Citation: R. v. Martin, 2010 NSSC 383
Date: 20101020
Docket: CRH No. 316875
Registry: Halifax
Between:
Her Majesty the Queen
v.
John Edward Martin
DECISION ON VOIR DIRE
Judge: The Honourable Chief Justice Joseph P. Kennedy
Heard: April 26, 2010, in Halifax, Nova Scotia
Counsel: Donald C. Murray, Q.C. for the accused, Mr. Martin
Perry F. Borden for the Crown
By the Court:
[1] After being arrested and detained the accused, John Edward Martin, gave a statement to police regarding the sexual assault allegations in this matter. Mr. Martin is hearing impaired. The Defence objected to the admission of that statement on the basis of the common law confessions rule and the Charter of Rights and Freedoms. Consequently, a voir dire was held to determine the admissibility of the accused’s statement. For the reasons that follow, I conclude that the statement of the accused should be admitted.
FACTS:
[2] The voir dire in this matter was heard on April 26, 2010. At the voir dire, both the arresting officer, Cst. Skinner, and the interviewing officer, Sgt. Martin, testified on behalf of the Crown. Cst. Skinner is a member of the RCMP. Sgt. Martin is a member of the Halifax Regional Police. The accused did not testify at the voir dire; this is his right and I draw no negative inference regarding the accused’s decision not to testify.
[3] Cst. Skinner testified that before the day in question he was already aware of the accused as a result of an ongoing, and unrelated, investigation into allegations of theft and mischief involving the accused. Ready to conduct an investigative interview of the accused regarding these theft and mischief allegations, Cst. Skinner consulted the Canadian Police Information Centre (CPIC) where he learned that a first instance warrant for sexual assault existed for the accused. Cst. Skinner also learned that Sgt. Martin had been assigned to investigate this sexual assault.
[4] On the morning of April 14, 2008, Cst. Skinner contacted Sgt. Martin to inform her that he was likely going to be attending at the accused’s residence and that he would be executing the existing warrant. Cst. Skinner states that the purpose of this initial contact with Sgt. Martin was not to coordinate their investigations, but to ensure that Sgt. Martin was prepared to continue her investigation if the accused was detained.
[5] Cst. Skinner was aware that the accused was hearing impaired and that he would require an American Sign Language interpreter to communicate. Cst. Skinner arranged for an interpreter, Debbie Johnston-Powell, to meet him at the apartment building of the accused. Cst. Skinner arrived at the apartment building before the interpreter and was met by Cst. Landry, who is assigned to the designated apartment building of the accused. Cst. Landry facilitated entry to the building, and together the officers went to the accused’s unit.
[6] Cst. Skinner testified that the accused answered the door. He further testified that the accused’s wife spoke sign language and that he communicated to the accused, through his wife, that he was there to arrest him on a sexual assault warrant. Cst. Skinner and Cst. Landry arrested the accused at 0905 hrs and escorted him outside. Cst. Skinner was equivocal on when the interpreter arrived, but certain that she was outside when Cst. Skinner cautioned the accused and read him his Charter rights. This was done by reading verbatim a prepared card to the accused through the interpreter. Cst. Skinner states that the accused responded that he understood his rights and that he wished to consult a lawyer. At this point, the accused was cuffed, placed in Cst. Skinner’s police vehicle, and transported to the Halifax Regional Police headquarters.
[7] Cst. Skinner stated that upon arriving at Halifax Regional Police headquarters he telephoned Legal Aid on behalf of the accused at 0940 hrs. Legal Aid responded at 1005 hrs, and Cst. Skinner states that he spoke with counsel for one to two minutes before passing the phone over to the accused, and leaving the accused and the interpreter in a private room. Cst. Skinner testified that he apprised Legal Aid of the two sets of charges facing the accused. Cst. Skinner’s notes state the conversation with Legal Aid lasted until 1022 hrs. His notes also state that during the time between when Legal Aid was first contacted, and the time when the consultation began, the accused made unsolicited remarks, denying the theft and mischief allegations, which were communicated to Cst. Skinner by the interpreter. Cst. Skinner also states that in this intervening period he explained to the interpreter that her role was just to interpret the private conversation of the accused with his counsel. He did not consider obtaining a second interpreter to provide interpretation during the consultation with Legal Aid.
