes, but upon seeing him collecting recycling bins, they elected to arrest the accused.
8The accused was told why he was arrested by the OIC, PC Cook. He was given his rights to counsel and caution from the police notebook. The accused stated he understood. He said he did not have a lawyer and would like to speak to duty counsel.
9During his dealings with the three officers at the scene of his arrest, there was no indication that the accused was under the influence of any substance or injured in any way. He did not appear to be in any distress. He made no complaints about his physical or mental condition.
10Once at the detachment, the accused was booked and given an opportunity to speak with duty counsel. He told the officers he was satisfied with the advice he had been given.
11At 11:12 a.m., the accused was escorted to the interview room. The interview started a few minutes later and was concluded at 11:57 a.m.
The videotaped statement
12The interview was conducted by PC Cook and was recorded by video. During the interview, the accused told PC Cook that he had exercised his right to speak to duty counsel and he understood why he was at the police station. He said he understood his right not to communicate with the officer, that this right did not end, and that it was “always intact”. The accused said he had been treated fairly by police and no one had threatened or hurt him.
13The accused at one point early in the interview told the officer that this was his first arrest so he was a “little bit scared”. The officer told him it was only fair to give him an opportunity to tell his side of the story, and that is why they were there. The accused replied “okay”. After confirming he understood the charges he was facing, and after the officer asked him “what’s your thought” about the allegations he was facing, the accused began to provide his own account of events, beginning with how the relationship with the complainant started. He continued his account of events and readily responded to questions asked by the officer.
14At one point, the officer asked the accused about a comment he had made when walking to the interview room from the cells. The accused agreed he had said he had cerebral palsy. The officer asked how this affected him “day-to-day”. The accused said: “I don’t let it affect me as much. Just when it gets really cold, like in the winter, my legs really bother me … And I was born with it, so … I don’t let it get in the way of me doing stuff”. He went on to explain how he lifted carpet for a living and, when assisted by another person, could lift carpet rolls of 300-400 lbs. There was no other discussion of any medical issues.
15As the interview progressed, the officer put some of the complainant’s allegations to the accused. The officer asked: “So, in the car, you wouldn’t have held her down and had sex with her against her will?” The accused replied: “No. … No. Not one bit”.
16Not long after this exchange, the officer told the accused his phone had been seized and would be analyzed. The officer suggested that sometimes when a person isn’t truthful, the phone will speak for them “because you can’t cover that up”.
17At this point, the accused offered that the complainant had sent him photos and wanted to have sex over the phone. The officer told the accused he would not be charged for receiving nude photos, and then asked the accused whether the phone would show that he was being manipulative, and that he was asked to stop communicating with the complainant but continued. The accused said “I was kinda manipulative in the beginning but I grew out of that. And I fell I love, so”. He denied that he and the complainant had discussed their intimacy over the phone, or the alleged sexual assaults. When asked whether he ever apologized for what he did to the complainant, he said: “Yeah, I did”. The officer asked about what he had apologized for. The exchange went on as follows:
COOK: What did you apologize for?
R.: For not being truthful, being manipulative, and a couple other things that I can’t remember, because it was so far back.
COOK: You can remember, C.
R.: I believe it was …
COOK: Mhm.
R.: I need to think back. Being manipulative, not being truthful. I apologized for looking at her in her bra, even though I wasn’t, and that’s about it.
COOK: That’s not it.
R.: It is.
COOK: Come on, C. You know what you apologized for.
R.: Okay. Yes, I did apologize for trying to touch her, but it was on the shoulder when she needed a shoulder to cry on.
COOK: Mhm. What else?
R.: And touching her down there, but …
COOK: Touching her down there?
R.: Yeah.
COOK: And what else?
R.: That’s it.
COOK: Come on, man.
R.: I didn’t even force myself onto her. I didn’t. She took my hand and put it there. And then she said that I touched her, when I knew that she put my hand there. That’s all.
COOK: C., do you really want to be the guy that sits and the room and puts it on someone else?
R.: No.
COOK: Come on, man. Take ownership of your actions.
R.: I apologized for everything I did. I really did. I mean, there was a different time …
COOK: Pardon me?
R.: Sex (inaudible)
COOK: Mhm. What did you do?
R.: I …
COOK: Everyone makes mistakes, man.
(R. starts crying)
R.: I just don’t want … (inaudible, crying) I don’t want to go to jail.
COOK: No, I understand, man.
R.: I have my whole life ahead of me.
COOK: Mhm.
R.: I fucked up (inaudible)
18The exchange continued, and the officer told the accused that “this is about being a good person”, and “it’s the right thing to do”. Eventually the accused told the officer “I touched her down there, and then forcefully, force myself onto her. …”. The accused said he believed what the complainant said and took full ownership. When the officer said “you raped her, C. In your car. By the water, you raped her. Didn’t you?”, the accused replied “yeah”. When the officer then put to him that he had also raped her in his bedroom at his house, the accused said, “I didn’t do that”. He maintained that he had not committed this alleged sexual assault throughout the remainder of the interview.
