CITATION: R. v. DiCecco, 2026 ONSC 2340

BARRIE COURT FILE NO.: CR-25-105-00

DATE: 20260420

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Applicant

– and –

GABRIEL DICECCO

Respondent

Raffi Dergalstanian and Linsay Weis, for the Applicant (Crown)

Sam Goldstein and Angelo Veneziano, for the Respondent (Gabriel DiCecco)

HEARD: April 7, 8, 9, 10, 13, 14, 2026.

PUBLICATION BAN PURSUANT TO S. 648 OF THE cRIMINAL cODE

RULING ON VOLUNTARINESS / pROBATIVE VALUE VS. PREJUDICAL EFFECT

Christie J.:

Overview

1Gabriel DiCecco is charged that:

a. On or about the 12th day of January in the year 2024, at the Town of New Tecumseth in the said Region, and elsewhere in the Province of Ontario, did commit first degree murder on the person WILLIAM SCHERNHAMMER, contrary to Section 235, subsection (1), of the Criminal Code of Canada; and

b. On or about the 12th day of January in the year 2024, at the Town of New Tecumseth in the said Region, and elsewhere in the Province of Ontario, did interfere with a dead body, to wit: WILLIAM SCHERNHAMMER, contrary to Section 182, subsection (b), of the Criminal Code of Canada.

2His trial is scheduled to take place before a jury for four weeks commencing May 4, 2026.

3At this trial, the Crown seeks to admit, as part of its case, five of the seven statements said to be made by Mr. DiCecco to the Nottawasaga OPP between January 13, 2024 and February 1, 2024. With respect to the remaining two statements, the Crown seeks to be permitted to use those for cross-examination in the event that Mr. DiCecco testifies at his trial. Mr. DiCecco challenges the voluntariness of some of those statements, putting the Crown to the burden of proving those statements voluntary beyond a reasonable doubt.

4In summary, Gabriel DiCecco, then 25 years old, provided the following seven statements to the police:

a. January 13, 2024 - 6 minutes and 41 seconds in length - start time: 12:48 PM.

b. January 14, 2024 - 1 hour and 1 minute in length - start time: 3:00 PM.

c. January 21, 2024 - 4 hours and 16 minutes in length - start time: 3:45 PM.

d. January 21, 2024 – 1 hour and 27 minutes in length – start time picks up right where the last interview left off – 8:08 pm

e. January 22, 2024 (Statement 1) - 3 hours and 16 minutes in length - start time: 12:30 AM.

f. January 22, 2024 (Statement 2) - 1 hour and 13 minutes in length - start time: 12:06 P.M.

g. February 1, 2024 - 6 hours and 18 minutes in length - start time: 5:55 PM.

5Mr. DiCecco concedes the voluntariness of the first two statements: January 13 and January 14, 2024. The Crown intends to introduce those statements at trial as part of its case. As for the next four statements, two on January 21, 2024 and two on January 22, 2024, Mr. DiCecco does challenge the voluntariness of these statements. In relation to those statements, the Crown seeks to introduce the two January 21, 2024 statements and the second January 22, 2024 statement as part of its case. As for the first January 22, 2024 statement, the Crown only seeks to use this for cross-examination if Mr. DiCecco chooses to testify. Finally, as for the last statement, February 1, 2024, the parties agree that parts of it can be used for cross-examination if Mr. DiCecco testifies, but otherwise the Crown dos not seek to introduce or use it at trial.

6Therefore, this court is being asked to rule on the voluntariness of the two statements taken on January 21, 2024 and the two statements taken on January 22, 2024.

7A voir dire was held over six days, during which several officers testified and the statements at issue, in addition to others, were played.

Factual Context

8It is alleged that, on January 11, 2024, Gabriel DiCecco and William Schernhammer spent some time together in Barrie, attended their mutual friend’s residence, Carter Reed, then went to Mr. Shernhammer’s residence at 309 Victoria Street Alliston – a residence that Mr. Schernhammer shared with his fiancé, Ashely Smith-Gibson. Mr. Schernhammer advised Ms. Smith-Gibson that he and the Respondent would be leaving the residence to purchase cigarettes from a gas station and that he would quickly return. Mr. Schernhammer never returned to the residence.

9On January 12, 2024, at 12:30 pm, Mrs. Schernhammer, the victim's mother, reported that Mr. Schernhammer had not returned home and that he was a missing person. She indicated that she had not heard from her son for 12-18 hours. Mrs. Schernhammer also advised that her son’s girlfriend, Ashley, had told her that she had not seen or spoken to him since 12:30 am.

10Based on information police received, PC Jacob Linzner called Mr. DiCecco asking if he knew where Mr. Schernhammer was and where they went to see if police could get more information. Mr. DiCecco stated that he dropped off Mr. Schernhammer at Albert Street and Ontario Street in Alliston and he did not know where he went from there. PC Linzner testified that this telephone conversation took place between 1:20 pm and 3:45 pm on January 12, 2024. He did not remember exactly how long it was. He stated that the purpose was to just gain more information to see if he knew where Mr. Schernhammer was as he was the last person to see him. Mr. DiCecco was not given rights to counsel or cautioned, as PC Linzner did not consider him an accused or suspect – just the last person who saw him. PC Linzner was not thinking of anything criminal happening to Mr. Schernhammer at that time. Mr. DiCecco was understood to be a friend that had picked him up and dropped him off.

11On January 13, 2024, the Respondent was interviewed by PC Jacob Linzner because he was the last person to have been with Mr. Schernhammer before he went missing. In that statement, Mr. DiCecco advised police that he left his house around 8:00 pm, picked up Mr. Schernhammer, went to Barrie around 9:20 pm, went to a store, continued driving around, went to 309 Victoria Street in New Tecumseth for about 10 minutes, went to a Pioneer gas station for cigarettes around 12:00 am, and drove some more. On Albert Street, going toward King, Mr. Schernhammer asked the Respondent to be let out of the Respondent's vehicle near Albert and Ontario Street in Alliston. The Respondent complied. Mr. Schernhammer got out and went left – south on Ontario. Mr. DiCecco said he went home. The statement takes place just inside the front entrance of Mr. DiCecco’s home in Orangeville, after Mr. DiCecco invited the uniformed officer inside. It is audio and video recorded. It is 6 minutes and 41 seconds in length, starting at 12:48 p.m. Police claim that Mr. DiCecco was merely a witness at this time. He was not under arrest for anything. He was not given rights to counsel or cautioned as he was not an accused, rather was just the last person to have seen him. There was no indication that Mr. DiCecco was under the influence of drugs or alcohol. He appeared to understand the conversation and answered appropriately. There were no promises or threats. Mr. DiCecco was not advised of the importance to tell the truth before or during this statement. The Crown seeks to have this statement admitted at trial as part of its case. Mr. DiCecco concedes the voluntariness of this statement.

12On January 14, 2024, Mr. DiCecco was asked to come into the Nottawasaga OPP detachment for a further statement. According to Sgt. Brian Ofrenchuk, he was asked to re-interview Mr. DiCecco in regard to the missing person investigation. In preparation, Sgt. Ofrenchuk reviewed the case file, watched the earlier video / audio interview, read available reports, and read notes from other interviews taken. Sgt. Ofrenchuk considered Mr. DiCecco a witness – the last person who saw Mr. Schernhammer. Sgt. Ofrenchuk called Mr. DiCecco around 2:00 pm, identified himself as a police officer with the Nottawasaga OPP, asking if he was available to attend the station to go over and clarify his previous statement and for him to ask some further questions to see if he could find out what happened to Mr. Schernhammer. According to Sgt. Ofrenchuk, he advised Mr. DiCecco that it was a voluntary statement. The conversation was a couple of minutes. Mr. DiCecco agreed.

13Mr. DiCecco attended the station. Sgt. Ofrenchuk, wearing a suit and tie, met Mr. DiCecco and escorted him inside. Sgt. Ofrenchuk again introduced himself with his name and that he was a police officer with the Nottawasaga OPP, believing he also showed his credentials. The interview was conducted by Sgt. Brian Ofrenchuk in a “soft” interview room at the station. The statement is audio and video recorded. It is 1 hour and 1 minute in length, starting at 3:00 p.m. Mr. DiCecco was not under arrest for anything. He was not given rights to counsel or cautioned, as Sgt. Ofrenchuk understood him to be a witness and he had no reason to believe he was a party to anything other than he was just the last person who saw Mr. Schernhammer and he might have information to help further the case. Sgt. Ofrenchuk did not believe that Mr. DiCecco was under the influence of drugs or alcohol. He presented normally and answered questions appropriately. There was nothing about his behaviour that caused any concerns. According to Sgt. Ofrenchuk, he did not make any promises to Mr. DiCecco and did not threaten him to pressure him into giving a statement. During the statement:

a. Mr. DiCecco was advised it was being audio and video recorded. (page 1-2)

b. Mr. DiCecco was advised that he was free to leave at any time. (page 2)

c. Mr. DiCecco confirmed that after his statement he would be free to leave which Sgt. Ofrenchuk confirmed. (page 2)

d. When Mr. DiCecco asked if he was going to be arrested, Sgt. Ofrenchuk stated that he had no reason to arrest him right now as he was just “somebody that dropped your friend off.” (page 3)

e. Early on in the statement, Mr. DiCecco stated, “Uh, do you think I can leave? I don’t feel comfortable talking” to which Sgt. Ofrenchuk asked why as he just wanted to find out some information so he could try to find his friend. The officer also confirmed that he could leave at any time but he just wanted to find out some more information. Mr. DiCecco then agrees that makes sense. (page 4-5)

f. A short time later, Mr. DiCecco asks if he can get a lawyer. Sgt. Ofrenchuk said he could talk to a lawyer if he wanted but he was not under investigation. Sgt. Ofrenchuk stated that “if there comes a point in time where it looks like you might be getting into trouble, I’m gonna stop the interview and I’ll tell you.” (page 9)

g. Mr. DiCecco stated that he did not feel comfortable. (page 10).

h. Mr. DiCecco stated that what he told the officer prior was “pretty much it”, that they were driving around, went to Barrie, went to a store, Mr. Schernhammer got out, they returned to Alliston, drove around some more, went to Mr. Schernhammer’s girlfriend’s house, went to the Pioneer for cigarettes, and then he dropped him off on the street going toward King. Mr. DiCecco stated that Mr. Schernhammer walked left down into the suburbs and he went home. (page 10-11)

i. Mr. Dicecco asked, “Do you think I can go now?” to which Sgt. Ofrenchuk asks if he can ask a couple more questions, to which Mr. DiCecco says, “Uh, no, I, I think that’s, that’s it. I don’t really have any much else to say.” (page 13)

j. At 31:11 into the video, Mr. DiCecco stands up as if to leave but sits down when the questions continue. (page 29)

k. Again, at 53:08, Mr. DiCecco asks “can I get a lawyer?” to which Sgt. Ofrenchuk responds that he can, even stating that he could talk to a free lawyer if he wanted to but that he was not in trouble or under arrest for anything right now. (page 45)

l. After the video ends, Sgt. Ofrenchuk claims that he spoke to Mr. DiCecco about some safety precautions he could take given that he had expressed some fear during the video.

Mr. DiCecco was not advised of the importance to tell the truth before or during this statement. Sgt. Ofrenchuk testified that when he left this interview he did not know what Mr. DiCecco was involved with. He was still the last person seen with Mr. Schernhammer. Sgt. Ofrenchuk confirmed that he found some things odd in his responses, as in he was questioning whether he was in trouble when he was not. According to Sgt. Ofrenchuk, Mr. DiCecco was not a suspect in his mind for anything at that time. The Crown seeks to have this statement admitted at trial as part of its case. Mr. DiCecco concedes the voluntariness of this statement.

14During these first few days of the investigation, police obtained video from the Pioneer Gas Station at Victoria and Tottenham showing Mr. Schernhammer purchasing cigarettes at 00:42 on January 12, 2024 and then getting back into a black SUV. Also, police obtained bank records of Mr. Schernhammer and his last transaction was at this Pioneer Gas Station.

15By January 17, 2024, CIB was involved. Sgt. Vance viewed the video from the Pioneer. She then did a Ministry of Transportation check and learned that Mr. DiCecco’s father had a black 2015 Hyundai Santa Fe.

