R v Simpson, 2018 ABQB 1025

Court of Queen’s Bench of Alberta Citation: R v Simpson, 2018 ABQB 1025 Date: 20181217 Docket: 171232556Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Levi Hubert Simpson Accused Restriction on Publication The evidence and submissions presented on this Voir Dire , and these Reasons for Judgment, are subject to a Publication Ban.

It is ordered that no person publish any information contained in any of them until the conclusion of the trial in these proceedings unless otherwise ordered by the Court. _______________________________________________________ Reasons for Judgment on Voir Dire of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Levi Simpson is charged with the robbery and second degree murder of Christopher Giroux at Edmonton on September 24, 2016.

His judge and jury trial is scheduled to begin on January 14, 2019. [ 2 ] In a voir dire the Crown seeks a ruling that video recorded statements made by Mr. Simpson to the police are admissible. There are three statements. The first was made on September 25, 2016 when Mr. Simpson was interviewed by police as a witness. The second was made on September 30, 2016 after Mr. Simpson had been charged. The third was made on November 1, 2016 when Mr. Simpson asked the investigators to come to the Edmonton Remand Centre where he was being held, to interview him again. [ 3 ] Mr.

Simpson acknowledges that the third statement, made on November 1, 2016 at the ERC was voluntary and is admissible. Given that acknowledgement the third statement was not shown in the voir dire . I have not seen it.

[ 4 ] The Crown seeks to have the admissibility of the first statement determined in order that it will be available for cross- examination should Mr. Simpson testify at his trial. The Crown does not intend to offer that statement as part of its case. Mr. Simpson disputes the voluntariness of that statement. [ 5 ] The Crown seeks to have the admissibility of the statement made on September 30, 2016, determined so that it can be offered in evidence as part of the Crown’s case, if the Crown elects to offer it as part of the Crown case.

At the time of the voir dire the Crown wished to “keep its options open” as to whether to offer the second statement in evidence or to simply have it available for use in cross-examination should Mr. Simpson testify at trial. Mr. Simpson disputes the voluntariness of that statement. [ 6 ] Voluntariness of the two statements is the only issue. Mr. Simpson does not allege that any violation of his Charter rights renders either statement inadmissible.

The Events Giving Rise to the Charges [ 7 ] On September 25, 2016, shortly after midnight, police responded to a report of a male in significant distress on the street near downtown Edmonton. The first officers to attend at the scene found Christopher Giroux, naked and bleeding, lying on the sidewalk. EMS attended and took Mr. Giroux to hospital where he died of his wounds. Meanwhile, the police followed a trail of blood from the place where Mr.

Giroux had been lying to a nearby walk up apartment and inside the apartment building to the door of an apartment on the third floor. [ 8 ] The police tactical unit consisting of about six to eight police officers attended at the door of the apartment. When they announced their presence and instructed anyone in the apartment to come out with their hands up and empty, there was no response. The tactical unit broke the door and entered the apartment. Inside they found three people, a woman in a hall closet, and Mr. Simpson and a second woman in bed in a bedroom. Police handcuffed Mr. Simpson.

He struggled with the police officer who was trying to put the handcuffs on him. That officer testified that the struggle was not significant. [ 9 ] Mr. Simpson was escorted to a police wagon where he was lodged in the “cell unit” in the back of the wagon. The officer who had custody of him was instructed that Mr. Simpson was to be treated as a witness not as an arrested person. He asked Mr. Simpson if he would agree to attend at police headquarters to be interviewed in connection with the incident. The police officer interpreted his response as agreement. Mr.

Simpson remained in handcuffs and in the “cell unit” during transport to police headquarters. [ 10 ] On arrival at police headquarters shortly after 2 a.m., the two officers who had charge of Mr. Simpson removed him from the “cell unit” in the back of the police wagon and took him to the second floor atrium of the headquarters building. He was not taken to the part of the building where persons who have been arrested are taken – the police cell area. [ 11 ] In the atrium area he waited with the two officers until a homicide detective was available to interview him. Mr.

Simpson lay on a bench or couch and appeared to sleep. [ 12 ] At about 3:30 a.m., a homicide detective came and with one of the officers accompanied Mr. Simpson to the third floor of police headquarters where at 3:39 a.m. he was placed in a “soft” interview room. Police use “soft” interview rooms when interviewing people who have not been arrested. They are distinguished from “hard” interview rooms which are slightly less comfortably furnished and are used for the interviews of people who have been arrested. [ 13 ] The officer was instructed to sit in the hall outside the interview room and ensure that Mr.