19At the end of the interview, the officer told the accused “Takes a bigger person to come in here and say what they’ve done, than another person that just sits there and says I didn’t do anything wrong. I mean, you know you did”. The accused replied “yeah … yeah and I came out, and I came clean”.
The accused’s evidence on the voir dire
20The accused’s account of his arrest generally accords with that of the officers who testified on the voir dire. The facts I have outlined above are consistent with the accused’s account and I will not review his evidence on these points.
21The accused explained his medical issues. He has cerebral palsy and has been diagnosed with anxiety, depression and ADHD. He takes medication for the last three conditions, once a day, in the morning. On the day he was arrested, he had not taken one of his medications because he had to have the prescription refilled. He did not mention this to the police.
22The accused testified that he felt scared when the police picked him up and as his time in police custody progressed. His anxiety kicked in. He said he felt down and that he wanted to end it all, by which he meant he wanted to take his own life.
23The accused was asked why he told PC Cook that he had raped the complainant in his car. The accused said he was scared and let his anxiety get a hold of him. He wanted to get out of the interview as quickly as he could so he told the officer what he wanted to hear. He explained he was feeling very overwhelmed, and that this is how he feels without medication. He said that what he told the officer was not true.
24When he was asked why he didn’t also tell the officer what he wanted to hear about the alleged sexual assault in his bedroom, the accused said “none of that was actually done” and the events had been consensual.
25The accused said he “cracked under the pressure” when the officer said it takes a better man to come clean. He said his anxiety kicked in really badly.
26The accused agreed in cross-examination that he knew he did not have to speak with police and this was a choice he made after speaking with duty counsel. He said he understood it was up to him whether to tell his side of the story. He agreed that “all the while” that he was fearful and couldn’t think straight due to his lack of medication, he was aware he did not have to give an interview to the police. He agreed he never told the officer he couldn’t think straight or that he wanted to end it all, nor did he ever say that he wanted to stop the interview. He did not tell them he needed medical attention. The accused testified that during the interview he knew what he was saying, and that he had made a conscious choice to speak to the officers.
The positions of the parties
The Crown
27The Crown submits it has proven the voluntariness of the statement beyond a reasonable doubt. It says there was nothing oppressive about the circumstances of the statement, or any other circumstance that would suggest that statement was not voluntarily given. As for the operating mind requirement, the Crown submits it is a high bar to exclude a statement on the basis that the accused did not have an operating mind given the test in Whittle. The Crown argues that the evidence about the accused’s lack of medications and mental health issues does not meet the bar. The Crown submits that the accused’s own evidence shows he freely made a choice in giving his statement. He knew what he was saying, and that he could refuse to talk to police.
The defence
28The defence submits that the Crown has not proved the voluntariness of the statement beyond a reasonable doubt. Counsel submits that the court should find the discrepancies in the officers’ evidence, such as who drove to the scene and how many cars were used, troubling. The fact that the officers also did not make note of the accused’s clear disability prior to the interview should also concern the court.
29Looking at the totality of the circumstances, counsel for the defence argues that the court should be concerned. Counsel says that it is clear the accused is nervous at the beginning of the interview, and at one point he puts his head on the table. In all the circumstances, the defence says the Crown has not proved that the accused had an operating mind or that the statement was otherwise voluntarily given, since the accused felt that if he told the officer what he wanted to hear, the interview would end, and he would be free to go.
Analysis and conclusions
30I begin with some preliminary findings that contribute to the conclusion that the accused’s statement was voluntary.
31First, I find that the accused was properly cautioned and had the opportunity to speak with counsel before the interview started. The accused said he was satisfied with the advice he received. The accused was thus well equipped to decide whether to speak to police or not and to understand that anything he said could be used against him.
32Second, I find that there was nothing oppressive in the way the interview was conducted. The accused was interviewed in the late morning. There was no suggestion he was sleep deprived, or that he needed food. The interview was not unduly lengthy – it was under an hour long. To the extent that the accused may have been impacted by a missed dose of medication, I will address that later in these reasons. Certainly, the officers did nothing to produce oppressive circumstances that compelled an involuntary confession. I do not believe the accused’s evidence that he “cracked under pressure” when the officer told him it takes a “better man” to come clean. By the time the officer made this comment, the accused had already agreed he had raped the complainant. In any case, this comment by the officer came nowhere near to being oppressive. Encouraging the accused to do the right thing and take responsibility for his actions, similarly, was not oppressive. The officer was entitled to make these appeals to the accused’s conscience.