16On January 18, 2024, the Respondent's mother attended the Nottawasaga OPP police station to make a report. Mrs. DiCecco reported to police that she observed several small holes on the inside of the front passenger door of her vehicle. Notably, this was the same vehicle that the Respondent used on January 11 and 12, 2024, when the Respondent was last with Mr. Schernhammer. At the request of Sgt. Vance, PC Cory Taverner took a statement from Mrs. DiCecco. She also provided consent for the police to search the motor vehicle. Mrs. DiCecco stated that she knew Mr. Schernhammer and her son were friends and she knew they were out the night of or around the time of his disappearance. She found damage to the interior passenger side door – small puncture holes. When she asked her son where these came from, he said he got angry and punched screwdriver holes in the door. When police searched the motor vehicle, they observed several small holes – 8 – 10 holes below the window – as described by Mrs. DiCecco, as well as a red substance around those holes. There were no exit holes, but on the exterior there was a protrusion pushing out. The holes were 8-9 mm in diameter, consistent with a shot gun pellet. The holes were separated but relatively close in proximately. PC Taverner and Sgt. Vance believed this was consistent with buckshot from a shot gun.

17At the time of these observations of the vehicle, PC Taverner explained that this was cause for concern. They could not rule out foul play involving Mr. Schernhammer. They had not found him. They were told it was unusual for him not to show up at his mother’s residence or where he was living. When PC Taverner saw the red substance, he was concerned it was potentially blood. This was the last vehicle Mr. Schernhammer was believed to be in. By this point, it had been confirmed with the Pioneer Gas station video that Mr. Schernhammer left the gas station, got into this vehicle, and drove away.

18According to Sgt. Vance, by January 19, 2024, as to Mr. DiCecco’s role in the investigation, she still thought he was a witness to something. They had conducted background checks on him, discovering that he had no previous significant interaction with police and no criminal record. As for Mr. Schernhammer, according to information coming in, he was being painted as a drug dealer with problems, who used Mr. DiCecco to drive him around. Sgt. Vance then stated that Mr. DiCecco was now more than a witness, rather a “person of interest for sure”. He was the last person to see Mr. Schernhammer alive. She believed that Mr. DiCecco had information that would help with the investigation. Sgt. Vance did not know if Mr. DiCecco was just in the wrong place at the wrong time when he was driving Mr. Schernhammer around.

19On January 20, 2024, Sgt. Vance attended the forensic unit where the search was being conducted on the Santa Fe. She saw forensic officers take the door apart and saw a total of seven shotgun pellets come from the door. She was also shown a blood like substance on the interior of the vehicle – on the passenger seat. There was also part of a spent casing found under the passenger seat. Sgt. Vance stated that this told them something happened in or around the vehicle and that a shot gun was involved. PC Taverner was contacted by Sgt. Vance and advised of what had been discovered. This led PC Taverner to conclude that there were gun shots inside the vehicle.

20Sgt. Vance stated that the team then formulated a plan to arrest Mr. DiCecco and search his residence. As to what led to this decision, she stated that the video did not match his initial statements to police. The car did not go where he said it went. There was a determination that he would be arrested for obstructing police and a search warrant would be executed to search for and seize evidence in relation to this investigation, including clothing, a firearm, and ammunition.

21On January 21, 2024, at 1:52 PM, the Respondent was arrested, without warning, at his home for obstruct justice. PC Taverner was wearing a suit with an OPP issued vest with police on the chest. He also had his badge, handcuffs, and his firearm. Other officers present were Det. Insp. Glassford, Officer Villani, Officer Yip, Sgt. Ofrenchuk, Forensic Identification Officer Altink, and Officer Neville. PC Taverner explained that he meant to arrest Mr. DiCecco for obstruct police but he made a mistake. As for his grounds, he explained that Mr. DiCecco had given a different route that they were said to have driven in his statement. By this point, police knew that the vehicle had gone down Parsons Road and Mr. DiCecco never said that. Mr. DiCecco said he dropped off Mr. Schernhammer at Albert and Ontario and then continued on Albert. The videos obtained showed that the vehicle did not slow or stop at Albert and Ontario and that it went to Parsons Road. Further, the vehicle was known to have gun shots inside with suspected blood in the vehicle. According to PC Taverner, this was all information withheld from police. Further, in his statement, Mr. DiCecco said they went to Barrie and there was no bank statement or any evidence of them attending in Barrie. There was also a call to a Cindy Smith that had not been mentioned. Mr. DiCecco had been interviewed twice, and a lot was withheld. According to PC Taverner, at this time, he could not rule out foul play and did not know if Mr. Schernhammer was murdered or not. In cross-examination, PC Taverner disagreed that the investigative team believed that Mr. DiCecco killed Mr. Schernhammer. PC Taverner stated that, at this time, all they knew was that Mr. DiCecco was the last person seen with him. He could not say that he murdered Mr. Schernhammer, only that he had misinformed police about stopping at Albert and Ontario and having gunshots inside his vehicle. PC Taverner could not say whether Mr. DiCecco pulled the trigger. PC Taverner repeated that he had grounds for the arrest on obstruct police. When it was suggested that murder was in his mind, he said that foul play was in his mind.

22At 1:53 pm, PC Taverner advised Mr. DiCecco of his rights to counsel which he read from a printed card. Mr. DiCecco said that he understood. When asked if he wished to call a lawyer now, he stated, “yeah”. When asked if he had a lawyer or wanted duty counsel, he said he did not have a lawyer and wanted “duty aid” which PC Taverner understood to be duty counsel. At 1:54 pm, PC Taverner also provided with Mr. DiCecco with a primary caution – in that he was not obliged to say anything, but whatever he did say may be given in evidence. Mr. DiCecco indicated that he understood. The arrest was audio taped.

23When he was arrested, Mr. DiCecco was placed in the rear of Officer Villani’s fully marked police cruiser. Mr. DiCecco was searched incident to arrest. Located was a vape pen, rosary, drivers licence, debit card, and an android cell phone in a black case.

24PC Taverner did not believe that Mr. DiCecco was under the influence of anything. He was not stumbling, slurring, and his eyes were not bloodshot. He did not smell of alcohol. Mr. DiCecco appeared to understand what he was saying to him and responded accordingly. PC Taverner had no concerns. During his interaction with Mr. DiCecco at the time of arrest for obstruct, PC Taverner did not promise him anything or threaten or pressure him in anyway.

25On this same date, a search warrant was executed at the Respondent's residence of 3 Drummond Street, Orangeville. Several legally owned firearms were said to be located in the Respondent’s room, including a 12-gauge shotgun. Even though PC Taverner disagreed with the suggestion that he believed that Mr. DiCecco had killed Mr. Schernhammer, he did agree that murder was the listed offence on the search warrant. PC Taverner did not agree that the obstruct police charge was nothing more than police trickery or a “red herring” and that in reality they suspected him of murder. Sgt. Vance explained that Det. Inspector Glassford, the major case manager, decided that the warrants would be written for the offence of murder, with no one named as an accused, and this carried on throughout other warrants.

26Officer Villani was driving the marked cruiser with PC Taverner in the passenger seat as they transported Mr. DiCecco back to the station. Nothing was said on the drive. They arrived back at the station at 2:23 pm. PC Taverner and Officer Villani went through the booking process with Mr. DiCecco and he was placed in a youth cell, for privacy reasons, at 2:53 pm. During the booking and lodging process, Mr. DiCecco did not say anything about the alleged offences. PC Taverner was satisfied that Mr. DiCecco knew what was going on during the booking and lodging process based on him answering questions and responding appropriately.

27PC Taverner called duty counsel for Mr. DiCecco at 3:06 pm. He then retrieved Mr. DiCecco and brought him to the privacy booth. PC Taverner recalled that the call was lost at some point and he reconnected with duty counsel for Mr. DiCecco. Mr. DiCecco was speaking to duty counsel between 3:06 and 3:12 pm.

28Between finishing with duty counsel and being interviewed by Sgt. Vance, Mr. DiCecco was placed back in his cell. During this time, PC Taverner stated that there would have been a guard near him, however, he himself had no dealings with Mr. DiCecco during that time. PC Taverner again confirmed that he made no promises to Mr. DiCecco in return for his statement and made no threats or inducements of any kind.

29Sgt. Vance did some preparation for the interview. She reviewed Mr. DiCecco’s first two statement and made some notes. She also gathered some evidence to present to him during the interview, such as photographs of the Santa Fe.

30At 3:24 pm on January 21, 2024, Sgt. Vance first met Mr. DiCecco. She went into the cell area, identified herself as a police officer, and asked if he wanted something to eat or drink. He asked for coffee and a bagel. She asked someone to go get those items. She brought Mr. DiCecco to the interview room.

31On the date of his arrest for obstruct justice / police, January 21, 2024, the Respondent was interviewed. The interview was conducted at the Nottawasaga OPP detachment by Sgt. Sarah Vance, who was wearing a suit, with no gun and no badge. It is audio and video recorded. It is 4 hours and 16 minutes in length, starting at 3:45 p.m. By this point, Sgt. Vance states that Mr. DiCecco was a “person of interest” “more than a witness” in relation to the disappearance of Mr. Schernhammer. She believed that, based on the evidence to that point, he had more knowledge than simply an outside observer. As for Mr. Schernhammer, Sgt. Vance believed that he was likely deceased. In cross-examination, she agreed that Mr. DiCecco was a suspect in a homicide. According to Sgt. Vance, Mr. DiCecco did not appear to be under the influence of drugs or alcohol, even though he stated that he had some Baileys in his coffee and had smoked a little weed pen. His speech was not slurred and he answered questions reasonably. He appeared to understand and his responses made sense. There was nothing concerning about his behaviour. Sgt. Vance stated that she made no promises to Mr. DiCecco and did not threaten him in any way.

32At 3 hours and 6 minutes into this interview, Sgt. Vance says that she can set up Mr. DiCecco and his family with witness protection, but that she cannot protect him if she does not know who she is protecting him from. At this point, Mr. DiCecco provides some information. Mr. DiCecco disclosed that they stopped to pee, a stranger emerged, pulled out a shotgun, shot Mr. Schernhammer, and walked off. Mr. Schernhammer was able to get back into the car which Mr. DiCecco assisted with. As he drove off the door closed. Mr. DiCecco further disclosed that, after checking for a pulse and realizing he was dead, he dumped Mr. Schernhammer's body in a ditch because he panicked and did not want others to think that he killed Mr. Schernhammer. Subsequent to making that disclosure, the Respondent offered to show the police the location of Mr. Schernhammer's body. Sgt. Vance identified in court all of the documents that she presented to Mr. DiCecco during the interview. The Crown wishes to introduce this statement as part of its case at trial. The defence challenges the voluntariness of this statement.

33Upon the conclusion of this police statement, members of the Nottawasaga OPP and the Respondent attended the location where the Respondent dumped Mr. Schernhammer's deceased body. The drive was on January 21, 2024 commencing at 8:08 pm. Prior to leaving, Mr. DiCecco was given the opportunity to use the washroom and was provided with a cigarette. PC Taverner was driving the vehicle – an unmarked Dodge Charger with no lights on top and no interior cage. Sgt. Vance sat in the back with Mr. DiCecco in the same suit she was wearing on the video and no firearm. Mr. DiCecco was handcuffed to the front. A couple of vehicles were following them which included Det. Insp Glassford, Det. Cst. Fenik, and Forensic Identification Constable Altink. According to Sgt. Vance, Mr. DiCecco was not under the influence of anything, pointing out that he had just been in the interview room with her for 4 hours, where he appeared to understand everything, and asked clarifying questions when he needed to. Sgt. Vance did not make any promises to Mr. DiCecco for taking this ride with them and did not threaten him to pressure him into providing this information. While having some difficulty finding the precise location, eventually, Mr. DiCecco was able to direct police to Mr. Schernhammer. Mr. DiCecco also attempted to direct the police to the area where he was said to have thrown Mr. Schernhammer’s phone, however, this was not successful.

34Mr. Schernhammer's body was located at 25 Sideroad between Adjala-Tosorontio, New Tecumseth Townline and Seventh Line. The Nottawasaga OPP recovered Mr. Schernhammer's body and turned it over to the Coroner.

35PC Taverner, Sgt. Vance and Mr. DiCecco returned from the drive back to the station at 9:21 pm. On the way, they stopped at a Tim Hortons to get Mr. DiCecco something to eat. PC Taverner did not recall Mr. DiCecco sleeping during the ride, however, Sgt. Vance stated that he was sleeping on the drive back to the station.

