Ontario Superior Court of Justice

Between

Her Majesty the Queen

Respondent

and

[REDACTED]

Applicant

Christina Lynch, for the Crown

Matthew Friedberg, for the Accused

Released: February 20, 2006

O'CONNOR J.

REASONS FOR RULINGS

[1] [REDACTED] is charged with sexual assault and other sexual offences against his daughter, L, over a six-year period ending when she made her allegations to the CAS and the police at age 15. He is also charged with assault with a weapon against L and his son. The alleged weapon was a snowbrush.

[2] L provided videotaped statements to the police on December 10, 2003, pertaining to the assault with a weapon allegation and on December 23, 2003, detailing the multiple sexual assault and other allegations.

[3] [REDACTED] was arrested and charged with each of the offences later on the same days that she gave her video statements. On the occasion of each arrest he provided his own videotaped statements. The defendant seeks an order excluding these statements from evidence at his trial on two grounds - that the crown has failed to prove beyond a reasonable doubt that they were made voluntarily and that the statements were obtained in a manner that breached his s. 7 Charter right to remain silent. Upon agreement the court conducted a blended voir dire dealing with both statements and issues.

The December 10/03 Statement

[4] L gave this statement between 5:50 pm and 6:38 pm on December 10, providing particulars of beatings she said her father inflicted on her and her brother over several years, including one with a snowbrush the previous weekend. The police called [REDACTED] at 7:00 pm and arranged for him to attend at the station at 8:00 pm. Upon his arrival an officer at the front desk had him sit down while he paged the officer-in-charge, Constable Rory Steele. The front desk officer had no involvement in the investigation. Const. Steele arrived and arrested [REDACTED]. He later charged him with assault with a weapon. He escorted him to an interview room. He read him his rights to counsel and cautioned him that he had a right to remain silent. He arranged for [REDACTED] to speak to duty counsel by telephone in private. There was a delay of 42 minutes before the duty counsel called back, during which [REDACTED] remained alone in the interview room. The call took 13 minutes. After the call the officer asked [REDACTED] some introductory questions about his background, education,

addresses and physical characteristics. He then undertook a question and answer interview that lasted about an hour and a half, including a break of 20 minutes when the officer left to do "...up some paperwork." In all, [REDACTED] was in the room for about three hours.

[5] The room was 12 feet by 10 feet in size, sparsely furnished, with no windows and one door. During the 42 minute delay while waiting for duty counsel to call back, [REDACTED] can be seen on the tape mumbling to himself, at times crying profusely and directing a monologue apparently at the wall behind him.

[6] [REDACTED] says that during the interview Const. Steele employed tactics that rendered the statement involuntary, in that it was obtained by threats, inducements and promises of favours, in an atmosphere of oppression. Further, he argues the techniques and strategies breached his s. 7 Charter rights to remain silent by inducing him to speak when he had clearly indicated he did not wish to do so.

[7] The onus is on the crown to prove beyond a reasonable doubt that the statement was given voluntarily. The onus is on the accused to prove on a balance of probabilities the alleged breach of his Charter right.

The Voluntariness Issue

[8] There is no issue that [REDACTED] was given his right to counsel and exercised it in private. He was also advised of his right to remain silent, although the officer neglected to give the secondary warning that if he had spoken to anyone else in authority, it should not influence his decision to make a statement.

[9] Const. Steele generally conducted the interview/interrogation using what is known as the [REDACTED] Technique of Interviewing and Interrogation, although he minimized its importance to his interview. This technique involves the interrogator developing themes during a tightly controlled questioning session. The themes include befriending the suspect, minimizing his involvement in the offence that the officer tells him he "knows absolutely" he committed and baiting the suspect by appealing to his sense of manhood, pride, or in this case, his love for his children. The questioner immediately cuts off any attempts by the suspect to deny involvement. He repeatedly asks for an explanation of why he committed the offence, rather than whether he did it.

[10] The [REDACTED] Technique of questioning is not inherently objectionable. The police must be afforded the necessary latitude to perform their responsibilities to society. Inflexible rules must not be allowed to straitjacket their legitimate pursuits. Questioning suspects and witnesses to a crime is an essential and often the most effective investigative tool the police possess. However, the protection of the Charter rights of accused persons to fair treatment during investigations,

including, for example, the right to be secure against unreasonable search and seizure or to have used against them only confessions that are voluntarily given to the police, and many others, must be assiduously protected. The court's function is to find the fair and appropriate balance between these competing interests.