Simpson did not leave. A few minutes after he was left in the room, the Detective returned and gave him a can of Coke and a bag of chips and left again. On the video it appears that Mr. Simpson immediately went to sleep, seated on the couch. The Detective returned a few minutes later and woke Mr. Simpson up. The Detective attempted to engage him in conversation but Mr. Simpson continued to nod off. He was unable to stay awake. The Detective left him alone at 3:46 a.m. He slept until about 6:40 a.m. He then opened the can of Coke and nodded off as he held it.

It fell to the floor and some of its contents spilled onto the carpet in front of the couch. Mr. Simpson resumed sleeping. Having observed the stain on the carpet, the Detective called EMS to attend to Mr. Simpson to ensure that he was alright. EMS personnel attended on him at 7:17 a.m., examined him, and concluded that he was not in any medical distress. Mr. Simpson resumed sleeping until 7:55 when Det. Mora entered the interview room. T he First Statement – September 25, 2016 [ 14 ] Det. Mora interviewed Mr. Simpson from 7:55 a.m. to 9:32 a.m.

The interview was video recorded and the video was played in the voir dire. [ 15 ] When she entered the room Det. Mora woke Mr. Simpson and gave him another Coke and a snack bar. She told him that she wanted to ask him about the events of the night before and proceeded to do so. [ 16 ] It is clear in the transcript and in the video that Mr. Simpson’s condition had very significantly improved from what it had been four hours earlier when he was placed in the interview room. At that point he could not stay awake for more than a few seconds. At the commencement of Det.

Mora’s time with him, however, he awoke, stayed awake and responded sensibly to her questions. [ 17 ] During the course of the interview he nodded off at least twice but he awoke quickly when Det. Mora spoke to him. He said that he had last taken methamphetamine the day before. He rambled on about subjects which he introduced into the conversation, in particular, how it came about that he was homeless, the ending of his relationship with his former girlfriend, and the honesty of police officers. He was clear that he did not want to answer some of Det.

Mora’s questions because he did not want to be seen as a “rat”. [ 18 ] Mr. McClean submitted that because of the treatment Mr. Simpson received from police prior to the commencement of the

interview (the handcuffing, the transport in a paddy wagon, the constant monitoring by police officers), the voluntariness of his participation in the interview is suspect. He also submitted that his nodding off and his deviation onto subjects only very remotely related to the subject of the interview, and the occasional mumbled nature of his speech, raised a reasonable doubt as to his physical and mental capacity to engage in the interview at the time.

He submitted that these circumstances give rise to a reasonable doubt as to whether his statement was the product of an operating mind and therefore a reasonable doubt as to whether it was voluntary. [ 19 ] Having reviewed the transcript and the video both during the voir dire and after, I have no doubt that Mr. Simpson’s mind was not in any sense impaired or otherwise not operating when he gave the statement.

I also have no doubt that whatever happened before the commencement of the interview, it did not affect the voluntariness of the statement. [ 20 ] I rule that the statement was entirely voluntarily and is admissible. The Second Statement – September 30, 2016 [ 21 ] Mr. Simpson was arrested on September 29, 2016. He was interviewed by Det. Maureen Mora on September 30, 2016 beginning at 10:09 a.m. and ending at 1:46 p.m. The interview was video recorded and the video was presented in the voir dire. [ 22 ] The Crown called evidence as to the dealings between various police officers and Mr.

Simpson from the moment of his arrest to the commencement of the interview. This included the evidence of the Detective who advised him of the charges against him, ensured that he understood the charges and facilitated his contact with a lawyer. Mr. Simpson does not allege that anything relevant to the voir dire issue arose from those dealings. [ 23 ] At the outset of the interview, Det. Mora advised Mr. Simpson that based on the information police had developed since the first interview, the police believed he had murdered Mr. Giroux and therefore he was being charged with murder.

She indicated that her purpose in the interview was not to find out whether he had committed the murder, because the police already knew that he had committed it, but rather, to find out why he had committed the murder. She had brought a lap top computer into the interview room and had several photographs and other materials. She said she wanted to show some of it to Mr. Simpson. [ 24 ] She began by advising Mr. Simpson that police had spoken to a member of the staff of the Boyle Street Coop who told them that Mr.

Simpson had come to see him after September 25 and had told the staff member that he had committed the murder. Mr. Simpson had told the staff member that he was concerned that criminal elements might blame and take retribution against someone else. Det. Mora showed Mr. Simpson security video which police had obtained from the Boyle Street Coop. It showed Mr. Simpson meeting with the staff member. [ 25 ] Det. Mora also showed Mr. Simpson part of a video recorded police interview of the staff member. It was in that interview that the staff member told police that Mr. Simpson had confessed to the murder. [ 26 ] Det.