36Upon return to the station, Mr. DiCecco was placed back in the interview room at 9:21 pm. Sgt. Vance stated that this was a more comfortable place for him to eat. At some point later, Sgt. Vance noticed that he had his head on the table and was sleeping. At 9:47 pm, Sgt. Vance placed Mr. DiCecco in a cell to give him a better place to sleep.

37The observations of Mr. DiCecco between 9:45 pm and 12:36 am were introduced by way of an agreed statement of fact, will say, and the prisoner custody report. For example, at 9:50 pm, the guard provided Mr. DiCecco with a blanket and mattress for his cell. At 10:15 and 10:30 pm, Mr. DiCecco was seen resting on the bench. At 10:45 pm, he was seen sitting on the bench. At 11:10 pm, Mr. DiCecco was standing by the cell doors. At 11:23 pm, Mr. DiCecco was moved to a different cell. At that point, Mr. DiCecco made an unprompted utterance to Sgt. Vance stating that he did not want to be in this town anymore because he was being watched. Sgt. Vance did not recall why she was moving Mr. DiCecco to another cell.

38At 11:30 pm, the guard provided Mr. DiCecco with a cup of water and a second blanket. Between 11:45 pm and 12:20 am, Mr. DiCecco was seen pacing in his cell. At 12:20 am, Mr. DiCecco called out to the guard asking for the time. The guard provided the time, and Mr. DiCecco was then asking the guard, Ken Love, questions about bail court and how it worked which Mr. Love attempted to answer. During this discussion, Mr. Love told Mr. DiCecco to follow the instructions from his duty counsel.

39At 12:36 am, on January 22, 2024, Mr. DiCecco was brought back to the same interview room. Sgt. Vance noticed on a monitor that Mr. DiCecco was no longer sleeping but rather was standing in his cell pacing around. She made the decision to take another opportunity to speak with him and arrest him for indignity to a human body. At the time this interview commenced, Mr. DiCecco was not under the influence of anything. He had been in police custody for several hours at that time. He appeared to understand what was being said, his answers made sense, and he asked clarifying questions when he needed to. Sgt. Vance had no concerns about him. Sgt. Vance made no promises or threats leading into this statement. She was wearing the same suit as previously and had no firearm. At this time, Sgt. Vance said that Mr. DiCecco was definitely a suspect in the murder of Mr. Schernhammer given all of the evidence to date. PC Taverner was monitoring from time to time while Sgt. Vance interviewed but he had no interaction with Mr. DiCecco.

40The length of this interview is 3 hours and 16 minutes. It is audio and video recorded. The Crown wishes to be permitted to use this statement for cross-examination if Mr. DiCecco testifies at trial. The defence challenges the voluntariness of this statement.

41During this statement, Mr. DiCecco was advised that he was also being charged with indignity to a human body for having dumped Mr. Shernhammer in a ditch. At the end of the interview, around 3:43 am, Mr. DiCecco was advised that his clothes were going to be seized. He was then taken back to his cell.

42At 4:00 am and 4:20 am, Mr. DiCecco was seen resting on the bench. At 4:37 am and 5:00 am, he was seen sitting on the bench. Between 5:30 am and 7:45 am, Mr. DiCecco was seen lying down. From 8:00 am to 8:45 am, he was sitting on the bench. At 9:00 am, he was by the cell door. At 9:15 am to 11:15 am, he was lying down.

43At 11:19 am, duty counsel called the station to speak to Mr. DiCecco. PC Taverner facilitated that call. Mr. DiCecco was in a privacy booth. The call finished at 11:34 am. PC Taverner had no discussion with Mr. DiCecco when facilitating this discussion with duty counsel.

44Sgt. Vance arranged to speak to Mr. DiCecco again prior to his court appearance, the purpose being to elicit information about the investigation. Mr. DiCecco was not under the influence of anything as he had been in police custody. He appeared to understand what was being said. He was not promised anything in exchange for his statement and was not threatened to pressure him into providing a statement. As for his role at this point, Sgt. Vance explained that he had been arrested for obstruct police and indignity to a human body, and he was definitely a suspect in the homicide of Mr. Schernhammer. On January 22, 2024, starting at 12:06 pm., Mr. DiCecco was further interviewed by Sgt. Vance. The length of that interview is 1 hour and 13 minutes. It is audio and video recorded. The Crown wishes to introduce this statement as part of it case at trial The defence challenges the voluntariness of this statement.

45On January 25, 2024, an autopsy was performed on Mr. Schernhammer's body by Dr. Bernard Pawlowicz. Dr. Pawlowicz determined that Mr. Schernhammer's cause of death was multiple shotgun wounds. Notably, Dr. Pawlowicz determined that the travel path of the pellets that entered Mr. Schernhammer's body was from the left of Mr. Schernhammer's body to the right, and from the top traveling downwards.

46On January 31, 2024, Sgt. Ofrenchuk provided some information obtained from Mr. DiCecco’s cell phone to Sgt. Vance in preparation for an interview she would be conducting with Mr. DiCecco.

47On February 1, 2024, at 2:08 pm, Mr. DiCecco, who was being held at CNCC, was arrested for the first degree murder of Mr. Schernhammer. Sgt. Ofrenchuk and PC Taverner were present to effect the arrest. He was transported back to the detachment at 2:14 pm in a cruiser with PC Taverner driving and Sgt. Ofrenchuk as the passenger. Nothing was said in the vehicle. Back at the station, he was booked, lodged, and PC Taverner called a lawyer for him. There was no discussion about the alleged offences. Starting at 5:55 p.m., he was interviewed for 6 hours and 18 minutes. The Crown is no longer seeking a voluntariness ruling on this statement. Counsel have reached an agreement that a specific portion of this statement can be utilized for cross-examination if Mr. DiCecco testifies at trial.

Analysis

48The voluntariness rule was simply stated in R. v. Oickle, 2000 SCC 38, para 68, as follows:

…a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness…

49The Crown must establish beyond a reasonable doubt, in light of all of the circumstances, that the will of the accused has not been overborne by things such as inducements, oppressive circumstances, or the lack of an operating mind. In addition, there must not be police trickery that unfairly denies the accused his or her right to silence. The voluntariness rule applies to statements made to persons in authority, whether inculpatory or exculpatory, and whether they are offered to establish the truth of their contents, or simply intended to be used for cross-examination. Oickle makes it clear that the court must consider these factors alone and in combination, ultimately determining the effect any of these pressures may have had on the subject. In such determination, the court must keep in mind subjective considerations relating to the particular accused.

50The Crown must establish that the will of the accused has not been overborne. In Oickle, para 57, the court was clear that causation is a central consideration. The Court stated that an effort by the police to convince suspects to make admissions becomes improper only when the inducements, or other improper pressure, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. This requires an examination of the intensity of the pressure employed by police and of the ability of the accused to resist said pressure: See R. v. Spencer, 2007 SCC 11.

51In R. v. Ordonio, 2025 ONCA 135, the court stated:

[27] The common law rule seeks to protect against false confessions: voluntariness is the touchstone of the rule but this concept overlaps with, yet is not necessarily co-extensive with, reliability: Oickle, at paras. 47 and 69. “On the question of voluntariness … the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will”: Singh, at para. 36. The confessions rule also seeks to protect the rights of the person charged without unduly limiting society’s need to investigate and solve crime: Watt, §37.04. In sum, the rule strives for a balance between, on the one hand, the rights of the accused to remain silent and against self-incrimination and, on the other, the legitimate law enforcement objectives of the state relating to the investigation of crime: Tessier, at para. 69.

[28] The jurisprudence teaches that the rule should not be applied mechanically to the facts of a particular case. Instead, a judge must examine and evaluate all the circumstances surrounding the making of the statement. The approach is contextual. The evidence must satisfy the judge beyond a reasonable doubt of the voluntariness of the confession in order for it to be admissible: Sopinka, at §8.72; Watt, at §37.04; Singh, at para. 53.

[29] Tessier, at para. 68, contains a succinct summary of the factors usually considered in a voluntariness inquiry:

The law relating to the modern confessions rule in Canada is settled. A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. The Crown bears the persuasive or legal burden of proving voluntariness beyond a reasonable doubt. The inquiry is to be contextual and fact-specific, requiring a trial judge to weigh the relevant factors of the particular case. It involves consideration of “the making of threats or promises, oppression, the operating mind doctrine and police trickery”. These factors are not a checklist: ultimately, a 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. [Citations omitted; emphasis added.]

[30] Even though some circumstances may be conveniently collected under the four categories of inducements, oppression, operating mind, and police trickery, the existence of a particular circumstance in a case may not automatically render a statement admissible or inadmissible: Sopinka, at §§8.72-8.73. As put by Watt at §37.04: “Context controls”.

[34] To summarize, the confessions rule jurisprudence makes two key points. First, the rule seeks to protect against false confessions. Second, the rule directs courts to inquire into all the circumstances surrounding the making of a confession and red-flags, for a court’s consideration, a wide variety of circumstances traditionally grouped under the categories of inducements, oppression, operating mind, and police trickery.

52As for what is meant by an inducement, the Court in Oickle, para 57, stated that “[t]he most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise”. Depending on the circumstances, those quid pro quo inducements can serve to undermine voluntariness, whether the threats or promises relate to the accused or to someone closely connected to the accused (Oickle, para 51). Inducements do not automatically mean that the statement is involuntary. The question is whether the inducement(s) is strong enough, either alone or in combination with other factors, “to raise a reasonable doubt about whether the will of the subject has been overborne”. (Oickle, para 57) It also must be considered whether the inducement was intended as a strategy utilized to get an admission or was an “accurate appraisal of the circumstances”: see R. v. Teske, 2005 31847 (ON CA), [2005] O.J. No. 3759 (C.A.), para 75-7. A suggestion that it would be better to confess may or may not result in a finding of involuntariness, depending on whether the context was such that it would tend to be taken as a veiled threat (Oickle, para 54). Spiritual or moral inducements typically do not result in the statement being found involuntary (Oickle, para 56). In R. v. Wabason, 2018 ONCA 187, the Court of Appeal for Ontario reinforced that court’s need to consider the full context of the interrogation and statement.

53In relation to oppressive circumstances, again the question will be whether the oppressive circumstances, either alone or in conjunction with inducements or other circumstances, raise a reasonable doubt about whether the will of the accused was overborne. Such oppressive circumstances can include deprivation of food, clothing, water, sleep, or medical attention, denying access to counsel, excessively aggressive, intimidating questioning for a prolonged time. (Oickle, para 60). Confronting the accused with “non-existent” evidence can also contribute to an oppressive interrogation. (Oickle, para 61) As for police questioning, in R. v. Singh, 2007 SCC 48, the court stated:

[28] What the common law recognizes is the individual’s right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident. Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime.

[46] Hebert therefore set out the parameters of the s. 7 Charter right to silence to achieve this balance. Some of the limits set out by the Court were responsive to the particular facts in Hebert and, consequently, are only relevant to the situation where a detainee is interrogated by an undercover officer. They need not be repeated here. Of relevance in this case are the first two limits. I reproduce the relevant excerpts here:

First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.

Second, it applies only after detention. Undercover operations prior to detention do not raise the same considerations. The jurisprudence relating to the right to silence has never extended protection against police tricks to the pre-detention period. Nor does the Charter extend the right to counsel to pre-detention investigations. The two circumstances are quite different. In an undercover operation prior to detention, the individual from whom information is sought is not in the control of the state. There is no need to protect him from the greater power of the state. After detention, the situation is quite different; the state takes control and assumes the responsibility of ensuring that the detainee’s rights are respected. [Emphasis added; p. 184.]

[47] Mr. Singh takes particular issue with the leeway afforded to the police in questioning the detainee, even after he has retained counsel and has asserted his choice to remain silent. He submits that courts have erroneously interpreted the underlined passage above as permitting the police to ignore a detainee’s expressed wish to remain silent and to use “legitimate means of persuasion”. I say two things in response to this argument. First, the use of legitimate means of persuasion is indeed permitted under the present rule — it was expressly endorsed by this Court in Hebert. This approach is part of the critical balance that must be maintained between individual and societal interests. Second, the law as it stands does not permit the police to ignore the detainee’s freedom to choose whether to speak or not, as contended. Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities. As we shall see, the trial judge in this case was very much alive to the risk that the statement may be involuntary when a police officer engages in such conduct.