[11] The classic confessions rule has evolved over time to its current state in R. v. Oickle (2000), 147 C.C.C. (3d) 321 (S.C.C.). The concern of the court focuses on the reliability of a statement made by an accused while in police custody or as the result of police conduct during questioning. The court should direct its inquiries to the effect on the particular accused before it of any threats or promises or inducements made to him, the degree of oppressive circumstances under which the questioning took place, whether the accused had an operating mind during his interrogation, whether he had the benefit of legal advice or whether the police used unfair tricks or lies to gain information or admissions. Thus, the court should not rely on hard and fast formulae whereby, for example, any threat or inducement must result in rejection of the statement from admission

into evidence. The court should apply a contextual approach. It should explore the nature and the seriousness of a promise or threat or oppressive circumstances surrounding a confession and examine the effect that these factors had on the particular accused before the court. Was he cowed by an alleged threat or did he dismiss it? Was he worn down by a persistent, badgering or excessively aggressive line of questioning such that he finally made admissions he had previously adamantly denied? Did admissions come after a lengthy period of being deprived of food, clothing, water, or sleep or the conditions under which he was being detained or did these circumstances have little effect on his ability to give reasoned and responsive answers? Did false evidence the police said they had rattle him, bringing about an admission or perhaps an apology for having done something "if you say I did it", or did he call their bluff and reject the ‘evidence'?

[12] Of course questions like these should not be asked in isolation of eachother. The court must examine the panoply of events, questions and circumstances of the confession to determine whether the crown has proved beyond a reasonable doubt that it was given voluntarily. In Oickle, the court says at paragraph 71; In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it

did not give rise to an "inducement" as it was understood by the narrow Ibrihim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one's nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for

several hours in the middle of the night during an interrogation: .... On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one...

[13] In this case, on December 10, 2003, the only allegations against [REDACTED] were two incidents of assault with a weapon against his children. Before the questioning started, [REDACTED] received legal advice in private. He was advised of his right to remain silent. He was given water and was not deprived of food, sleep or clothing over his relatively short period of detention and interrogation. He quite readily admitted beating his children in order to discipline them. He said he used a

belt or strap. He denied ever using a snowbrush, as L had alleged. The officer focused the interrogation on getting an admission of the use of the snowbrush. Employing several of the [REDACTED] techniques, the officer subjected [REDACTED], in varying degrees, to some of the elements discussed above that can induce an involuntary statement. At times the questioning was aggressive and incessant. For example, numerous times the officer insisted that he knew [REDACTED] had used a snowbrush to assault his children and that he should just come clean and admit it. He would be a better man for doing so. [REDACTED], however, admitted only that he used a belt to discipline them, but never a snowbrush. Despite the officer's continually coming back to the issue, to the point of badgering him, [REDACTED] never succumbed to the snowbrush allegation. This shows a certain resilience in [REDACTED]. A weaker person may have succumbed to the pressure and may have sought an end to it by agreeing to whatever the officer wanted to hear. The officer appealed to [REDACTED]'s conscience as a father who loves his children. He used the false evidence technique, telling [REDACTED] he had evidence that the marks on his children were made by a snowbrush. Nothing worked to induce the admissions the officer sought.

[14] In R. v. Janusz Ryback, released September 22, 2003, Thomas J. of the Superior Court of Justice said at page 17; Only threats or inducements which actually have an effect on the subject and are causal in producing the confession will render the statement inadmissible. Inducements which have no effect upon the subject will not render the statement involuntary: R. v. Wood (1994), 94 C.C.C. (3d) 193, a judgment of the Nova Scotia Court of Appeal.

[15] I have observed the videotape of the interview. In my view [REDACTED]'s demeanour, composure and the responses to the questions put to him are not those of someone whose free will has been so broken that he is unable to deny accusations or that his memory has become so befuddled that he will agree with whatever is put to him by the questioner. He remains quite composed throughout

the questioning, firm in his position that he beat his children to discipline them, but not with a snowbrush.

[16] I find the crown has proven beyond a reasonable doubt that the statement was given voluntarily.

The s. 7 Charter Issue

[17] [REDACTED] argues that he wished to exercise his s. 7 Charter right to remain silent throughout the interview and that he told the officer on numerous occasions that he did not wish to speak any further. He says the state used its superior power to override his choice by keeping him in the room and refusing to take no for an answer.

[18] The crown argues the simple way to exercise the right to silence is to say nothing. By continuing to respond to questions when he has had legal advice and when he has been told he need not say anything indicates he has waived his right to silence.

[19] [REDACTED] says the following at the pages indicated in the transcript of the

interview:

[REDACTED]: Yes. I'm, I'm...