[8] After the consultation with Legal Aid, the accused was placed in an interview room with the interpreter, and interviewed by Cst. Skinner regarding the theft and mischief allegations. This interview took place between 1022 to 1100 hrs, was videotaped, and also observed by Sgt. Martin. Cst. Skinner states that he again cautioned the accused and read him his Charter rights, but could not recall whether this was a primary or secondary caution. The videotape of this interview was not entered into evidence on this voir dire.
[9] Immediately following this interview, Cst. Skinner switched with Sgt. Martin, and Cst. Skinner observed Sgt. Martin’s interview of the accused regarding the sexual assault allegations. Cst. Skinner testified that Sgt. Martin cautioned the accused again and read him his rights at 1119 hrs, and that the accused declined the opportunity to speak to a lawyer. He further testified that this second interview lasted until 1209. Following the second interview Cst. Skinner gave Sgt. Martin the paperwork necessary to charge the accused for theft and mischief. Cst. Skinner could not recall whether he had told the accused that he would be charged.
[10] Sgt. Martin testified that her first attempt to contact the accused was at the end of October 2007, but that it was unsuccessful. In December 2007, an information was sworn and a first instance warrant issued. Sgt. Martin stated that she was contacted by Cst. Skinner on April 14, 2008 and apprised of the impending arrest.
[11] Sgt. Martin testified that her first contact with the accused was at approximately 1000 hrs at the police headquarters. Sgt. Martin also testified that she contacted Legal Aid at 1005 and spoke with counsel before passing the phone to the accused. Sgt. Martin states that she advised counsel of the sexual assault charges facing the accused, but could not recall any further details of the conversation. She could not recall how long the conversation lasted. Sgt. Martin stated that she met with the interpreter before the Legal Aid consultation, but did not brief her on confidentiality issues. Sgt. Martin further stated that she did not consider obtaining a second interpreter to conduct the Legal Aid consultation interpretation.
[12] Sgt. Martin testified that she observed Cst. Skinner’s interview and that her interview of the accused commenced at 1115 hrs and concluded at 1209 hrs. Sgt. Martin further testified that she gave the accused a primary caution. Although aware of the practice of secondary cautions, Sgt. Martin could not explain why a secondary caution was not given after Cst. Skinner’s interview. Sgt. Martin stated that the accused understood the caution she gave. She also stated that the accused was not told a charge had already been laid for sexual assault. Sgt. Martin’s caution and the accused’s response are captured in the following exchange:
Sgt. Martin: Okay. So I just want to make sure that you understand. I know that you were talking to Cst. Skinner earlier about a different matter. And the reason that I want to talk to you today is in relation to ¼
Accused: Sexual ¼
Sgt. Martin: A sexual assault.
Accused: Charge. Rape or something.
Sgt. Martin: Yes. A sexual assault.
¼
Sgt. Martin: So you understood that you were under arrest?
Accused: Uh-huh.
Sgt. Martin: Okay. And you spoke with legal counsel before you started speaking with Cst. Skinner?
Accused: Yeah. Yeah.
¼
Sgt. Martin: Okay. And so I want to make sure that you understand that if you want to speak to a lawyer again that you can just let me know and we can¼
Accused: No. No, no. No, it’s okay.
Sgt. Martin: Okay. But if at any time you do, just stop and ¼ tell us.
Accused: Yeah.
Sgt. Martin: And also that you have the right to apply for legal assistance through the Provincial Legal Aid Program.
Accused: Yeah. I know that.
Sgt. Martin: Okay. All right. So you understand?
Accused: Uh-huh.
Sgt. Martin: And again, your police warning. I wish to give you the following warning.
Accused: Uh-huh.