When determining whether the circumstances of the Respondent’s statement was oppressive, the Court must look at the entirety of the interaction to determine its cumulative effect. Ordonio, paras 102-103. The mere fact that the Reid technique, or elements of, were used during the interrogation does not necessarily render the statement involuntary. The court must look at all of the circumstances, together with their cumulative effect, to determine whether the Crown has discharged its burden. Ordonio, para 91. The ultimate question is whether the oppressive circumstances, such as continued police questioning, overbears the free will of the person to speak or not to speak.

54In R. v. Merrit, 2023 ONCA 3, the court considered the length of the statement in the context of oppression – in that case it was 15 hours. However, at paras 46-48, the court also lists other useful factors to consider when trying to determine if oppression is present, such as fatigue, whether the person remained engaged and in full control, the relative size of the accused to the interviewer, demonstrations of assertiveness, demonstrations of confidence, demonstration of preparation for the interview by the interviewee, readiness to debate, emotional state, and general demeanour.

55As for the statement being the product of an operating mind, again, the focus is on whether the accused has truly made a choice to make a statement. In Oickle, the court stressed that “the operating mind should not be understood as a discrete inquiry completely divorced from the rest of the confession rule.” It is “just one application of the general rule that involuntary confessions are inadmissible”. (para 63). The operating mind doctrine only requires that the person know what they are saying and its potential use to their detriment. In R. v. Tessier, 2022 SCC 35, the court stated that the person must be capable of making a meaningful choice to speak to the police, a choice that is not improperly influenced by state action. Meaningful refers to the overall voluntariness of the statement, rather than a minimum level of actual subjective knowledge that the person did not have to say anything to the police and that anything said could be taken down in evidence.

56The type of police trickery that will render statements involuntary is said to be something that while “neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community.” (Oickle, para 67). This inquiry is not dependent on a finding that the will of the accused has been overborne. It is separate from considerations relating to inducements, oppression and the exploitation of an inoperative mind because its primary objective is to maintain the integrity of the criminal justice system. (Oickle, para 65) In excluding confessions on this basis, courts are to be wary not to unduly limit police techniques.

57After considering all of the circumstances, independently of the voluntariness rules, the court still maintains a residual discretion to exclude otherwise voluntary statements by the accused, where its probative value is outweighed by the risks of prejudice it presents: R. v. Sodhi (2003), 2003 52179 (ON CA), 179 C.C.C. (3d) 60 (Ont. C.A.). The court may also edit statements to remove prejudicial information.

58In R. v. Frimpong, 2013 ONCA, the court discussed what this balancing of probative value versus prejudicial effect means in more detail. The Court stated:

[18] A trial judge can exclude evidence offered by the Crown where the prejudicial effect of the evidence outweighs its probative value. Evidence is prejudicial in the relevant sense if it threatens the fairness of the trial. Evidence may be prejudicial if it cannot be adequately tested and challenged through cross-examination and the other means available in the adversarial process. Evidence may also be prejudicial if there is a real risk that the jury will misuse the evidence (e.g. propensity evidence), or be unable to properly assess the evidence regardless of the trial judge’s instructions. This latter form of prejudice must, however, overcome the strong presumption that jurors can and do follow the trial judge’s instructions.

In R. v. Corbière, 2016 ONSC 6818, para 4, the court explained that the prejudice in this balancing is not simply something that weighs against the accused, but rather does so unfairly. The court elaborated on some of the unfairness that may occur when prejudicial effect outweighs probative value, such as exaggerating the probative value that the evidence deserves, disregarding or confusing the real issue in the case, or using the evidence for an improper purpose. See also: R. v. Schneider, 2022 SCC 34, paras 59-62, where the court explained that “probative value relates to the degree of relevance to trial issues and the strength of inference that can be drawn from evidence” whereas “prejudicial effect relates to the likelihood that a jury will misuse the evidence”.

59In R. v. Sidhu, 2013 ONCA 719, para 23, the Court of Appeal made it clear that an application to have a statement edited involves an exercise in judicial discretion, weighing and balancing probative value and prejudicial effect. Edits must not change the meaning of the statement in a material manner, and the court must remember that the jury is expected to follow instructions on the use of the statement. See also: R. v. Lu, 2021 ONSC 4920, para 39

Application to this Case

60The Defence argues that oppression and inducements should be the main focus for this court on this voluntariness voir dire, pointing out the persistence of Sgt. Vance throughout these interviews, what they refer to as the “unrelenting nature of the questioning”. Further, the Defence argues that the nature and character of the person being interviewed must be considered, pointing out that Mr. DiCecco has very little experience with police, no criminal record, and has never been the subject of police interrogation. The Defence submits that the inexperienced Mr. DiCecco was interrogated at length by a skilled investigator, who continued to press and challenge his denials, and this imbalance is significant.

61It is the view of this court that the circumstances surrounding these statements demonstrate beyond all reasonable doubt that Mr. DiCecco’s will was not overborne. There was no police trickery. Frankly, the officers were forthright. There was no suggestion that they lied about the evidence they had. Sgt. Vance told Mr. DiCecco that she had nothing to hide from him. Mr. DiCecco had a fully operating mind in that he was cognizant, lucid, responsive to questions, inquisitive – clearly appreciating what was happening and the consequences of speaking. As for any inducement or oppression, this court is of the view that there was no inducement or oppression that leaves this court with a reasonable doubt about whether the will of the accused was overborne. The circumstances clearly demonstrate that Mr. DiCecco’s will was never overborne. He was assertive. This court agrees with the Defence that Mr. DiCecco was not in control over his movement, as he was under arrest and at a police station. However, this is not the question on an inquiry into voluntariness, which considers the control over what he said and when he said it. It is the view of this court that, despite being in the physical custody and control of the police, Mr. DiCecco demonstrated control and conscious choice about what he wanted to answer, when he wanted to answer, and how he wanted to answer.

62The suggestion by the Defence that this questioning was unrelenting is simply not an accurate description of what occurred. There is a great deal of downtime throughout the statements. There are certainly moments of silence. There are various shifts in tone and style by Sgt. Vance. While certainly Sgt. Vance did not relent at the first “I don’t know” or “I don’t want to answer these questions”, there was some ebb and flow to the interviews, not to mention, significant breaks between the interviews, with the exception of the drive.

63While the first two statements, January 13 and 14, are conceded by the Defence to be voluntary, this is part of the context that cannot be ignored. In relation to the January 13 statement, the voluntary nature of this statement was communicated to Mr. DiCecco. PC Lizner attended Mr. DiCecco’s residence and Mr. DiCecco willingly allowed the officer in to take the statement. PC Lizner was not aggressive in his tone or approach. It should be noted that Mr. DiCecco willingly showed his phone to the officer without request. In relation to the January 14 statement, Sgt. Ofrenchuk conducted the interview in a soft interview room used most often for witnesses and complainants due to its comfort. Sgt. Ofrenchuk was not aggressive, but rather friendly in his interaction with Mr. DiCecco. When Mr. DiCecco asked if he could leave or questioned whether he was in trouble, Sgt. Ofrenchuk explained that he could leave at any time, he was not in any trouble, and that he could contact a lawyer if he wished. Sgt. Ofrenchuk explained that if his status changed during the interview he would stop the interview and tell him.

64On January 21, 2024, leading up to the interview with Sgt. Vance, it was PC Taverner who first had contact with Mr. DiCecco at his residence. There was seemingly nothing about the dealings between Mr. DiCecco and PC Taverner that created an oppressive atmosphere. Police were polite and dealt with Mr. DiCecco appropriately. He was brought back to the detachment and lodged.

65This is the context leading up to the interviews which this court is being asked to rule on.

Statement of January 21, 2024 – 4 hours and 16 minutes in length – start time: 3:45 pm

66On the date of his arrest for obstruct justice / police, January 21, 2024, the Respondent was interviewed. The interview was conducted at the Nottawasaga OPP detachment by Sgt. Sarah Vance, who was wearing a suit, with no gun and no badge. It is audio and video recorded. It is 4 hours and 16 minutes in length, starting at 3:45 p.m. By this point, Sgt. Vance states that Mr. DiCecco was a “person of interest” “more than a witness” in relation to the disappearance of Mr. Schernhammer. She believed that, based on the evidence to that point, he had more knowledge than simply an outside observer. As for Mr. Schernhammer, Sgt. Vance believed that he was likely deceased. In cross-examination, she agreed that Mr. DiCecco was a suspect in a homicide. According to Sgt. Vance, Mr. DiCecco did not appear to be under the influence of drugs or alcohol, even though he stated that he had some Baileys in his coffee and had smoked a little weed pen. His speech was not slurred and he answered questions reasonably. He appeared to understand and his responses made sense. There was nothing concerning about his behaviour. Sgt. Vance stated that she made no promises to Mr. DiCecco and did not threaten him in anyway.

67At 3 hours and 6 minutes into this interview, Sgt. Vance says that she can set up Mr. DiCecco and his family with witness protection, but that she cannot protect him if she does not know who she is protecting him from. At this point, Mr. DiCecco provides some information. Mr. DiCecco disclosed that they stopped to pee, a stranger emerged, pulled out a shotgun, shot Mr. Schernhammer, and walked off. Mr. Schernhammer was able to get back into the car which Mr. DiCecco assisted with. As he drove off, the door closed. Mr. DiCecco further disclosed that, after checking for a pulse and realizing he was dead, he dumped Mr. Schernhammer's body in a ditch because he panicked and did not want others to think that he killed Mr. Schernhammer. Subsequent to making that disclosure, the Respondent offered to show the police the location of Mr. Schernhammer's body. Sgt. Vance identified in court all of the documents that she presented to Mr. DiCecco during the interview. The Crown wishes to introduce this statement as part of its case at trial. The defence challenges the voluntariness of this statement.

68The following things are of note in the interview itself:

a. Certainly, Sgt. Vance is smaller than Mr. DiCecco.

b. Mr. DiCecco had beverages, coffee and water, and food, a bagel, available to him during the interview.

c. Mr. DiCecco was advised that the discussion was being audio and video recorded.

d. At the outset of the interview, after having spoken to duty counsel, it was clarified with Mr. DiCecco that the arresting officer had made a mistake in arresting him for obstruct justice as it should have been obstruct police. Mr. DiCecco was then given rights to counsel, primary and secondary caution in relation to the charge of obstruct police.

e. He can be seen eating his bagel which had been provided to him by police, as arranged by Staff Sgt. Vance.

f. Mr. DiCecco confirmed that he had not been threatened by any police officer.

g. Mr. DiCecco confirmed that he had not been promised anything in exchange for a statement.

h. When inducements were being explained to Mr. DiCecco, he stated that a police officer “grazed my ass” during the search. This is an example of assertiveness, in that he was talking about something another officer did that he felt was inappropriate.

i. Mr. DiCecco was advised that he was under arrest for obstruct police because he lied to police and they could prove it.

j. Mr. DiCecco was also advised that while he was not under arrest for murder, Sgt. Vance was going to caution him for murder. She stated that she did not reasonably believe that he killed Mr. Schernhammer but she did not know what his involvement was, what he knew, or what he did because he did not tell the truth. She then advised Mr. DiCecco that they are investigating a murder, she advised him of his rights to counsel and he was given a primary and secondary caution in relation to the murder of William Schernhammer. Mr. DiCecco expressed that he wished to speak to duty counsel again, but said he had a question. He then asked if Sgt. Vance could show him the videotapes that she was saying did not “match up”. This is another example of Mr. DiCecco being assertive in that he is challenging her suggestions and asking to see proof – evidence.

k. Sgt. Vance left the room to arrange the call to duty counsel and Mr. DiCecco finished his bagel and drank some coffee.

l. At 4:02 pm, PC Taverner contacted duty counsel and escorted him to and from the privacy booth. He was returned back to the interview room at 4:18 pm. There were no words exchanged between police and Mr. DiCecco while attending to or returning from this second call with duty counsel.

m. Upon return to the interview room, Mr. DiCecco stated that he was satisfied with his discussion with duty counsel and understood what they told him.

n. When Sgt. Vance advised that she knew his mother’s name, Mr. DiCecco questioned how she knew that. When Sgt. Vance stated she met his mother, he asked how she had met his mother. Again, this shows assertiveness on the part of Mr. DiCecco. When he has a question he wants answered, he asks it.

