Citation: R.v. R.A.C., 2009 NSSC 320
Date:20091029
Docket: CRD 305401
Registry: Digby
Between:
Her Majesty the Queen
Plaintiff
v.
R. A. C.
Defendant
|
Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Restriction on publication: Pursuant to s. 486.5 of the Criminal Code
Judge: The Honourable Justice Kevin Coady
Heard: October 13th and 14th, 2009 in Digby, Nova Scotia
Decision: October 29, 2009
Counsel: Alonzo Wright, for the crown
Darren MacLeod, for the defendant
By the Court:
[1] Mr. C. is facing trial on a five (5) count indictment that includes sexual assault, forcible confinement, threats and weapons offences. These offences are alleged to have occurred between 1998 and 2008. Mr. C. elected trial by judge and jury and a preliminary inquiry has been held. Prior to calling evidence the Crown conducted a voir dire to determine the admissibility of a statement Mr. C. made to a person in authority on March 3, 2008. The only issue on this voir dire is voluntariness.
[2] The evidence tendered by the Crown on the voir dire was a video and transcript of a seven (7) hour interview. Neither the officers nor Mr. C. testified. The parties agreed that prior to this interview there were no Charter or voluntariness infractions on the part of the police.
[3] The first three (3) counts on the indictment are historical allegations (1998-2001) relating to Mr. C.’s biological sister. The weapons offences relate to Mr. C.’s arrest on March 3, 2008 on the first three (3) counts.
[4] The evidence establishes that the complainant approached the police in 2006 or 2007 with her allegations but was not prepared to proceed at that time. On March 3, 2008 she attended at the * Detachment and gave a statement to Cst. Jack Doyle, a senior investigator. This interview provided the police with reasonable and probable grounds to arrest Mr. C.. Early on that evening Mr. C. was picked up on the street. A search incidental to arrest discovered that he was in possession of a Coleman Air Pistol. Mr. C. was taken to the detachment and placed in an interview room.
[5] Cst. Doyle interviewed Mr. C. from 9:32pm until 2:25am. Cst. Girma resumed the interview at 2:35am and it concluded at 4:08am.
[6] The video of the police interview was very helpful in determining the issue of voluntariness. I was able to observe the demeanor of the police officers and Mr. C. and the interaction between both. The following are my general observations of the interview:
× The officers and Mr. C. were very cordial towards each other throughout the interview.
× The interview was never heated. The officers never raised their voices and never acted in an aggressive manner. The interview took the form of a conversation rather than an interrogation.
× I found that Mr. C. was always attempting to dominate the discussion and directed the conversation to themes he wished to discuss.
× Mr. C. was always anxious to talk about himself and he sought the approval of the officers when discussing his own life history.
× Mr. C. was always comfortable and confident and never appeared intimidated by his surroundings or the manner of questioning.
× I found that Mr. C. has a significant ego and felt that he was on an equal footing with the officers. I made this conclusion notwithstanding his remarks at page 400 of the transcript.
Q. So like, you know, don’t say ... don’t use words like force. I’m not forcing you to do anything.
A. Well I, I feel intimidated right now, just ...
Q. Me.
A. Because you’re in uniform and I’m just ... I’ve been stripped down to basically nothing. A little bit of clothing.
When considering these words in their surrounding dialogue and circumstances, I find them to be totally out of context.
× Mr. C. never complained about his environment or the officers conducting the interview. Instead he regularly commented on the officers fair treatment and courtesy.
× Throughout the seven (7) hour interview Mr. C. never displayed fatigue or emotional collapse. He stated “I’m tired” at page 375 of the transcript but showed no signs of being such. He continued to be engaged in conversation with the officer.
× Mr. C. was fully aware of the purpose of the interview and at one point he stated “you are going to use this against me”.
[7] Admissibility of this statement requires the Crown to prove beyond a reasonable doubt that it was made voluntarily. This principle was first articulated in Ibrahim v The King, [1914] A.C. 599 (P.C.) at page 609:
It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.
The Ibrahim rule was narrow in that it focused on overt promises or threats made by a person in authority.
[8] In R. v. Hebert, [1990] 2 S.C.R. 151 The Supreme Court of Canada recognized a much broader approach that involved an operating mind. The “operating mind” doctrine dispelled the notion that the confessions rule is concerned solely with whether or not the confession was induced by any threats or promises. It introduced the mental element of deciding between alternatives.
[9] The latest authority on the voluntariness rule is R. v. Oickle, [2000] 2 S.C.R. 3. In that case Iacobucci J. canvasses “hope of advantage”, “fear of prejudice”, “oppression”, “operating mind” and “police trickery” in the framework of statements by an accused to a person in authority.
[10] R. v. Oickle, supra, canvasses issues of threats and promises, including spiritual inducements, and summarizes the Court’s view at page 18:
In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt whether the will of the subject has been overborne.
[11] The Court states that “the 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.
[12] I have not been able to detect anything in Mr. C.’s interview that even remotely could be considered a threat. The entire interview was cordial and interactive. The officers never raised their voices and never invaded Mr. C.’s space.