Sgt. Martin: You need not say anything. You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything.
Accused: Right.
Sgt. Martin: Anything you do say may be used as evidence. Do you understand that?
Accused: Yeah. I use it for court. Yeah. No, no, no. You’re not going to do that.
[13] Ultimately the accused gave a statement concerning the sexual assault allegations to Sgt. Martin (Exhibit VD1A). The statement is not a confession.
ISSUES:
[14] The Defence framed his attack on the admissibility of the accused’s statement in terms of voluntariness and s. 7 of the Charter. After reviewing the submissions of the Defence I have great difficulty understanding his s. 7 argument other than from the well-accepted position that the right to silence is subsumed within the common law confessions rule (R. v. Singh, 2007 SCC 48, [2007] 3 SCR 405 [Singh]). It seems to me that the real complaint of the Defence, with respect to the Charter, is a violation of the right to counsel in s. 10(b) and not a violation of the right to silence derived from s. 7 of the Charter. Thus, I would frame the issues as follows:
(a) Whether the Crown has proven beyond a reasonable doubt that the statement given by the accused was voluntary?
(b) Whether the accused has established a breach of his s. 10(b) rights and whether such breach, if established, warrants an exclusion remedy under s. 24(2) of the Charter?
LAW AND ARGUMENT:
(a) Whether the Crown has proven beyond a reasonable doubt that the statement given by the accused was voluntary?
Crown
[15] The Crown argues that it has satisfied its burden of proving, beyond a reasonable doubt, that the accused’s statement was voluntary. The Crown submits that the entire circumstances must be assessed when determining voluntariness. The Crown further submits that when such a contextual approach is taken it is clear that the accused had an operating mind, knew that he did not have to talk if he did not want to, knew that he could call a lawyer at any time, knew why he was there, and actively engaged in a conversation that was both narrative and in question and answer format. The Crown contends that this satisfies the test for voluntariness outlined in R. v. Oickle, 2000 SCC 38, [2002] 2 SCR 3 [Oickle].
Defence
[16] The Defence raises very little argument on the issue of voluntariness. The Defence argues that the caution given by Sgt. Martin was inadequate because it was a primary caution and not a secondary caution. The Defence also notes that the accused had a medical appointment and that the police were in a position of control over whether he would be able to make his appointment.
Application
[17] Under the common law confessions rule “no statement by an accused is admissible in evidence against him unless it is shown 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” (Ibrahim v. R., [1914] A.C. 599 at 609 (Hong Kong P.C.)). The onus is on the Crown to prove that the statement was voluntary. The burden on the Crown is proof beyond a reasonable doubt: Oickle at para. 30. In my view, the Crown has satisfied that burden in this case.
[18] In Oickle, the Supreme Court of Canada held that there is no single test for voluntariness, and that instead, courts must look to a series of factors to determine whether a statement was voluntary. These factors include whether the police induced the statement with threats or promises, whether the conditions under which the statement was made were oppressive, whether the accused had an operating mind when making the statement, and whether police engaged in other trickery.
[19] In this case, there is no evidence to suggest that the police induced the accused’s statement with threats or promises or that the police engaged in trickery. There is nothing in the manner in which the accused was interviewed by the police that could even begin to approach oppression.
[20] The accused was cautioned on three occasions, and appears to have understood those cautions. The accused was given the opportunity to speak to counsel, which he exercised. The accused never stated that he wanted to invoke his right to silence or that he wanted to stop the interview. The police never pressured the accused to continue with the interview. The accused had an operating mind when he made the statement: he knew what he was saying and that he was saying it to the police, and he knew that it could be used against him.
[21] The Defence argues that Sgt. Martin’s failure to give a secondary caution somehow renders the accused’s statement involuntary. The Defence submits that the Court does not know what transpired in Cst. Skinner’s interview with the accused. The Defence speculates that the accused’s outburst during the second interview (Exhibit VD1A at p. 9-10) could have its genesis in the first interview.