o. Sgt. Vance expressed concern about Mr. DiCecco’s wellbeing. She confirmed he was feeling healthy – not suicidal or violent. She confirmed he was not injured.

p. He confirmed that he was not feeling drunk or high.

q. Mr. DiCecco again asks to listen to what he had said previously. He said, “…I just want to listen to what I said, and I don’t want to keep adding to the – I just want to hear what are my lies.” This is another example of Mr. DiCecco asserting himself and making a request of Sgt. Vance to see or hear the evidence to prepare for this interview.

r. Mr. DiCecco corrects Sgt. Vance when she states that William had told him in the past that people wanted to kill him. He said, “No, I said that about me. People, people that he knows want to kill me.” In other words, he corrects Sgt. Vance in her suggestion and shows a willingness to debate with her.

s. Unsolicited, he talked about “those people” “dealing drugs” and that they thought he would “snitch”. He talked about having a foot on his neck, twisting his neck and that he almost died. He tells Sgt. Vance that “there’s something wrong with these people”.

t. Mr. DiCecco debates with Sgt. Vance the ability of the police to do anything about these people.

u. At 48 minutes into the interview, Mr. DiCecco is emotional and describes feeling scared for himself and his family.

v. Around 50 minutes into the interview, Sgt. Vance suggests to Mr. DiCecco that he knows more than what he is saying. Mr. DiCecco says, “Um, I don’t want to continue with what I have to say. That’s all I have to say.” Sgt. Vance then says that, when he spoke to the police the second time, he advised the officer that William might know people that might kill him. Mr. DiCecco refers to a “terrorist” that might want to kill him as reported to him by William Schernhammer. He then describes driving to a house and being introduced to a person that he was told was going to kill him and his family. Mr. DiCecco said he did not want to talk but then offered up this information. Mr. DiCecco told Sgt. Vance that William Schernhammer’s friends had threatened him and put guns in his face. This is an indication that Mr. DiCecco was in full control of what he told and when he wanted to say it.

w. Just over one hour into the statement, Sgt. Vance talks about having financial records for Mr. Schernhammer and that those do not show any purchases in Barrie. Mr. DiCecco interrupts Sgt. Vance in the course of her saying this, offering the explanation that Mr. Schernhammer had cash. In other words, he is being assertive in the conversation. He is correcting Sgt. Vance and willingly debating the evidence and what it is demonstrative of or not.

x. Around 1 hour and 13 minutes into the interview, Sgt. Vance asked Mr. DiCecco if he killed William to which he gives an unequivocal “No”. Clearly, he has the ability to answer questions as he sees fit and to deny that which he wishes to deny.

y. Around 1 hour and 19 minutes into the interview, Mr. DiCecco says, “I don’t want to talk anymore about this” to which Sgt. Vance says that they are going to keep talking about this. According to the Defence, Sgt. Vance is sending a clear message to Mr. DiCecco that she is not going to stop asking questions until she gets what she wants. This court accepts that Sgt. Vance was making it clear that she was going to keep asking questions for some period of time and she did. She was going to be persistent. However, persistence does not equate to a lack of voluntariness. It is a consideration of all of the circumstances, including the persistence, to determine whether the persistence alone or in combination with other factors led to the persons will being overborne.

z. Just a couple of minutes later, at about 1 hour and 22 minutes into the interview, after a couple of “I don’t know” responses, Mr. DiCecco is asked whether there was anyone else in the car with them, to which he says “no” and then confirms it was just the two of them. After this response, Mr. DiCecco shifts back to “I don’t know” for a few responses and then when asked if he set Will up to be murdered, he stated, “No. I already said that he tried to do that to me a lot of times, so…” This is clear evidence that Mr. DiCecco was in control of what he said and when he said it. He shifts easily from “I don’t know” to flat out denying or clarifying things. This is demonstrative of control and free will.

aa. At about 1 hour and 35 minutes into the interview, Mr. DiCecco demonstrates a willingness to debate with Sgt. Vance, stating, “you guys wouldn’t care if I was scared.” This shows assertiveness and confidence on the part of Mr. DiCecco, in that he is willing to challenge what Sgt. Vance is stating.

bb. At about 1 hour and 40 minutes into the interview, Sgt. Vance states that Mr. Schernhammer was not going to meet some girl with brown hair at Albert and Ontario. Mr. DiCecco immediately disputes this comment and states, “Yeah, he actually was”, affirming and confirming what he said earlier. He was defensive in his response, seemingly wanting to stand by his narrative. This is demonstrative of someone in full control of what they are saying and when they are saying it.

cc. At 1 hour and 41 minutes into the interview, Sgt. Vance tells Mr. DiCecco, “Good people are honest. Good people tell police what they know.”

dd. Then at 1 hour and 46 minutes into the interview, Sgt. Vance tells Mr. DiCecco that he had just nodded in agreement to having seen what happened. Immediately, Mr. DiCecco says, “No, I didn’t” and then debates the point with Sgt. Vance. In other words, Mr. DiCecco is not simply accepting what Sgt. Vance is saying. He is controlling his responses. He is pushing back against this suggestion.

ee. At 1 hour and 47 minutes into the interview, Mr. DiCecco flatly disagrees with Sgt. Vance that the police can protect him if he needs protection. He states, “It’s not gonna happen”. Obviously, he disagrees about the efficacy of this proposal.

ff. At around 1 hour and 52 minutes, Sgt. Vance becomes a bit more aggressive in her tone and demeanour after Mr. DiCecco had repeatedly stated “I don’t know” to many questions. Even in the course of this exchange, when Sgt. Vance states, “He (William) deserves for us to figure out what happened”, Mr. DiCecco responds, “Getting a terrorist to say, ‘I’m gonna kill your whole family’, I guess. I guess he didn’t….Yeah. I guess, I guess that’s a really good friend.” Clearly Mr. DiCecco was willing to assert himself and argue about Mr. Schernhammer’s character and what he felt he deserved. Mr. DiCecco shifted from “I don’t know” to making this statement. Mr. DiCecco is in control of what he wants to say and when he wants to say it. After these comments, he then returns to “I don’t know” answers.

gg. At 1 hour and 57 minutes into the interview, Sgt. Vance suggests to Mr. DiCecco that his father has shotguns. Mr. DiCecco questions how she knows this, in other words inquiring into the investigation.

hh. At about 1 hour and 59 minutes into the interview, Sgt. Vance suggests that we cannot go around shooting people just because they are not perfect people. Mr. DiCecco immediately responds in an animated manner, “Perfect people? We’ve got a terrorist to say ‘I’m gonna kill your whole family’. What are you saying? What do you mean that he’s not a – just an asshole? What?” Clearly Mr. DiCecco is in control of what he is saying, being assertive and confident in his opinion on Mr. Schernhammer and his associates.

ii. Just after the 2 hour mark of the interview, Mr. DiCecco confirms that Tyler Smith twisted his neck around, by saying, “He did, actually” and when Sgt. Vance says she believes him, he challenges Sgt. Vance directly saying, “You don’t believe me.” A few moments later, he questioned Sgt. Vance about how she could prove that Tyler Smith twisted his neck because she never saw it happen. Again, he is pushing back, being assertive, in full control of his will and answers.

jj. At around 2 hours and 3 minutes into the interview, Mr. DiCecco offers the information that Mr. Schernhammer had previously raped him. There is a spirited discussion about whether the police could have done something and how he felt about the manner in which it was handled. He was assertive and confident in his answers. He was critical of how the police handled things.

kk. At around 2 hours and 9 minutes into the interview, Sgt. Vance asks, “What do you think your mom is gonna think about this?” and “…do you not think your mom would say, ‘Tell the police what happened?’” and “Do you not think your mom would say ‘A good person tells the police what happened?’” and “I think she’d want you to do what’s right here too…” and “The right thing to do is to tell me what happened, and I think that’s what your mom would want” and “I think she’d tell you to be honest, and stop lying.” Mr. DiCecco asks if his mom can come and he can talk to her. Sgt. Vance said no but that she could see about Mr. DiCecco calling her. He then said, “no, never mind”. In the midst of this exchange, Mr. DiCecco asked about why there was a number “22” depicted in one of the photos that Sgt. Vance brought in, which she explains was an exhibit number. Just after that, at around 2 hours and 13 minutes, Sgt. Vance said “Tell me who did this and I’ll see about getting your mom here” to which Mr. DiCecco responded, “No, it’s okay, I don’t even want to talk to her anymore. I don’t want her being here.” Sgt. Vance agreed in cross-examination that she should not have said this to Mr. DiCecco and agreed this was an inducement, although she stated that she did not think anything came out of it. Nothing does come of it. As previously stated, it is not simply whether there was an inducement, but whether the inducement is strong enough, either alone or in combination with other factors, to raise a reasonable doubt about whether the will of the subject has been overborne.

ll. At around 2 hours and 26 minutes into the interview, again, Sgt. Vance becomes a bit more aggressive in her tone. Most of Mr. DiCecco’s answers are “I don’t know”. Sgt. Vance makes it very clear that she does not want to hear “I don’t know” anymore. Even in the course of this more aggressive monologue, when Sgt. Vance says that everyone told them that William is lazy and would not walk if he could get a ride, Mr. DiCecco disagrees with Sgt. Vance and says, “I’ve seen him do it though before. I’ve dropped him off at like a street before.” In other words, even in the midst of more aggressive questioning and a long monologue from Sgt. Vance, Mr. DiCecco controls when he wants to assert himself and what he wants to say. He is ensuring that Sgt. Vance knows he is not lying about this point.

mm. At around 2 hours and 41 minutes, Sgt. Vance suggests to Mr. DiCecco that he had already said yes to the fact that he took Mr. Schernhammer somewhere and he ended up getting shot, to which he said, “No, I didn’t”. Again, disagreeing with Sgt. Vance and making his position known.

nn. Mr. DiCecco continues to say “I don’t know” in response to many questions.

oo. He continues to sip at his coffee from time to time.

pp. At about 2 hours and 45 minutes into the interview, after hearing many “I don’t know” answers, Sgt. Vance states, “Where did you go? Where did you stop that car? We know you stopped that car between here (points to map) and here (points to map) you stopped that car. Where did you stop it? This isn’t gonna stop, we’re not stopping until we figure this out. We are not stopping our investigation until we figure this out. There’s a whole team of people working on this, non-stop.” Clearly, Mr. DiCecco would have known that the interview would stop at some point and there is no evidence to suggest otherwise. Sgt. Vance was clear in her explanation that it was the investigation that was not going to stop – which was likely absolutely true. In any event, Mr. DiCecco does not offer information in response to this, rather what follows is about 20 minutes with some “I don’t know”, some denial, some agreement, and some explanation or clarification – demonstrating control and free will.

qq. At about the 3 hour mark, Sgt. Vance asks if he had a gun pointed at him that night to which he states, “Well, I had guns pointed at me a lot of times.” In other words, he offered other information, attempting to control the flow of the conversation.

rr. At about 3 hours and 1 minute into the interview, Sgt. Vance and Mr. DiCecco have a discussion about Banting and how many years he went there. When Sgt. Vance suggests it may be all 4-5 years, he says, “No…two-and-a-half.”

ss. At 3 hours and 6 minutes, Sgt. Vance says that she can set up Mr. DiCecco and his family with witness protection, but that she cannot protect him if she does not know who she is protecting him from. There is no reason to believe that this was not true. Sgt. Vance had expressed concern for him and his family throughout which appeared genuine. Sgt. Vance had ceased any aggressive questioning and was being respectful toward Mr. DiCecco. This was not stated as a quid pro quo – protection for a statement – rather, the offer of protection was because of the reported safety concerns. Further, this topic had already been discussed a few times in the interview, however, seemingly, Mr. DiCecco did not believe the police could protect him. At this point, Mr. DiCecco provides some information. Mr. DiCecco disclosed that they stopped to pee, a stranger emerged pulled out a shotgun and shot Mr. Schernhammer, then walked off. Mr. Schernhammer was able to get back into the car which Mr. DiCecco assisted with. As he drove off, the door closed. Mr. DiCecco further disclosed that, after checking for a pulse and realizing he was dead, he dumped Mr. Schernhammer's body in a ditch because he panicked and did not want others to think that he killed Mr. Schernhammer. Subsequent to making that disclosure, the Respondent offered to show the police the location of Mr. Schernhammer's body. In fact, he stands up and says, “Okay, let’s go”.