[13] R. v. Oickle, supra, also reviews the subject of “oppression” in the interview process. The Court recognized that oppression clearly has the potential to produce false confessions. The oppressive circumstances in R. v. Hoilette (1999), 136 C.C.C. (3d) 449 were discussed in detail and the following analysis appears at page 19:
Under these circumstances, it is no surprise that the Court of Appeal concluded the statement was involuntary. Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions. Such a confession is not voluntary. For similar examples of oppressive circumstances, see R. v. Owen (1983), 4 C.C.C. (3d) 538 (N.S.S.C., App.Div.); R. v. Serack, [1974] 2. W.W.R. 377 (B.C.S.C.). Without trying to indicate all the factors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time.
[14] I can find no elements of oppression in Mr. C.’s interview. While the interview was lengthy, such was the product of Mr. C.’s desire to be part of the exchange. After reviewing the video, I was left with the impression that Mr. C. wanted to debate the officers about his personal issues not related to the purpose of the interview.
[15] Justice Iacobucci also reviewed “operating mind”. He stated at page 20:
This Court recently addressed this aspect of the confessions rule in Whittle, supra, and I need not repeat that exercise here. Briefly stated, Sopinka J. explained that the operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment” (p.936). I agree, and would simply add that, like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule. Indeed, in his reasons in Horvath, supra, at p.408, Spence J. perceived the operating mind doctrine as but one application of the broader principle of voluntariness: statements are inadmissible if they are “not voluntary in the ordinary English sense of the word because they were induced by other circumstances such as existed in the present case”.
[16] I find that Mr. C. had an operating mind throughout the interview. He was alert and engaged. There is no evidence that he suffered from a mental illness or was under the influence of a substance. Mr. C. was in full control of what he said and never complained about the officers questions. He exhibited his appreciation of the purpose of the interview when he, somewhat casually, commented that “you are going to use this against me.”
[17] R. v. Oickle, supra, discusses the issue of police trickery at page 20:
A final consideration in determining whether a confession is voluntary or not is the police use of trickery to obtain a confession. Unlike the previous three headings, this doctrine is a distinct inquiry. While it is still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system.
[18] I find that there was no police trickery during Mr. C.’s interview.
[19] Mr. C. raises two (2) aspects of the interview which he argues goes to voluntariness. The first is about the officers minimizing the offence. The other relates to the officers suggestions that “it would be better” if he admitted to the allegations.
[20] Mr. C. was 27 years old at the time of the interview and the offences were alleged to have occurred between 1998-2001 when he was 18-20 years old. Throughout the interview the police stressed that because the offences occurred when he was young, it might not be as serious as if committed as a 27 year old. The following example appears at pages 154/155:
Q. Yeah, I don’t think you broke your word to your father or mother. If this happened in the past, it happened in the past. That’s as simple as that. It, it, it doesn’t mitigate it or make it any less serious, but in my own heart I believe that there’s a reason for it.
A. Yeah.
Q. And that’s what I, I firmly believe in my own heart. So I don’t, I don’t see you as a young man in Digby who broke his word to the judge on his probation, I don’t see that, okay. I see what happened as a, as a young boy experimenting with sex. That’s what I see happened; that’s as simple as, as I can make it.
A. But not with my sister, though.
Q. Yeah, but as simple as I can make it in my own mind, okay.
A. Yeah.
Q. And that’s what I look at it as and you experimented with sex.
A. Everybody does.
Q. Everybody does. It may have got out of hand, but it’s an experiment.
A. Yeah.
[21] The police revisit this theme at page 163 of the transcript:
Q. Okay. Your problem can be fixed. There’s a lot of people worse off out there. You hand them a plate and they’d fucking trade it with you in a heartbeat.
A. Yeah.
Q. Okay. You ... they’d take your arm off getting it, okay. Your problems are fixable, okay. They can genuinely be fixed.
A. But does that mean jail time for me though?
Q. Well, if, if, if it did, it did. I’m not saying it will, but I’m saying if it did, it did, okay. You’re looking at that person who was 16 or 17 or 18 years old. That’s what I’m looking at, okay.
[22] The following exchange took place at pages 166/167.
Q. So you didn’t let somebody down in that aspect. This accusation is of a younger ... much younger young man, okay, a teenager.
A. Yeah.
Q. That’s what that accusation’s about. It’s not about ...
A. But if that was true, it still has ...
Q. It has consequences.
A. ... dire consequences.
Q. No, it doesn’t have dire conse ... it has consequences, but dealt with back eight, ten years ago.
A. Yeah.
Q. Maybe 11 years ago. That’s, that’s what that consequence is, okay. Dealt with as that age group of a person. Not a 30 or 40 or 50 year old person, you know, that type of thing. Dealt with that aspect there; that’s how it’s dealt with.
[23] This theme was repeated on a number of occasions. The police wanted Mr. C. to accept that the offence was a teenager doing something stupid.