[22] While it is true that it would be better to have had a copy of the video of Cst. Skinner’s first interview and that Sgt. Martin should have given the accused a secondary caution, this does not necessarily render the statement of the accused involuntary. The first interview was observed by Sgt. Martin who did not recall anything out of the ordinary. For the most part, the accused’s demeanor remained relaxed in the second interview. Moreover, from the passage of that interview cited above, it appears that the accused understood his rights and voluntarily participated in the interview. A secondary caution serves to insulate subsequent interviews from previous errors or misconduct on the part of other police officers. In this case, there is simply no evidence of prior misconduct during that first interview.
[23] “[T]he notion of voluntariness is broad-based” (Singh at para. 31). This is why there is no hard-line test for voluntariness and instead a series of factors that must be examined in the context of a given case. “[T]he 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). In this case, there is nothing in the conduct of the police to suggest that the statement given by the accused was anything less than voluntary. When all the circumstances under which the statement given by the accused are considered there is no doubt that it was given voluntarily.
(b) Whether the accused has established a breach of his s. 10(b) rights and whether such breach, if established, warrants an exclusion remedy under s. 24(2) of the Charter?
Crown
[24] The Crown acknowledges that the Charter was somewhat “glossed over” in this case, but argues that when the statement is viewed in the entire context of the case, it cannot be said that it was obtained in violation of the Charter. The Crown submits that the accused knew what he was being detained for, understood his rights, exercised his right to counsel, and declined the offer of further counsel. The Crown contends that in these circumstances there was no Charter violation. The Crown distinguishes Dennie, infra on the basis that the accused in that case was not offered an interpreter and did not understand his rights. In this case, the accused was offered an interpreter, understood his rights, and voluntarily participated with the police investigation after consulting with counsel. The Crown admits that the statement is not a confession or a “smoking gun.” Nonetheless, the Crown argues that the public would be disturbed if such a statement were excluded.
Defence
[25] The Defence cites R. v. Dennie (1997), 43 CRR (2d) 144, 1997 CarswellOnt 1283 (WL Can) (Ont Ct J (Gen Div)) for the proposition that the police must take special care, when investigating and interviewing a person who is hearing impaired, in order to treat him/her fairly and in compliance with the Charter. The Defence argues that the accused’s right to counsel was violated in two ways. Firstly, the police did not communicate the jeopardy the accused was facing when communicating with Legal Aid counsel. Secondly, the police should have offered a second sign language interpreter to the accused for the purposes of his legal consultation because the interpreter was assisting the police and in an apparent conflict of interest. The Defence cites R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant] for the three-part test for determining whether the admission of evidence obtained in breach of the Charter would “bring the administration of justice into disrepute.” The Defence argues that the alleged Charter breach was serious because it negatively affected the legal advice the accused could obtain. The Defence further argues that the seriousness and impact of the Charter breach outweighs society’s interest in the adjudication of the case on its merits because the Crown does not need the statement in order to make its case – the statement was not a confession or a “smoking gun.”
Application
[26] The right to counsel, protected in s. 10(b) of the Charter, is one of the most fundamental principles of our criminal justice system.
[27] Recently, in R. v. Sinclair, 2010 SCC 35 [Sinclair], the Supreme Court of Canada revisited the right to counsel protected by s. 10(b). Sinclair, a 5-4 decision, dealt with the issue of “whether a detainee who has been properly accorded his or her s. 10(b) rights at the outset of the detention has the constitutional right to further consultations with counsel during the course of the interrogation” (para. 1); however, in resolving this issue the majority made a number of remarks that are useful for the analysis of whether the accused in this case was properly accorded his s. 10(b) rights at the outset of the detention.
[28] In Sinclair, the majority explained that “[s]ection 10(b) does not guarantee that the detainee’s decision is wise; nor does it guard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice” (para. 26). The majority noted that s. 10(b) has both an informational component and an implementational component (at para. 27):
Section 10(b) fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called the informational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This is called the implementational component. Failure to comply with either of these components frustrates the purpose of s. 10(b) and results in a breach of the detainee’s rights . . ..