tt. It should be noted that in the 20 to 30 minutes leading up to giving this information, there is no indication that Mr. DiCecco’s will is overborne; in fact, quite the opposite as outlined above. For example, he had confirmed that he did not shoot William Schernhammer. He confirmed he did not bring a gun. He corrected Sgt. Vance as to the height of the girl Mr. Schernhammer was to meet. He corrected Sgt. Vance as to the colour of the girl’s hair. He confirmed he was driving the car. He confirmed he did not get rid of Mr. Schernhammer’s body. In other words, leading up to the information provided at 3 hours and 6 minutes, Mr. DiCecco was in control of the information he provided. It was never simply blanket denials or blanket acceptance. Viewing the entirety of the circumstances, this court does not believe that Mr. DiCecco provided information at that time because of some offer of protection, especially since he never seemed to accept that the police would or could protect him. That was his attitude throughout.

uu. At around 3 hours and 16 minutes into the statement, Sgt. Vance leaves the room. Mr. DiCecco appears to just sit quietly, stretching, looking at his tattoo, drinking some coffee. He does not appear to be sleeping.

vv. At 3 hours and 33 minutes, Sgt. Vance returns with some maps and Mr. DiCecco provides some further information about location of where things occurred. When discussing where he had dumped Mr. Schernhammer’s body, he provided some specifics of where he did that and how he did that, even stating that he carefully put his body on the side. He stated that he did this because he was scared and did not know what else to do. After explaining this, he states, “you can, you can believe me or don’t believe me, but that’s the truth…so….” This demonstrates confidence in Mr. DiCecco, suggesting that he does not care if the police believe him or not. Again, he is in control of his own narrative.

ww. At 3 hours and 48 minutes, Mr. DiCecco states, “I think I need to go to the mental hospital after this…”

xx. At about 3 hours and 51 minutes into the interview, Mr. DiCecco asks if he is going to jail for this and a discussion followed wherein he expressed fear of those who might also be in jail. This is a clear demonstration of Mr. DiCecco understanding the consequences of saying what he is saying to a police officer.

yy. Just after stating that he threw Mr. Schernhammer’s phone away, he stated, “So, none of this, none of this sounds good for me at all, but either way, if I didn’t do it or whatever, if I didn’t do it.” Mr. DiCecco obviously fully understands what he is saying and how it might sound to someone – demonstrating a true appreciation of the circumstances.

zz. Just before leaving the room at 4 hours into the interview, Mr. DiCecco confirms that he is not hungry. Sgt. Vance tells him he can bring his water with him on the drive, but he declines. Sgt. Vance again leaves the room attempting to arrange a car for them to take a drive to locate Mr. Schernhammer. During the 15 minutes she is out of the room, Mr. DiCecco is sitting, looking around, stretching, looking at his tattoo, takes the bandage off the tattoo, stands up and walks a bit, looks at some of the items on the table, and finishes his coffee.

aaa. When Sgt. Vance returns, she again offers for Mr. DiCecco to bring his water on the ride which again he declines. She advises Mr. DiCecco that the ride will be recorded and he says “Okay”.

bbb. Sgt. Vance identified in court all of the documents that she presented to Mr. DiCecco during the interview.

ccc. While it is true that Sgt. Vance never directly offers Mr. DiCecco a bathroom break, this court is certain that Mr. DiCecco would have been provided with such an opportunity at any time he asked and that Mr. DiCecco knew that. He did ask to use the washroom at the conclusion of the interview, before taking the drive with police, and it was immediately facilitated.

69This court is satisfied that the Crown has established, beyond a reasonable doubt, in light of all of the circumstances, that the will of the accused has not been overborne. Further, there was absolutely no police trickery. While this court views the comment of Sgt. Vance “Tell me who did this and I’ll see about getting your mom here” as a form of inducement, this has no impact on Mr. DiCecco whatsoever. He immediately says that he does not want his mom there and does not want to talk to her. Mr. DiCecco continues to repeatedly respond to the questions of Sgt. Vance with “I don’t know” for more than another half an hour before he gives any substantive information. While there is no question that Mr. DiCecco was in the physical control of the police, having been arrested, he demonstrates to be in full control of what he was saying and when he was saying it. Throughout, he was confident, assertive, and inquisitive. His will was not overborne. The statement is voluntary.

Probative Value versus Prejudicial Effect

70Given that the Crown wishes to lead this statement in its entirety as part of its case in chief, there has been a consideration of the probative value of the statement versus its prejudicial effect. In the event that this statement was deemed voluntary, the Defence has outlined several sections that should be redacted. This court has considered each in turn:

a. Page 12, l. 24 to page 13, l. 16 where Sgt. Vance is discussing the obstruct charge. The Defence points out that Mr. DiCecco is not charged with an obstruct charge before this jury and the jury hearing about another charge has no probative value and a great deal of prejudicial effect, amounting to nothing more than other discreditable conduct. Other discreditable conduct is presumptively inadmissible because it inherently relies on propensity or bad character reasoning resulting in moral prejudice to the accused: See R. v. Handy, 2002 SCC 56. The admission of other discreditable conduct is exceptional, and it may only be admissible where it is relevant, material, and the Crown establishes, on the balance of probabilities that the probative value outweighs the prejudicial effect: See R. v. Z.W.C., 2021 ONCA 116, para 97. This court agrees with the Crown that the fact that Mr. DiCecco is charged with obstruct police is essential narrative for the jury to hear, as without this information, the jury will be left wondering why Mr. DiCecco is in police custody and may have the impression that he is charged with something more serious than he was at that point. The omission of this information would actually prejudice Mr. DiCecco. By this point in the interview, the arrest for obstruct police had already been mentioned twice (pages 4 and 6), which the Defence has not asked to be edited – however, perhaps this was an oversight. It should be noted that the Defence suggested in its reply that the audio of the arrest conducted by PC Taverner should be edited for reference to the charge, however, it is the understanding of this court that the audio of the arrest is not being played. Having said that, the Crown intends to call PC Taverner as a witness to talk about how these events unfolded. Having carefully considered this issue, this court has concluded that it is relevant and material for the jury to hear the charge that Mr. DiCecco is in custody for so that they are not left speculating that it is something worse than it is, resulting in serious prejudice to Mr. DiCecco. Having said that, the editing requested by the Defence is necessary. As stated, by this point, the jury will already know what the arrest was for. While this court agrees that the Crown is entitled to argue that Mr. DiCecco was not forthright with the police because he had something to hide, this is still available to the Crown to argue without having the officer provide her opinions on the issue. The portion redacted will be from page 12, l. 24 to p. 13, 1. 17. Further, given that the jury will hear that Mr. DiCecco was charged with obstruct police, it may also be appropriate for the jury to be told what happened to that charge. This court would be willing to hear further argument on this point. Certainly, this will require a midtrial instruction.

b. Page 39 to page 45, l. 10 – The Defence describes this portion as a monologue by Sgt. Vance about how and why she protects people, unnecessarily attempting to bolster her credibility, and is not relevant to any issue the jury will be asked to decide. While this court is satisfied that some editing is required, it will not be to the extent requested. There is nothing wrong with the officer talking about protecting people. It will not likely come to the surprise of the jury that this is one of the roles of police officers. No prejudice will flow from this. The jury will be instructed that they are to assess the evidence of police officers in the same way as other witnesses. Further, this portion of the interview discusses Mr. DiCecco’s fears, which goes to the relevant issues in the trial such as Mr. DiCecco’s motive, his fear of retribution, and a possible reason to withhold information. However, there are portions of monologue in this section, in which Sgt. Vance is simply providing her beliefs without any, or very little, response from Mr. DiCecco. This is of no value to the trier of fact and is prejudicial to Mr. DiCecco. The portions redacted will be from page 39, l. 6 starting with “DSV: You’re scared….” to page 40, l. 14 ending with “…right?” and further redacting from p. 42, l. 22 starting with “DSV: Yeah, see…” to p. 44, l. 22 ending with “Yes, you do. Yes you do.”

c. Page 47 to page 63 – The Defence submits that this is primarily a monologue by Sgt. Vance about the importance to the family of finding Mr. Schernhammer which may inflame sympathy in the jury as opposed to deciding the case simply on the evidence. There is also repeated reference to Mr. DiCecco being scared, which is said to have no probative value. The Defence concedes that fear as a motive is probative, but the repeated nature of these motives becomes prejudicial. It is the view of this court that the jury is entitled to hear certain portions of this section as it provides them with an opportunity to assess Mr. DiCecco’s credibility on critical points, such as whether he turned on Parsons Road, whether anyone else was in the vehicle, whether Mr. Schernhammer was meeting a girl, and what caused the holes in the car door. Having said that, there are portions which should be redacted as being more prejudicial than probative, such as theories by Sgt. Vance about buying coke in Barrie, having Mr. DiCecco express an opinion on the believability of his mother, monologues that are not responded to, and what good people do and do not do. The portions redacted will be page 48, l. 17 which starts with “DSV: You played video games…” to the end of page 48; page 54, l. 14 starting with “DSV: There’s holes in her door…” to page 55, l. 15 which ends with “GD: She wouldn’t lie to you.”; page 56, l. 5 after “Of course I do. Of course I do” to page 57, l. 12 which ends with “sure”; page 58, l. 22, starting with “I’m sorry…” to page 59, l. 22 ending with “murder”; page 62, l. 19 starting with “We can’t let people…” to page 63, l. 3 ending with “I don’t know”.

d. Page 66 – There is reference to comments Mr. Schernhammer is said to have made, getting a terrorist to say that he will kill Mr. DiCecco’s whole family. The Defence submits that this cannot be tested, if Mr. DiCecco does not testify, and is therefore prejudicial. The Defence acknowledges that this could be used for cross-examination. This court does not agree that this is more prejudicial than probative. This goes directly to Mr. DiCecco’s animus towards Mr. Schernhammer and a possible motive, which is relevant, and the jury is entitled to assess. This will not be redacted.

e. Page 88, l. 20 to page 102 – The Defence submits that this is simply police theory being put to Mr. DiCecco and he is not agreeing or disagreeing. The Defence does acknowledge that there are certain denials at page 99 but for the most part characterizes this is a monologue calling him a liar. This court does not entirely agree with this characterization. In this portion, Sgt. Vance discusses central issues with Mr. DiCecco, including where Mr. Schernhammer was said to be dropped off, the gender of the shooter, the female that Mr. Schernhammer was meeting up with, whether he or Mr. Schernhammer brought a gun. There is significant probative value in this evidence, in that the jury are entitled to assess Mr. DiCecco’s credibility and reliability on these critical points. Having said that, there are areas that should be redacted, as the prejudice outweighs any probative value, such as where Sgt. Vance provides monologue mostly unanswered. The portions redacted will be page 90, l. 2 starting with the first “DSV” and ends at page 93, l. 7 with “I’m over it.”

f. Page 105 to 112 – The Defence argues that the suggestion that he did not take the person to a hospital is a suggestion that he is a bad person. The Defence claims this is other disreputable conduct that should not be permitted. The Defence acknowledges that this may be open for cross-examination but not to be introduced as part of the statement. This court does not agree. The proximity of the hospital and his reason for not going to the hospital is directly relevant to the count of interfering with a dead body. Further, in this portion, Mr. DiCecco provides responses to questions that are critical to the issues in this trial, such as whether he discarded Mr. Schernhammer’s body, his fears, his familiarity with the area. This is essential for the jury to hear and assess as they see fit. There will be no redaction of these portions.

g. Page 132, l. 15 – There is a reference to needing to go to a mental hospital. This is not relevant. This court agrees that the comment, “I think I need to go to the mental hospital after this, so anyway” should be redacted.

h. Page 134, l. 10 to page 138, l. 15 – The defence argues that the discussion about the obstruct charge, protective custody in jail, not having money for a lawyer, and about going to court is irrelevant to any issue the jury will need to decide. For the most part, this court agrees, however, the jury is entitled to hear about Mr. DiCecco’s fear about going to jail as it may relate to motive. The portions to be redacted are page 134, l. 20 starting with “GD: So am I going to jail for that?” and ending at page 135, l. 1 with “I’m scared”; page 135, l. 13 starting with “GD: What’s protective custody?” to page 138, l. 17 ending with “GD: Okay.”