[24] The issue of minimizing the offence was a live issue in R. Oickle, supra. The Nova Scotia Court of Appeal concluded that the police had improperly offered leniency to Mr. Oickle by minimizing the seriousness of the offences. The Supreme Court of Canada felt otherwise and stated at page 23:
Insofar as the police simply downplayed the moral culpability of the offence, their actions were [page 46] not problematic. As even the Court of Appeal recognized (at para.126), “minimizing the moral significance of the offence is a common and usually unobjectionable feature of police interrogation”. Instead, the real concern is whether the police suggested that “confession will result in the legal consequences being minimal” (para.126). As discussed above, this is inappropriate.
[25] I have not found anything that would suggest that the police were offering, or that Mr. C. was accepting, lesser consequences if he confessed.
[26] The above exchanges represent the only times that the officers equated the historical aspects of the offences with the consequences. I do not conclude that these exchanges impacted on the voluntariness of any responses. I reviewed the video and did not find that Mr. C. found these exchanges enticing or of interest. They occurred relatively early in the interview and did not prompt anything inculpatory. If anything Mr. C. was more concerned about the consequences of the charges on his reputation in the community and his ability to continue with his employment. The subject of penal consequences was not really at play. I find that the voluntariness of the statement was not affected by the minimizing of the offences.
[27] I now turn to the defence submissions on the “it would be better” comments during Mr. C.’s interview. In R. v Oickle, supra, the Supreme Court of Canada recognized many such comments as moral inducements but held that none contained an implied threat or promise. Justice Iacobucci stated that “to hold that the officers’ frequent suggestions that things would be better if the respondent confessed amounted to an improper threat or inducement would be to engage in empty formalism”. I find nothing in Mr. C.’s interview where these words vitiated voluntariness.
[28] Related to the “it would be better” argument, the defence submits that R. v Perovic, [2004] B.C.J. 3037 (BCSC) applies. It is the position of the defence that the officer suggested to Mr. C. that the interview would be the only chance to get his side of the story to the judge and that if he did not talk the judge would be left only with the position of the police. Obviously this kind of submission relates to the right to remain silent.
[29] The issue in this case is captured by the following two (2) paragraphs that appear at page 9:
54 Effectively, the investigators told the defendant that this was his opportunity to make a statement, and that if he did not seize the opportunity, there would be no other chance to have his story placed before the jury. In fact, despite suggestions to the contrary by Horton in his voir dire testimony, I believe that was a misrepresentation designed to put pressure on the defendant, not unlike the aggressive sales person who seeks to clinch a sale by telling the prospective purchaser that the deal must be made now or it won’t be available later. I have no doubt that, had the defendant maintained his silence at the time but had offered on a later occasion to speak to the police, they would have been at least reasonably receptive.
Furthermore, and more significantly, the approach taken by Horton, that this was the defendant’s opportunity to provide evidence that would be considered by the jury, and that it could be used to offset the earlier component of the statement or other evidence that the accused appeared to be uncaring, was improper and offensive. In fact, the defendant was legally entitled to choose to say nothing about the offence. Horton, by his presentation, brought pressure to bear upon the defendant, suggesting that if he did not “give his side of the story, tell how concerned he was”, then the portion of the statement where he had elected to say nothing would be shown to a jury. The intimation is that, if he didn’t take this opportunity to say something, the jury would be presented with evidence of the accused apparently not caring about the deceased and simply refusing to discuss the matter.
[30] The Court found that this was a form of threat in that it was an attack on the accused’s right to remain silent. The Court found it significant that Mr. Perovic did not have the benefit of legal advice and did not appreciate the true effect of the representations the officer had made. The Court also noted that he never asserted his right to counsel after that point when he had stressed it so strenuously to that point. The Court also factored in misrepresentations made to Mr. Perovic at the same time concerning the culpability of his good friend.
[31] The Court concluded that Mr. Perovic abandoned his resolve to remain silent as a result of the following factors:
1. The police investigators presented him with quite a daunting array of evidence that they had against him.
2. The approach taken by the investigators, and particularly Horton, in the second portion of the interview, was decidedly more harsh and confrontational than it had been in the early interview phase.
3. The defendant’s opinion or belief that he could have his lawyer with him at an interview was quite summarily dismissed.
4. There was a clear intimation to the defendant that if he did not make a statement, the jury would be shown the videotape which arguably showed a callous disregard for the taking of a human life.
5. The police prevailed upon the defendant’s concern to shield Adam Sharpe from liability, but did so in conjunction with a clearly erroneous representation of Sharpe’s peril.
[32] R. v. Oickle, supra, requires a Court to consider all factors affecting voluntariness. I conclude that none of the above factors were present in Mr. C.’s interview. I cannot find that the reference to the one sided story had any impact on Mr. C.. He had received legal advice and indicated his awareness of the purpose of the interview. He did not provide a confession, per se, after these comments. R. v Perovic, supra, does not assist Mr. C. on this voir dire.
[33] I find, for the reasons cited, that Mr. C.’s interview is voluntary and is therefore admissible at his trial.
J.