Steele: So you don't have to say anything...

[REDACTED]: ...not going to say anything about the charges but I know

(inaudible) I know I can't change your mind and (inaudible) to talk

to a lawyer. (Inaudible). (p. 6)

[...]

[REDACTED]: I don't really want to talk about la-, last Saturday, because last

Saturday because I didn't see myself doing anything wrong.

Steele: Well, tell me what you did and then we'll discuss whether it's

wrong or right...(p.16)

[...]

Steele: I know you remember. I know you know what I'm talking about.

[REDACTED]: Yeah, but I don't want to say anything for you to misinterpret.

Steele: Well, how can I misinterpret it? Tell me what? (p. 19)

[...]

[REDACTED]: I don't think I can answer the question (inaudible) you want me to

answer officer. Because I don't want to say anything that you

know, you might take it differently. (p.24)

[...]

Steele: Eh? What did he do to cause you to get that angry?

[REDACTED]: I don't want to say anything more. Because I know that um, who's

to say that the (inaudible) police tried to, to use discretion and

because they were out of order and I... (p.27)

[20] In addition to these instances of his expressing a wish not to continue with the interview, there are about six occasions where the transcript indicates that [REDACTED] fails to respond to a question. In some instances the officer rephrases the question slightly and puts it to [REDACTED] again. The defence argues there is no difference between someone saying "I don't want to say anything" and one who says nothing. There is no better way to exhibit a wish to remain silent than to actually do it.

However, the transcript is somewhat misleading on this point. Although it indicates he made no response several times before the officer speaks again, the tape shows the pause was very brief or that [REDACTED] is simply pausing to think of his answer, which he then gives a few seconds later.

[21] The issue is whether the state used its superior power to override the accused's choice not to speak to the police. In R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.), the court discusses the necessary balance that must be maintained between the protection of an accused's right to remain silent and the state's interest in law enforcement. At page 38, McLachlin J. says that "...the Charter requires that the suspect be informed of his or her right to counsel and be permitted to

consult counsel without delay. If the suspect chooses to make a statement, the suspect may do so. But if the suspect chooses not to, the state is not entitled to use its superior power to override the suspect's will and negate his or her choice."

[22] In my view Const. Steele did not impose his will upon [REDACTED], demanding or insisting that he continue answering his questions. The officer is entitled to conduct a vigourous interview with the goal of obtaining admissions of involvement in serious offences. He is not permitted to use his "superior power to override the suspect's will and negate his or her choice" to remain silent.

[23] Here, [REDACTED] had not been deprived of food, clothing or sleep, and the interview was not lengthy. He was permitted to complete his answers - although the officer kept him on track when he tended to wander - before the next question was asked and the officer did not embark on long soliloquies designed to convince [REDACTED] that the police knew everything and he might as well admit it. These are examples of circumstances from cases where the courts have considered a breach

of the right to remain silent. See R. v. Barges, [2005] O.J. No. 5595 (Ont.S.C.J.), R. v. Hebert (1990), 57 C.C.C. (3d) 321 (S.C.C.), R. v. W.S. [2002] O.J. No. 546, R. v. Holly (1989), 31 O.A.C. 279.

[24] [REDACTED] knew full well he need not say anything if he so wished. He had been advised of this right by the officer at the outset of the interview and presumably by duty counsel. If he did not wish to speak, he could simply have kept quiet. In viewing the videotape and reading the transcript several times, it seems to me [REDACTED]'s ultimate goal is to convince the officer that he was a good father who loved his children and who showed his love by imposing strict discipline, thus

ensuring they did well at school and did not associate with the wrong people (L was not permitted to date or even speak to boys). He quite readily admits he beat them, but justifies this conduct as being in their best interests. He wants to get this message across to the officer. He begins asserting this position at the outset of the interview, even before the officer had completed giving him his rights to counsel and to remain silent. At page 4 of the transcript he says "...I haven't done anything criminal to my children., assault them with a weapon. I do discipline my

children. I'm not saying that I don't." He repeats this theme throughout the interrogation. In the few instances when he says he wished not to speak further, he provides an explanation, such as he did not do anything wrong (p. 16), or that he will be misinterpreted (p. 19 and p. 24). In other words, he is saying he has given his position on that issue and he does not wish to have to repeat it. I do not interpret him to be saying that he wishes the entire interview terminated. On the one point that the officer really wanted an admission, i.e. the use of the snowbrush, [REDACTED] never wavered.

[25] I find [REDACTED]'s will was not overridden by the power of the state. His s. 7 Charter application respecting the December 10, 2003 statement is dismissed.