33Third, there were no threats, inducements or promises made to the accused at any time by the police. There was never anything approaching a quid pro quo or an implicit promise in exchange for giving the statement. The accused confirmed as much in his evidence on the voir dire.
34Fourth, there was no police trickery employed in this interview. The officer’s tactic in asking the accused about what the police might find on his phone was not based in trickery – this was a legitimate investigative tool, and the officer was entitled to refer to it in the interview.
35Fifth, I am satisfied that the Crown has led evidence about all meaningful contact with the accused. I find that nothing occurred off camera that undermined the voluntariness of the statement. The fact that the interview recording ended before the accused and PC Cook exited the interview room is of no matter, since the Crown does not seek to tender any evidence of statements made after that point. In any case, I am satisfied that the fact that the video recording ended before the accused and PC Cook left the room was an innocent error and that nothing of significance transpired between the police and the accused after that point.
36Sixth, the discrepancies in the officers’ evidence about how they arrived at the scene of the arrest and on other issues is not material to the issues. In any case, I am satisfied that the discrepancies are the product of the frailties of memory so long after the events. Nothing turns on these discrepancies. As for the officers’ failures to note anything about the accused’s disability, this too is immaterial to the voluntariness analysis. There is no dispute on all the evidence, including that of the accused, that he was sober, alert, and not exhibiting any distress. There is no evidence that his disability impacted his ability to choose whether to speak to police, or to understand that whatever he said might be used against him in criminal proceedings. Whatever signs of his disability may have been present during his interactions with the officers, they do not relate to a contentious issue that needs to be resolved in this application.
37With these preliminary findings, I turn to a consideration of whether the Crown has proved that the accused had an operating mind. As I have reviewed, and as recently confirmed in Tessier, all that is required to prove an operating mind is proof that the accused possessed the limited cognitive ability to understand what he was saying and to comprehend that the statement might be used as evidence in criminal proceedings. The Crown must show 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. A meaningful choice made by the accused need not be a good or wise choice. Further, the operating mind test does not require proof of actual knowledge that the accused did not have to say anything to the police and that anything said could be taken down in evidence. However, where it is established, proof of actual knowledge can weigh in favour of voluntariness.
38The accused’s evidence on the voir dire cannot be reconciled with his counsel’s argument that he lacked an operating mind. The accused testified that he understood he did not have to speak to police and that it was up to him whether to tell his side of the story. He agreed that speaking to police was a choice he made, and that he remained aware of this choice notwithstanding his missed dose of medication.
39On this point, it is important to note that the accused’s evidence was that he had missed a dose of medication he would normally take in the morning. The interview was conducted late morning and was over by noon. At most, this was a delay of hours in taking his medication. There is no medical evidence to support a conclusion that this brief delay impacted the accused’s cognitive functioning to the extent that he would not have been able to exercise a meaningful choice to speak to police, or to understand that whatever he said might be used in criminal proceedings against him. Nor is there anything apparent during the accused’s exchanges with the officers that would support that conclusion.
40Given the accused’s evidence on the voir dire, I have no doubt that the accused at all times understood why he was under arrest, and that he was under no obligation to speak to police. While I accept that the accused would have experienced some anxiety during the interview and that it was a stressful experience for someone who had never been arrested, this does not mean that he was incapable of exercising meaningful choices, as he effectively acknowledged in his testimony on the voir dire. Nor did the police do anything to contribute to the accused’s discomfort. That the accused felt “pressure” during the interview does not make his statement involuntary. Police are entitled to use moral entreaties in interviewing an accused person and the recording of the interview shows that this is all that happened here.
41It is also important to note that the accused did not agree with all of the suggestions put to him by the officer. The accused consistently maintained that he had not sexually assaulted the complainant in his bedroom, even after admitting to raping her in his car. This undermines the argument that the accused agreed he had raped the complainant because he thought this was what the officer wanted to hear.
42Given the totality of the evidence, including what is apparent in the video considered in conjunction with the accused’s testimony, I have no doubt that the accused understood that he was giving the statement to a police officer who could use it to his detriment in court. He had an operating mind. I also have no doubt that the accused gave the statement voluntarily, and that his will was not overborne by police tactics, oppressive circumstances, or any threats or inducements.
43For these reasons, the accused’s statement is admissible at trial.
Honourable Madam Justice Laurie Lacelle
Released in writing to the parties: January 22, 2025
Amended reasons released in writing to the parties: February 4, 2025
Released in writing for publication: December 10, 2025
CITATION: R. v. C.J.R., 2025 ONSC 437
COURT FILE NO.: CR-23-00000072-0000
DATE: 2025Jan22
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
C.J.R.
Respondent
REASONS FOR Decision
(Voluntariness voir dire)
Lacelle J.
Released in writing to the parties: January 22, 2025
Amended reasons released in writing to the parties: February 4, 2025
Released in writing for publication: December 10, 2025