[29] I agree with Defence counsel that when a detainee is hearing impaired the police must take extra precautions to ensure that the informational and implementational components of s. 10(b) are satisfied. The case of Dennie, cited by the Defence, is an example of the police not taking sufficient precautions. In Dennie, the accused, who was hearing impaired, was not provided an interpreter. Moreover, the accused’s reading comprehension ability prevented him from understanding the written Charter and caution placed before him before he submitted to a breathalyzer test. I agree with the Crown that the facts in Dennie are quite distinguishable from the facts in the case at bar.
[30] In my view, while the precautions taken by the police in this case could have been improved, they were adequate to satisfy the informational and implementational components of s. 10(b)It would have been better had Cst. Skinner waited a reasonable time for the interpreter to arrive before attending at the accused’s residence.
[31] I reject the Defence’s submission that the police should have obtained a second interpreter for the accused’s consultation with Legal Aid. The Defence cited no case law to support such a submission. Mandating the use of multiple interpreters is, in my view, unnecessary, inefficient, and expensive. Interpreters are not agents for the police, they are impartial professionals who convey communication between parties that would otherwise be unable to communicate. I note that the onus is on the accused to establish a breach of his Charter rights. There is nothing on the record before me to suggest that the interpreter was biased, that the accused was unsatisfied with quality of the interpretation, or that the accused felt uncomfortable with the interpreter’s interpretation during his Legal Aid consultation.
[32] I also reject the submission that the police failed to adequately convey the jeopardy the accused was facing to Legal Aid counsel, however, I share Defence counsel’s concern that the Crown’s evidence on this point was less than it should have been. Both officers testified that they contacted Legal Aid at the same time and that they spoke with Legal Aid counsel before passing the phone to the accused. Both officers testified that they could not recall the nature of the short conversation they had with Legal Aid counsel other than to say that counsel was informed of both sets of allegations against the accused. This level of confusion is disappointing, and were it not for other circumstances in this case, I might have placed more weight on this inconsistency.
[33] What overcomes the inconsistency of the Crown’s witnesses is the fact that they both testified they advised Legal Aid counsel of the less serious theft and mischief allegations and the more serious sexual assault allegation. This is supported by the exchange between the accused and Sgt. Martin cited above. When Sgt. Martin initially begins to explain the reason she is interviewing the accused, the accused interrupts her before she can finish, and states “Sexual¼charge. Rape or something.” From this exchange it is evident that the accused is already aware of his reason for being there, an awareness he most likely gained from the initial conversation he had with Cst. Skinner regarding the warrant for sexual assault as well as his conversation with Legal Aid counsel.
[34] The Defence complains about the level of detail the police provided Legal Aid counsel regarding the allegations the accused was facing and the fact that a charge had already been laid in the sexual assault matter. The Defence asserts that this lack of information could negatively impact the advice given by counsel because counsel would not be aware of the jeopardy facing the accused. I disagree. The Defence cites no case law to support its assertion that the fact a charge has already been laid must be communicated to counsel or its assertion that a certain level of information regarding the allegations must be communicated to counsel.
[35] Section 10(a) of the Charter requires the police to inform an accused, upon his/her arrest or detention, of the reasons for his/her arrest or detention. It follows that counsel need only be informed of the reasons for the accused’s detention and not the details. In Sinclair, the majority held that “the cases thus far do not support the view that the common police tactic of gradually revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him automatically triggers the right to a second consultation with a lawyer, giving rise to renewed s. 10(b) rights” (para. 60). If such a tactic is permissible, it follows that police do not have to show their hand to Defence counsel before the right to counsel is exercised.
[36] However, if the reasons for the accused’s detention change, and the accused faces increased jeopardy, a further consultation with counsel may be required (Sinclair at para. 51). The increase in jeopardy must be real and significant. For example, in R. v. Evans, [1991] 1 SCR 869 the accused was detained on a marijuana charge. He waived his right to counsel and submitted to an interview. During that interview the accused became the primary suspect in an ongoing murder investigation, but the police failed to make this information known to him, other than saying that the circumstances had changed. The police failed to give him another opportunity to contact counsel. The Court held this failure to be a violation of s. 10(b).