The December 22/03 Statement

[26] On December 22, 2003, [REDACTED] was charged with sexual assault, sexual exploitation, sexual interference, invitation to touching, incest and threatening. Again, he was interviewed shortly after his daughter gave her statement. She spoke to Const. Steele between 4:27 pm and 5:40 pm. He was interviewed between 6:56 pm and 9:54 pm. He was arrested by Constables Steele and

Crawford at 6:02 pm, transported to the station and placed briefly in a cell before being escorted to the same video equipped interview room in which the earlier interview took place. There was no conversation in the cruiser.

The Voluntariness Issue

[27] I am satisfied there were no threats, promises of favours or coercive conduct by either of the officers who arrested and transported him, nor by the one officer who processed him in the cells area of 12 Division in the presence of Const. Steele. [REDACTED] was given his Charter rights to counsel, to remain silent and not to be influenced to make a statement by any other person in authority to whom he may

have spoken. He spoke to duty counsel in private for nine minutes. He asked for

and was given some water.

[28] Const. Steele again conducted an interview/interrogation generally

using the [REDACTED] Technique theme development method of questioning an accused

person. After starting with and employing a softer, more conversational approach

than on December 10, the officer changes his tone and becomes more aggressive

and accusatory. He tells [REDACTED] that his position "...makes absolutely no sense to me",

(page 53), and "That's not the truth." (page 54), and "Uh, that's ridiculous!" (page

58) and "...Stop all that. That's just, again, that's just bullshit..." (page 58).

[29] Notwithstanding using a more demanding tone and harsher tactics, [REDACTED] adamantly denies any sexual contact or impropriety with his daughter whatsoever. He never waivers, nor makes any inculpatory admissions respecting the sexual offence allegations.

[30] For these reasons and applying the ‘no harm, no foul' approach set out in the Wood and Rybak cases, I find the crown has proven beyond a reasonable doubt the statement made on December 22, 2003 was voluntary. It will be admissible at trial.

The S. 7 Charter Issue

[31] The applicant made no additional submissions to those he made on his s. 7 application respecting the December 10 statement. On December 22 he at no time indicated that he did not wish to make a statement or that he did not wish to continue with the interview.

[32] However, at page 46 of the transcript, Const. Steele introduces a subject not previously raised. He asks [REDACTED] if he knows what DNA is. The officer puts to [REDACTED] the proposition that his DNA would be found in his daughter's underwear, in her bed and her room. It is obvious from [REDACTED]'s ensuing comments and answers that he does not understand the concept or nature of DNA. He assumes his and his daughter's DNA would be the same. He seems to equate DNA with semen. He thinks his and her DNA could get mixed together if their clothes were washed together. In any event, he either generally denies his DNA could be in his daughter's underwear or in her room or he says he has no logical answer for how it could get there. However, some of his answers are equivocal. He says his DNA should not be found in his daughter's underwear but that it could be "...anywhere on her, all over her...". "I wouldn't be able to explain or understand how it got there...", he says. Since he really does not understand the essence of

DNA, it would be unfair to allow his uninformed and possibly damaging comments to be put to the jury or used against him at trial.

[33] There is a further reason the DNA discussion should be excluded. There is no evidence the police have collected [REDACTED]'s DNA from anything or any place. The officer put the proposition of its existence in compromising locations as a tactic designed to draw an inculpatory admission from him. However, the discussion, with the repeated implied assertions that it would be found, could have a prejudicial effect on a jury. In Barges at paragraphs 88 and 97, Glithero J. of the

Ontario Superior Court, raised this issue, commenting that such a tactic could breach an accused's right to remain silent. At paragraph 88 he said that "In many respects this interview breaches and renders meaningless the right to remain silent, if indeed silence by the accused leads to the situation where the prosecution's theory is put before the jury, over and over again, even though there is no

meaningful response by the accused." The danger that arises in this case is that the

probative value of that portion of the interview is low because [REDACTED] makes no

harmful admissions while the prejudicial effect of placing before the jury pages of

unsubstantiated police theory could be very high.

[34] The DNA discussion is a discrete section of the overall interrogation. It will be ordered edited out of the videotape and the transcript.

[35] [REDACTED]'s application to exclude this statement on grounds it breached his s. 7 Charter right to remain silent is dismissed, except for the edited portion, which will not be permitted into evidence.

Result

[36] Both statements are found to be voluntary and neither, save for the edited portion of the December 22 statement, breached [REDACTED]'s s. 7 Charter right to remain silent.