Statement of January 21, 2024 – 1 hour and 27 minutes in length – start time picks up right where the last interview left off – 8:08 pm – ride along with police

71All parties agree that this “ride along” statement is merely an extension of the interview with Sgt. Vance. This court would agree. Upon the conclusion of the statement noted above with Sgt. Vance, members of the Nottawasaga OPP and the Respondent attended the location where the Respondent left Mr. Schernhammer's deceased body. The drive was on January 21, 2024 commencing at 8:08 pm, in fact the audio picks up at the end of the video statement. Prior to leaving, Mr. DiCecco was given the opportunity to use the washroom and was provided with a cigarette. PC Taverner was driving the vehicle – an unmarked Dodge Charger with no lights on top and no interior cage. Sgt. Vance sat in the back with Mr. DiCecco in the same suit she was wearing on the video and no firearm. Mr. DiCecco was handcuffed to the front. A couple of vehicles were following them which included Det. Insp Glassford, Det. Cst. Fenik, and Forensic Identification Constable Altink. According to Sgt. Vance, Mr. DiCecco was not under the influence of anything, pointing out that he had just been in the interview room with her for 4 hours, where he appeared to understand everything, and asked clarifying questions when he needed to. Sgt. Vance did not make any promises to Mr. DiCecco for taking this ride with them and did not threaten him to pressure him into providing this information. While having some difficulty finding the precise location, eventually, Mr. DiCecco was able to direct police to Mr. Schernhammer. Mr. DiCecco also attempted to direct the police to the area where he was said to have thrown Mr. Schernhammer’s phone, however, this was not successful.

72The audio of the drive reveals the following:

a. Mr. DiCecco was offered to take a water on the ride.

b. He was advised that the ride would be audio recorded.

c. He asked to use the washroom before leaving and was given the opportunity to do so.

d. He was provided with his long sleeve shirt, jacket, toque, and his shoes to wear on the ride.

e. Sgt. Vance offers Mr. DiCecco a cigarette before they leave, which he accepts.

f. He was cuffed to the front during the drive with no leg shackles. Sgt. Vance locked the cuffs so they would not tighten.

g. Sgt. Vance helped him with his seatbelt.

h. Mr. DiCecco confirmed he was comfortable in the car.

i. Mr. DiCecco was asked if he was hungry and he said “not really”.

j. Sgt. Vance asked him if he was warm enough to which he said he was.

k. Mr. DiCecco directed the trip, as in where to go. He was having some trouble getting to the spot where he said he left Mr. Schernhammer but eventually was able to direct them to the spot – 39 minutes and 45 seconds into the ride.

l. Mr. DiCecco attempts to direct them to the area where he threw out Mr. Schernhammer’s phone. He indicated a couple of places might be the spot but it had snowed and police were unable to find it – in fact Sgt. Vance did not believe it was ever found.

m. Sgt. Vance stated they would get Mr. DiCecco some dinner – a bagel or even something different like pizza. He opts for a bagel with cream cheese, so they stop at Tim Hortons on the way back.

n. Sgt. Vance asked if he needed anything to put on his new tattoo, which he declined.

o. According to Sgt. Vance, Mr. DiCecco slept on the way back to the station, specifically she observed him sleeping on the way to Tim Hortons and after leaving Tim Hortons on the way to the detachment. She said he seemed relaxed.

p. Mr. DiCecco asked for another cigarette when they got back to the station and Sgt. Vance agreed to give him her last one.

q. Sgt. Vance asked PC Taverner to assist Mr. DiCecco with his pants because they had slipped down during the drive, and she did not think it was appropriate for her to help him.

r. Back at the station, Mr. DiCecco is placed back in the interview room with his bagel. Sgt. Vance also offered him a choice of apple or orange juice when they returned to the station. Sgt. Vance agreed that he had not eaten since the bagel during his first statement with her.

s. He was able to keep his long sleeve shirt on.

73This court is satisfied that the Crown has established, beyond a reasonable doubt, in light of all of the circumstances, that the will of the accused has not been overborne. Further, there was absolutely no police trickery. The primary argument of the Defence as to the voluntariness of this portion is that the earlier statement with Sgt. Vance is involuntary and this is simply an extension of that statement. Having found the earlier interview voluntary, this argument carries no weight. Further, Mr. DiCecco was treated with the utmost respect during this ride along – a ride along that he suggested. Officers sought to ensure his comfort throughout. Mr. DiCecco was most certainly in control of what he said and when he said it during this time. Again, he was the one who suggested showing the police where he left Mr. Schernhammer and he controlled every turn and stop that they made during the ride. He was even permitted to have a nap on the way back to the station. Mr. DiCecco’s demeanour throughout was assertive and he demonstrated to be an active and willing participant in this process. This statement is voluntary.

Probative Value versus Prejudicial Effect

74Given that the Crown wishes to lead this statement in its entirety as part of its case in chief, there has been a consideration of the probative value of the statement versus its prejudicial effect. No arguments of prejudice were raised by the Defence in relation to this statement and this court sees none. This audio statement is admissible in its entirety.

Statement of January 22, 2024 – 3 hours and 16 minutes in length – start time: 12:30 A.M.

75The lead up context to this statement must be considered. After having returned from the car ride, Mr. DiCecco was placed in an interview room alone to eat his bagel and drink his juice. Noticing that he had his head on the table, appearing to be sleeping, Sgt. Vance had Mr. DiCecco placed in a cell for more comfort. In his cell, he was provided with a blanket and a mattress – again for his comfort. He was left to rest until Sgt. Vance became aware he was standing and pacing in his cell. Sgt. Vance stated that she only decided to re-commence an interview with Mr. DiCecco at this time because he was observed to be awake in his cell which is confirmed by the prisoner report records. This shows that Sgt. Vance respected Mr. DiCecco and cared about his need to rest. Having seen that Mr. DiCecco was awake and pacing, she made the decision to take another opportunity to speak with him and arrest him for indignity to a human body.

76At 12:36 am, on January 22, 2024, Mr. DiCecco was brought back to the same interview room. At the time this interview commenced, Mr. DiCecco was not under the influence of anything. He had been in police custody for several hours at that time. He appeared to understand what was being said, his answers made sense, and he asked clarifying questions when he needed to. Sgt. Vance had no concerns about him. Sgt. Vance made no promises or threats leading into this statement. She was wearing the same suit as previously and had no firearm. At this time, Sgt. Vance said that Mr. DiCecco was definitely a suspect in the murder of Mr. Schernhammer given all of the evidence to date. PC Taverner was monitoring from time to time while Sgt. Vance interviewed but he had no interaction with Mr. DiCecco. The length of this interview is 3 hours and 16 minutes. It is audio and video recorded. The Crown wishes to be permitted to use this statement for cross-examination if Mr. DiCecco testifies at trial. The Defence challenges the voluntariness of this statement.

77The following things are of note on the video:

a. A coffee is provided to Mr. DiCecco at the outset of the interview.

b. At the outset of the interview, Sgt. Vance stated to Mr. DiCecco that when she walked to the cell, she heard the guard talking to him. According to Mr. DiCecco, the guard said to him, “Do whatever they tell you “.

c. Sgt. Vance reminded Mr. DiCecco of her earlier caution, that he was not to be influenced by anyone to do anything, that he was to disregard anything the guard told him. Mr. DiCecco said he understood. Mr. DiCecco confirmed that the guard did not say anything to influence him. Again, Sgt. Vance stated that she did not want someone else to influence him, rather he must make his own decisions. He said he understood. It must be noted that Mr. DiCecco downplayed this entire thing with the guard and said he did not want to get the guard in trouble as he did not do anything. This shows Mr. DiCecco in control.

d. Sgt. Vance reminded Mr. DiCecco of the earlier arrest and caution in regards to obstruct and murder which she said still applied. She reminded him that he was being audio and video recorded.

e. Mr. DiCecco stated that he “can’t feel anything right now”… “like I’m frozen”.

f. Sgt. Vance then advised Mr. DiCecco that he was also being charged with indignity to a human body for having dumped Mr. Schernhammer in a ditch. Mr. DiCecco asked how much time he would get for that and asked Sgt. Vance to search it for him. At one point he asked, “you think you can search it up?” This certainly shows confidence and assertiveness by asking Sgt. Vance to do research on information that he wants to know.

g. Mr. DiCecco said that he was in fear for his life if placed in prison.

h. Mr. DiCecco asked, “Do I have to speak to the judge tomorrow?” This is another example of him asking clarifying questions when he wanted information. He is certainly alert and lucid.

i. Sgt. Vance came back to the charge of indignity to a human body. She advised Mr. DiCecco of his rights to counsel and cautioned him about making any statements.

j. Mr. DiCecco asked if she was going to keep asking him questions, which at least in part appears to inform his decision to speak to duty counsel. This is indicative of Mr. DiCecco preparing himself for the interview to come.

k. Mr. DiCecco asked to speak to duty counsel again which was arranged for him. He drank some coffee that was provided to him while this was being arranged. In fact, he was in the interview room alone for about 24 minutes, drinking his coffee, sitting quietly. He was not sleeping. He was then taken out of the interview room for over 30 minutes at which time he spoke to duty counsel.

l. When he returned, Mr. DiCecco was given another fresh coffee.

m. Multiple times during this interview, Mr. DiCecco says that he does not want to answer any more questions and wants to sleep.

n. Sgt. Vance thanks Mr. DiCecco for his assistance in locating Mr. Schernhammer’s body.

o. In relation to owning guns and hunting, Mr. DiCecco is picking and choosing what he wants to answer. When asked if he owned a shotgun, he said, “legally”. He confirmed that he is a hunter of small game. He explained that he does not hunt locally, rather he goes up north every once in a while. He confirmed that his father and brother also hunt. Then when Sgt. Vance summarizes that he grew up doing that as a family, he says, “Yeah. Uh, I don’t want to answer these questions.” Sgt. Vance acknowledges that and tells him he does not have to. Sgt. Vance then asks if his mom goes also and he said no. The conversation continues with some responses and sometimes saying he does not want to answer these questions. However, during this time, he disagrees with Sgt. Vance about the need to register long guns. Clearly, Mr. DiCecco is choosing what to answer and what not to answer and is able to easily switch back and forth as he sees fit.

p. During a monologue by Sgt. Vance, a couple of times, Mr. DiCecco appears to be about to say something and then decides not to and says, “I don’t want to answer these questions”. This is clearly a demonstration of control over what he is saying and when he is saying it.

q. When Sgt. Vance is discussing Mr. Schernhammer's transgressions against him, he provides an answer, but inserts in the middle of the answer that he does not wish to answer “these questions”.

r. Mr. DiCecco offers that there was a “cop at the school” that said “there’s something wrong with this town”. Sgt. Vance and Mr. DiCecco figure out, together, who this police officer was.

s. Mr. DiCecco clarifies that “not every person I’m saying in Alliston’s bad…deserves to go to jail or die.”

t. When Sgt. Vance is again discussing Mr. Schernhammer's transgressions against him, Mr. DiCecco responds with "that's funny". Sgt. Vance and Mr. DiCecco exchange comments, and ultimately, he states that his only desires are to live his life, be gainfully employed, and have a girlfriend. While Mr. DiCecco does state that he wants to go to sleep and is tired a couple of times, again, this is an example of Mr. DiCecco being in full control of the information he is providing and demonstrating assertiveness with Sgt. Vance.

u. Sgt. Vance and Mr. DiCecco have a discussion about his level of education which Mr. DiCecco explains that he has to go to “adult school”. He then explained that he had their laptop and invited the police to return the laptop. Clearly, Mr. DiCecco is comfortable with Sgt. Vance and continues to assert himself and make requests.

v. After some theories being advanced by Sgt. Vance, Mr. DiCecco states, “Well, I have had someone say to me that if you don’t try to do anything to him we will kill you over time. I’m not saying I did it, I’m just saying that.” When asked who said that, Mr. DiCecco said that it was Tyler Smith and then said he did not want to answer anymore questions. When Sgt. Vance attempted to clarify that Tyler Smith wanted him to kill William, he clarified, “I never said I killed anybody, I’m just saying that’s what was said to me.” He absolutely denies killing William Schernhammer. Mr. DiCecco is able to carefully convey what he wishes to say to Sgt. Vance to make his point and advance his narrative.

w. Sgt. Vance suggests that he had told her that Tyler Smith told him to kill Mr. Schernhammer, to which he responds, “Yeah, I’m not saying I didn’t, I did it though. He just said that….” Mr. DiCecco is in full control of his narrative, maintaining his innocence.

x. At the end of the interview, Mr. DiCecco is advised that his clothes are going to be seized. By this time, it was around 3:43 am.