Mora also told Mr. Simpson that police had been informed that when he was not under the influence of drugs, Mr. Simpson was a reasonable, conscientious, and spiritual person – the type of person who would want to take responsibility for what he had done. [ 27 ] At that point, and throughout the first two and a half hours of the interview, Mr. Simpson did not give Det. Mora any information about the central circumstances of the violence against Mr. Giroux.

He went so far as to acknowledge his presence in the apartment that day and in the days preceding the violence, gave some information as to what he had been doing in that time, but he avoided saying anything of central significance. [ 28 ] Rather, throughout those two and a half hours, he asked to see more of the product of the police investigation than Det. Mora had intended to show him. He wanted to see the full video recording of the interviews of which Det. Mora had shown him only parts. He said he would give her his information after he had seen more of the product of the police investigation. Det.

Mora accommodated this request to a point. But when she had shown him everything she was willing to show, and he still wanted to see the videos of the interviews of two further witnesses, she refused. She suggested to him that she did not believe that he would answer her questions even after seeing the further videos. [ 29 ] At that point, which was about two hours into the interview, this exchange occurred: Det. Mora: You know quid pro quo? You know what quit pro quo is? Mr. Simpson: No. Det. Mora: You give a little to get a little. . . . Det.

Mora: But you haven’t stood up to your word which is funny ‘cause the people at the Boyle tell us you do. That you’re, have character.

[ 30 ] Thereafter, as I interpret the content of the interview, Mr. Simpson twice attempted to “give a little” information, but what he said did not relate to his involvement in the violence that resulted in Mr. Giroux’s death. Having provided that information he again asked to see the video of the interview with two witnesses which had not been shown to him. Det. Mora refused on the basis that he had not kept his word – he had not told her anything of central significance. [ 31 ] About two and a half hours into the interview, Mr.

Simpson began to discuss how it came about that he was in the room where and when the violence that resulted in Mr. Giroux’s death occurred. Having stated that he was in the room, he made a further request to see the videos of the police interviews of other persons who had been in the apartment. This exchange occurred: Mr. Simpson: Like I said can we see Krystal’s [interview] now? Det. Mora: Krystal doesn’t say . . . Mr. Simpson: Her Det. Mora: anything. Mr. Simpson: How about Joe? Det. Mora: No. This is from the cell, listen, from texting that weekend. [Det.

Mora points to a document on the desk which, I assume, is a transcript of text messages. Mr. Simpson does not look at the document.] Mr. Simpson: How, how can I prevent myself from like these charges? Even though I didn’t know anything that was taking place? Even though I was told to go in there and I was scared. [my emphasis] Det. Mora: Mmmhmm. [On the video this response is in the nature of “I understand what you are saying”. It is not in the nature of an answer to his question.] Mr. Simpson: I was really scarred because of her. Det. Moral: Mmmhmm. [This response is also in the nature of “I understand”] Mr.

Simpson: ‘cause all those guys, like every time she said something they would jump up. Det. Mora: Mmm. Mr. Simpson: Jump up no questions, even the girls. Det. Mora: So what happens when you get in the room? You’re, you say you’re afraid that you’re gonna be the one that gets Mr. Simpson: Killed. Det. Mora: killed. What happens?

Mr. Simpson: sh, she said come here, she said put this on, and I start putting on uh these masks on, whatever it has . . . on them. Det. Mora: Yeah. So you Mr. Simpson: . . . Put this on Det. Mora: put one on, she puts one on, who else puts one on? Mr. Simpson: But before I say anything, what’s gonna go on? Am I still gonna get charged? Det. Mora: Mmmhmm. [This response when seen on the video is clearly an affirmative response – “Yes you are still gonna get charged.” In addition to the “Mmmhmm”, Det. Mora nods her head in the affirmative.] Mr. Simpson: Why is that? Det. Mora: Because we know you were there Levi.

Mr. Simpson: What happened if I Det. Mora: We know, Mr. Simpson: didn’t do anything? Det. Mora: we know you’ve confessed to this, we know you’ve confessed to, Mr. Simpson: What happened if I didn’t do anything? Det. Mora: to doing this. Well tell us what you did. Mr. Simpson: I’ll tell you what I did. . . . [ 32 ] Following this exchange, Mr. Simpson went on to detail the events that took place and his

part in them. After Mr. Simpson had described the centrally significant events for several minutes, this exchange occurred: Mr. Simpson: . . . that’s why I wanna get my name out of this, Det. Mora: Mmmhmm. Mr. Simpson: that’s why I’m telling you, and that’s why I’m confess, con, I’m telling you

Det. Mora: Mmmhmm. Mr. Simpson: everything that fuck, Det. Mora: and I thank you for that, Levi. Mr. Simpson: what happened. [33] Mr. Simpson then continued to discuss the centrally significant events for several more minutes. In the statement he indicatedthat he was not the principal aggressor. Indeed any aggression on his part had been largely faked in order that he would appear to do asthe others wanted or expected. Another or others had actually inflicted the injuries which resulted in Mr. Giroux’s death. Det. Moraindicated that she did not believe him and explained why.