[37] In this case, the jeopardy facing the accused did not increase when the sexual assault charge was laid. The accused was aware from the initial contact with Cst. Skinner that he was being arrested on a sexual assault warrant. The police informed Legal Aid counsel that the accused was being detained on a sexual assault allegation. The statement given by the accused evinces both an awareness of the allegation he faced and the seriousness of this allegation. The fact that the police were prepared to lay a charge on this allegation did not increase the jeopardy facing the accused. In my view, the s. 10(b) rights of the accused were not breached.
[38] If I am wrong, and the s. 10(b) rights of the accused were breached, either because of the use of a single interpreter or because the police provided inadequate information to counsel, I would conclude that notwithstanding the admission of the statement given would not bring the administration of justice into disrepute.
[39] In Grant, the Supreme Court of Canada revisited the test for determining whether the admission of evidence obtained through a breach of the Charter would bring the administration of justice into disrepute. The Court outlined a three-part analysis for determining whether to admit or exclude such evidence (at para. 71):
. . . When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. ...
[40] In this case, if the police conduct did amount to a breach of the Charter that conduct was not serious. The police were aware of that the accused was hearing impaired and were trying to take appropriate steps in these circumstances. The accused was Chartered and cautioned on three occasions. He was given the opportunity to contact counsel, which he exercised. There is no evidence of police inducement, trickery or oppression. While the police could have done a better job, they were acting in good faith throughout the investigative process. The less serious nature of the police conduct militates toward admitting the statement.
[41] On the other hand, the breach of the Charter may have had a significant impact on the accused’s Charter-protected interests. If the accused felt uncomfortable communicating with counsel because of a less than impartial interpreter he may not have been able to properly instruct counsel as is protected by s. 10(b). Further, if the seriousness of the charge was not conveyed to counsel, the accused may have received different advice regarding how to exercise his rights, and in particular, his right to silence. The significant impact of the alleged breach militates toward excluding the statement.
[42] Society’s interest in the adjudication of the case on its merits is concerned both with the impact of admitting evidence and with the impact of not admitting evidence. The Grant test will always involve a balancing of these interests. One factor that is relevant to this balancing is “[t]he importance of the evidence to the prosecution’s case” (Grant at para. 83).
[43] Both the Crown and the Defence agree that the statement in question is not a confession or a “smoking gun.” The Crown candidly stated that it did not need the statement, but nonetheless urged that society’s interests supported its admission. I agree.
[44] In Grant, the Court stated that the role of the trial judge “on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute” (para. 71). In my view, if a Charter breach were established, which I have found was not the case, a balancing of the lines of inquiry discussed would favour admission of the statement given by the accused to Sgt. Martin.
CONCLUSION:
[45] The Crown has proven beyond a reasonable doubt that the statement given by the accused to Sgt. Martin was voluntary. The police did not induce the accused to make his statement, employ trickery, or create an oppressive atmosphere. The accused had an operating mind when he gave his statement.
[46] The accused has failed to establish a breach of his Charter rights. The accused was cautioned and read his Charter rights on three occasions. The accused exercised his right to counsel. His counsel was informed of the allegations and jeopardy he was facing. The statement of the accused evinces both knowledge and awareness of the seriousness of the allegations he faced. Neither the accused’s right to silence nor his right to counsel were breached.
[47] Even if a breach could be established, the three-part test for admitting evidence obtained through a breach of the Charter supports admitting the accused’s statement in the circumstances of this case. The police conduct was not a serious breach. The impact of the alleged breach was significant. Society’s interests favour admitting the statement despite its lesser significance to the Crown’s case. Taken together, and appropriately balanced, these lines of inquiry support admitting the statement of the accused.
Kennedy, C.J.