78While certainly it is late when this statement is taking place, and Mr. DiCecco says he is tired and wants to go to sleep, there is absolutely no suggestion that fatigue played any factor in Mr. DiCecco’s decision to speak to police. This court does not view this as one statement from three o’clock in the afternoon on January 21 to three o’clock in the morning on January 22. He was given the opportunity to sleep from about 9:30 pm to 12:30 am, during which some of the time he was resting. However, he was then seen standing up in his cell. There was a clear and significant break in the interviews. However, even if this was one 12 hour statement, there is nothing to suggest that fatigue played any factor in Mr. DiCecco’s decision to speak to police. Mr. DiCecco was alert throughout the interview. He remained engaged during the discussion. He was in full control of his faculties and abilities. While certainly the length and timing of the interview must be considered, these are only a couple of factors to consider in the entire context, as stated in R. v. Merritt, 2023 ONCA 3. It is worth noting that one might expect Mr. DiCecco would be at his most vulnerable given the time of day, the earlier statement and police ride along, yet, he provides the least information in this statement.

79This court is satisfied that the Crown has established, beyond a reasonable doubt, in light of all of the circumstances, that the will of the accused was not overborne. It cannot be ignored that there were a lot of breaks and silences throughout the interview. This was not simply continuous aggressive questioning. For example, Mr. DiCecco was alone in the room for about 25 minutes while duty counsel was being arranged. He was then out of the room for over 30 minutes during which time he spoke to duty counsel. He demonstrated full control over what he was saying and when he was saying it, picking and choosing what he wanted to answer and not answer. He was engaged and assertive throughout as he had been in the earlier statements. Further, there was absolutely no police trickery. This statement is voluntary.

Probative Value versus Prejudicial Effect

80Having said that, this court would be concerned about the prejudice flowing from parts of this statement if it were introduced as part of the Crown’s case at trial. For example, Sgt. Vance offers her opinions, based on investigators’ years of experience, that Mr. DiCecco’s narrative is not credible (pages 21-23; 28-29; 37-39; 42-43). Having said that, this court is advised that there is no intention to introduce this statement as part of the Crown’s case, rather it will simply be used for cross-examination. Therefore, any prejudice is removed.

Statement of January 22, 2024 – 1 hour and 13 minutes in length –start time: 12:06 P.M.

81Sgt. Vance arranged to speak to Mr. DiCecco again prior to his court appearance, the purpose being to elicit information about the investigation. Mr. DiCecco was not under the influence of anything as he had been in police custody. He appeared to understand what was being said. He was not promised anything in exchange for his statement and was not threatened to pressure him into providing a statement. As for his role at this point, Sgt. Vance explained that he had been arrested for obstruct police and indignity to a human body, and he was definitely a suspect in the homicide of Mr. Schernhammer. On January 22, 2024, starting at 12:06 pm., Mr. DiCecco was further interviewed by Sgt. Vance. The length of that interview is 1 hour and 13 minutes. It is audio and video recorded. The Crown wishes to introduce this statement as part of its case at trial. The defence challenges the voluntariness of this statement.

82The following things are of note during the video statement:

a. Sgt. Vance agreed in cross-examination that she did not read formal rights to counsel, primary, or secondary caution, but she did tell Mr. DiCecco that nothing had changed from the previous night, in that it was still being audio and video recorded, he was still under caution, he was still under arrest, he still had his rights. Mr. DiCecco asks some questions about the court appearance which Sgt. Vance answers. She then again says, “…everything is the same as last night, still the caution, you still have your rights, you’re still being recorded”, to which Mr. DiCecco says, “yeah”.

b. At the outset of the police interview, Mr. DiCecco asked Sgt. Vance whether he is going to prison and further questions about the criminal process. Sgt. Vance answered the questions and attempted to explain the process. Mr. DiCecco is assertively, confidently, and freely asking questions. He certainly understands his jeopardy.

c. Sgt. Vance brought a coffee and muffin into the interview room for Mr. DiCecco.

d. She confirmed with Mr. DiCecco that he got a little bit of sleep.

e. Sgt. Vance thanked Mr. DiCecco for assisting in finding William Schernhammer and thereby helping make the investigation “go quicker”.

f. They discuss travel and Mr. DiCecco states an awareness that he may never be able to leave the country.

g. Mr. DiCecco offers unprompted that he is not feeling good mentally for the past year – feeling dead inside. There is a discussion about Mr. DiCecco getting some professional help and Sgt. Vance expressing real concern for Mr. DiCecco’s wellbeing.

h. Sgt. Vance tells Mr. DiCecco that she wants to give him the opportunity to give more information about people that he is afraid will hurt him and his family so that this can be investigated - “if you want to talk to me about that”. Mr. DiCecco says, “Sure” and then gives some names of people who have been threatening him, what the threats have been, and how the threats have been conveyed. Mr. DiCecco states that Mr. Schernhammer had threatened him in the past and various criminal activity that he suggested Mr. Schernhammer was involved in. Mr. DiCecco very openly talks about all of these things.

i. When Sgt. Vance shifts the conversation to ask if anyone asked him to hide Will’s body, Mr. DiCecco states, “I don’t want to answer these questions” demonstrating a choice of what he wants to talk about and when he wants to talk about it.

j. Sgt. Vance stated that she was “looking for you to help us get over that [finish] line”…reminding him that he was sitting in police custody alone for what happened to William Schernhammer. When Sgt. Vance suggests that she does not believe he is the only person involved in this but that he was taking the fall for it, he said, “I told you the person that, that did it to him were masked up and dressed in black. I, I don’t know, I don’t know who it was.” Mr. DiCecco offers that William Schernhammer was “texting all sorts of people”.

k. Mr. DiCecco offers up the information that he told his mom that there was a blue car following them for like four blocks. A rather spirited discussion ensues about this. Again, Mr. DiCecco is controlling what he wants to say – controlling the narrative.

l. In the course of Sgt. Vance offering a theory to Mr. DiCecco that this was not a stranger that did this and that the canine investigation did not find anything, he stated, “Well, someone just walking through a field, it’s not like…” Obviously, Mr. DiCecco is challenging Sgt. Vance on her theories about what the evidence should show. He then offers that the “field is pretty big”. When asked where William was shot, he said, “It was like the side”. When Sgt. Vance attempts to confirm that he was turned sideways from his car, he said “Yeah. I, I don’t want to answer these questions anymore.” Immediately after, Sgt. Vance says that he told her three to four rounds and he responds, “Yeah, that I did say.” Again, he is controlling what he wants to answer and when he wants to answer.

m. In the midst of Sgt. Vance discussing the possibility of fingerprint evidence, Mr. DiCecco states, “I have a question. Um, when is the court thing?” This is certainly Mr. DiCecco controlling and shifting the flow of the conversation.

n. When Sgt. Vance suggests that police do not believe that a stranger came out of a field to do this, Mr. DiCecco interjected and said, “Well, when I say, when I say stranger, I don’t, I don’t know him, my, myself.” In other words, he corrects Sgt. Vance’s impression of things and explained what he meant.

o. Sgt. Vance tells Mr. DiCecco what an “innocent person” would do – suggesting an innocent person would deny her accusations as opposed to saying “I don’t want to answer these questions.”

p. Sgt. Vance offers some theories about what occurred and why. In the course of this, Mr. DiCecco interjects and says that the only reason they did not shoot him was because the gun jammed. This demonstrates assertiveness and control over what he wants to say and when he wants to say it.

q. Sgt. Vance stated, “And all these people, all these people around here, they’re fucked.” Mr. DiCecco immediately disagreed with this, saying, “Not everybody”. He is willing and able to challenge the suggestions of Sgt. Vance when he disagrees.

r. Mr. DiCecco freely discusses the character and behaviour of Mr. Schernhammer.

s. Out of the blue, Mr. DiCecco asks Sgt. Vance, “Did you go through my phone already?” Clearly, he is wanting to know what evidence the police have in order to prepare his answers accordingly. There was then a discussion about providing his password. Sgt. Vance suggests that an “innocent person” would provide the password to their phone to police. Mr. DiCecco stands by his refusal to provide the password, again indicative of being in control.

t. Again, Mr. DiCecco stated that he was not feeling good mentally.

u. Sgt. Vance advised Mr. DiCecco that he would feel better if he told the truth.

v. Sgt. Vance suggests that this will be her last chance to have these conversations with him.

w. Sgt. Vance invites Mr. DiCecco to take his coffee and muffin back to his cell with him.

x. Sgt. Vance asks if Mr. DiCecco would be willing to speak with her again after his court appearance to which he states, “Uh, maybe, depending on how I feel.” Mr. DiCecco agreed that she could come see him after the appearance to see how he was feeling.

83This court is satisfied that the Crown has established, beyond a reasonable doubt, in light of all of the circumstances, that the will of the accused has not been overborne. Further, there was absolutely no police trickery. By this time, Mr. DiCecco had ample opportunity to rest. He was reminded of the previous arrest, his rights, and that he remained under caution. He was provided with coffee and a muffin. He demonstrated to be in full control of what he wanted to say and when he wanted to say it. This statement is voluntary.

Probative Value versus Prejudicial Effect

84The Defence argues that, even if voluntary, this court should use its residual discretion to exclude this statement in its entirety as having little to no probative value which is exceeded by its prejudicial effect. The Defence states that the majority of this statement is a monologue by the officer, offering numerous police theories of what occurred which are not accepted or denied by Mr. DiCecco.

85This court would be concerned about the prejudice flowing from this statement if it were introduced in its entirety as part of the Crown’s case at trial. There are large portions of this statement which is nothing more than unanswered monologue and police theory. Further, Sgt. Vance expresses a theory of what occurred at pages 27 and 28 and then states, “You know what’s interesting about that, an innocent person says ‘no’. An innocent person says, ‘No, I wouldn’t do that’.” She then continues on with her theories of what she believes may have occurred up to page 32. Further, there is a discussion about Mr. DiCecco’s phone and a request by Sgt. Vance for the password. When Mr. DiCecco refuses to give the password at page 37, Sgt. Vance suggests that if he had nothing to hide he would give his password to police. There is then a discussion about naked women on his phone (page 38). At page 39, Sgt. Vance states, “If you have nothing to hide, innocent people, if you don’t have anything to hide, right? I don’t care about naked women.” In this court’s view, there is significant prejudice flowing from these comments and theories, undermining the presumption of innocence.

86Having said that, there are portions of this statement that are directly relevant to issues this jury will need to consider. In this statement, Mr. DiCecco provides further details about his fears, such as further information about the behaviour of Mr. Schernhammer and his associates, and who those associates are. This is relevant to his motive to have committed these offences, and also relevant to his hesitancy in sharing things with police. In some ways, this can be beneficial to Mr. DiCecco at this trial. Also, Mr. DiCecco provides further information directly related to the events in question, such as being followed by a blue car, the distance of the shooter from Mr. Schernhammer, and the relative positions when the shooting occurred. This is clearly relevant to the central issues that this jury will need to consider, including the reliability and credibility of Mr. DiCecco.

87The following portions will be redacted as any probative value is outweighed by the prejudicial effect.:

a. Page 1, l. 20 to p. 13, l. 18, ending with “..know it, right?”

b. Page 18, l. 7 to l. 14 – from “DSV: But that….” to “…gonna be there which”

c. Page 25, l. 16 starting with “GD: I have a question…” to page 26, l. 10 ending with “GD: Okay.”

d. Page 27, l. 23 starting with “DSV: You have a shotgun…” to page 29 at the very end.

e. Page 30, l. 8 starting with “”DSV: That’s….” to p. 32, l. 24 ending with “years”.

f. Page 33, l. 22 starting with “DSV: Fifteen…” to p. 34, l. 7 ending with “can”.

g. Page 34, l. 12 starting with “DSV: So maybe….” to p. 36, l. 11 ending with “…alone”

h. Page 37, l. 1 to the end.

Final Thoughts

88While the ruling of this court on voluntariness of the statements is final, the ruling relating to probative versus prejudicial effect leading to certain edits is not necessarily final as probative value and prejudice can change as the trial unfolds. If that occurs, the portion of this ruling relating to redactions can be revisited.