Near the conclusion of the interview, when Mr. Simpson asked what wouldhappen thereafter, she confirmed that he would have a bail hearing and that the charges against him would stand. [34] Mr. McClean submitted that it has not been shown beyond a reasonable doubt that Mr. Simpson’s statement was voluntary. He observed that in the first two hours of the interview it became clear that Mr. Simpson and Det. Mora were engaged in a bargainingprocess. The bargain was that Det. Mora would show Mr. Simpson the product of the police investigation to that point and in exchangeMr. Simpson would answer her questions.

During the interview Det. Mora even used the language of bargaining to describe what wasgoing on – quid pro quo. [35] However, if there was a bargain, both took the position that it had not been carried out. Each blamed the other for havingbreached the terms of the bargain. Det. Mora confirmed that the bargain was no longer extant. [36] Then, Mr. McClean submits, in the exchange quoted at para. 31 above, and in particular, the passage which I have put in boldfont, Mr. Simpson proposed a new bargain. The first round of bargaining had failed, but Mr. Simpson launched a second round and Det.Mora participated.

In this proposed bargain, Mr. Simpson would answer Det. Mora’s question in exchange for her possibly cancellingthe charges against him. Det. Mora did not reject the proposal. She said “Mmmhmm” which, it can reasonably be inferred, Mr. Simpsontook as agreement since he proceeded to tell her what happened. [37] Mr. McClean submits that it cannot be concluded beyond a reasonable doubt, that Det. Mora’s tacit agreement was not animproper inducement. He submits that it amounted to a promise of benefit and as a result, Mr. Simpson’s will was overborne renderinghis statement involuntary.

R v Oikle, 2000 SCC 38 , [2000] 2 S.C.R. 3 at para 57. [38] I do not agree that Mr. McClean’s submission correctly characterizes the situation. I have carefully reviewed the transcript ofthe interview and I have watched the video of the relevant portion several times. I am satisfied, beyond a reasonable doubt, that Mr.Simpson did not understand Det. Mora’s nonverbal response to his question, “How can I prevent myself from these charges” to be a tacitpromise that if he told her what happened, there was a possibility the charges against him would be cancelled.

Indeed within sentences ofhis having asked the question, Det. Mora clearly confirmed, albeit by a “Mmmhmm” and a nod, that the charges against him would notbe cancelled. It is clear that Mr. Simpson understood that response to be a rejection of his proposal. [39] I acknowledge that in the last exchange in the passage quoted in para 31 above, when Mr. Simpson asked if he would becharged if he didn’t do anything and Det. Mora responded, “Well, tell us what you did”, Mr. Simpson may have concluded that hissituation in relation to getting the charges cancelled was not hopeless.

He may have concluded that there was a possibility that if thestatement he made showed that he had not caused the injuries which resulted in Mr. Giroux’s death, the charges might be cancelled. ButI am satisfied, beyond a reasonable doubt that if he did so conclude, it was not the result of any promise or inducement made to him byDet. Mora. [40] For over two hours, Mr. Simpson had resolutely avoided giving Det. Mora any significant information while he insisted thathe be shown the product of the police investigation.

The video and transcript of that two hours show that he was very strong willed andable to resist the pressure (none of which was improper) exerted by Det. Mora. In the exchange to which Mr. McClean points, if he wasattempting to extract a promise from Det. Mora, he did not succeed. In my view, the statement he made thereafter was, beyond areasonable doubt, voluntary. [41] My ruling that the statement is admissible, however, is subject to a qualification. Though Counsel did not address the issue, Iam not certain that the statement can be presented to the jury in the form it was presented in the voir dire.

Editing may be required. Iexpect that the passages where the other police interviews are played for Mr. Simpson should not be heard by the jury. Further, I am notcertain that references to Mr. Simpson’s criminal history, passages where Det. Mora states that Mr. Simpson has confessed to the killingin another context, and passages where Det. Mora states that she does not believe the statement Mr. Simpson made to her and says why,should be presented to the jury. I invite counsel to discuss these points with each other prior to trial and to advise if a further ruling isrequired. Heard on December 4 to 7, 2018.

Dated at the City of Edmonton, Alberta this 17th day of December, 2018.

B.R. Burrows J.C.Q.B.A. Appearances: Aaron Pegg for the Crown Lance A. McClean for the Accused