R v ARH, 2021 ABQB 799

Court of Queen’s Bench of Alberta Citation: R v ARH, 2021 ABQB 799 Date: 20211006 Docket: 181048208Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - ARH Accused Restriction on Publication Trial information in Absence of Jury – See the Criminal Code , section 648(1) . Permission having been given to the jurors to separate, information regarding any portion of the trial at which the jury is not present shall not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file. It may be published after the jury retires to consider its verdict. Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Complainant must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Editorial Notice: The restriction on publication ended on February 10, 2023. _______________________________________________________

Reasons for Decision of the Honourable Mr. Justice S.D. Hillier _______________________________________________________ Introduction [ 1 ] The Defence objects to the Crown’s reliance on the Accused’s statement to police as part of the prosecution because it is alleged to be involuntary. [ 2 ] The challenge arises on voir dire in advance of a jury trial where the Accused is charged under ss. 151 and 152 of the Criminal Code .

The allegations relate to his younger cousin and date back to the period from December 29, 2014, to the end of June 2016, when the Complainant was between the ages of 11 and 13. [ 3 ] The statement in issue was provided by the Accused to police in August of 2018 as part of its investigation of the complaint made in May of that year. Of note, Defence takes no issue that the police met the informational and implementational components of their obligations under

section 10 of the Charter in regard to the interview. Crown Evidence [ 4 ] The Crown led evidence of the two officers who took the Accused’s statement, including the lead investigator, Det. Scott Hoogenberg. The videotaped interview was entered as part of the voir dire evidence and I am satisfied the transcript taken from the recording files is accurate. [ 5 ] The interview arose from a request to attend at police headquarters on August 31, 2018, confirmed by the Accused in a phone call with Det.

Hoogenberg three days earlier. [ 6 ] At the station the Accused was arrested, cautioned and advised of his rights without issue. He expressly waived the right to consult counsel.

He was patted down before being taken into the interview area, as to which I attribute a standard safety procedure and not any improper exercise of authority or perceived intimidation. [ 7 ] Both the Accused and the Detective were very courteous and polite throughout the interview; the Accused discussed the significance of his work as a drywaller with his dad’s business; there was no need to build further rapport at the outset of the actual interview. [ 8 ] Although not told of the charges until his arrest, it appears clear that the Accused anticipated the nature of the arrest complaint which his cousin had raised about a year and a half earlier when she was approached by one of his sisters to explain why their young cousin was crying.

From very early in his interview with Det. Hoogenberg, the Accused appeared keen to provide his account to police, which he did uninterrupted. (Transcript ll. 167-193). [ 9 ] The Accused clarified that he did not really know what the Complainant said to his sister Erika (l. 335), but denied that anything happened with the Complainant.

During the family discussion the next day, his mom said there was nothing to worry about, since he is usually not a bad person and has never done anything bad before (ll. 463-464). [ 10 ] In addition to denying that anything sexual occurred with the Complainant, the Accused described her going through a period of seclusion at age seven (l. 227) or around ages three, four or five (ll. 348-357). The Accused and the Complainant’s older brothers never played with her (l. 418; also l. 238) and he tried not to have her sit near him. [ 11 ] Det.

Hoogenberg described the investigation of the Complainant’s allegations of sexual assault from when she was nine until age 13, which police found very compelling and believable (ll.588-667). He then urged the Accused to think about telling the truth as to what happened with his cousin so they could get to the bottom of this. They took about a 12 minute break in the middle of the one hour and 40 minute interview. [ 12 ] Upon Det.

Hoogenberg’s return after the break there was discussion of parts of the story that did not make sense, including when the Complainant became less outgoing and the impact on her of “very influential” family members, quoting the interjection of the Accused (l. 873). [ 13 ] At this point, the Accused leaned forward and was silent for about 20 seconds; then he asked if he could have a second and stared at the floor for another half a minute or so. Speaking softly, he asked what exactly the Complainant had said (l. 927), which Det.

Hoogenberg deferred answering. [ 14 ] From a close review of the videotape, I note that at this point the Accused sighed, paused and then began by stating: Okay. Um, I guess early on things did happen, but it started with like, more of like a butt grab I guess here and there. And from there things ended up escalating. And then from that probably like she ended up telling me to stop. Just like you said she ended up getting

older. And then I realized also that I was doing something wrong. So yeah, if I could take it back, I would (ll. 936-941). [ 15 ] After twenty seconds of silence, the Accused continued: Which is also why I decided to keep my distance from her when things started to like stop. I just decided to give her her space and just rather not interact with her ‘cause I knew what I had done had hurt her, so I just decided to stop that. And then I ended up buying a dog, so I ended up thinking that you know if I wanted a life to be better I might as well change the way I was.

And ‘cause I was younger before I also wasn’t thinking about my future, so I was still in school, still [a high school kid] and all with everything just, it’s just a big, seems like fun, stupid thing that you do as a kid that can ruin someone else’s life (ll. 941-958). [ 16 ] After another pause of about 15 seconds, the Accused asked if there was anything else. He confirmed it was the truth and the following exchange occurred: QUESTION: Well, well thank you for telling me the truth. Um I can tell already by your words by telling me that you knew that you hurt her that you still do love your cousin.

Is that fair for me to say? ARH: Yeah, we’re family. You don’t throw them away just ‘cause of that, but I knew I had to give her space, and I’d probably never have a relationship with her as friends or family again, so I just decided to leave her be. QUESTION: So I can tell you from my experience that, like I said it wasn’t me giving you any you know BS before about ARH: I know. QUESTION: taking ownership for it. That’s truly how I feel and that’s been my experience, that when people can ARH: It’s the right thing to do. She should get her justice. QUESTION: That’s exactly right. That’s exactly right.

And it’s not just you know justice as far as the criminal part of it goes, like in, in the courts and the law and stuff like that. ARH: Mmmhmm. (ll. 962-978) [ 17 ] The Transcript then covers a number of specifics, even though the Accused stated those were “kinda awkward to talk about” (l. 1024). [ 18 ] The interview ended with an explanation of the pending bail hearing. [ 19 ] Det. Hoogenberg responded in cross examination that: a. While he may have said that the Complainant told him points which he found credible, it was not his intention to mislead that he personally conducted the interview that he watched.

He was totally comfortable that the Complainant knew police were watching her statement at the Zebra Centre. Det. Hoogenberg told the Accused that a lot of things he said corroborate and match what the Complainant said, such as telling Erika that something happened, about moving from Ontario to Edmonton and spending time (ll. 677- 683); b. Also, he agreed that her personality changed but the description by the Accused of timing at ages four or five did not accord with her assertion that she was 13 when she started to realize that the things that the Accused was doing to her were not okay (ll. 860-869); c.

Asked numerous times to confirm that he intended to interrogate until the Accused confessed, Det. Hoogenberg stated the interview was the opportunity for the Accused to speak to the allegations. He was encouraged to tell the truth but it was for him to decide what to say; and, d. Although the Detective mis-referenced the age of the Accused as 22 at the time, he was in fact four months short of his 22nd birthday. [ 20 ] Asked to agree that he did not validate what the Accused was saying, Det. Hoogenberg said he continued to ask questions to better understand the responses and gather more information.

Because he did not believe that the story from the Accused was the explanation of what happened with the Complainant, he left the room to allow for the Accused to think about the truth. [ 21 ] Questioned variously about the Reid Technique for interviews, Det. Hoogenberg stated he was not familiar with any specific steps, not trained for and does not use this interviewing method: a. He denied any implication that they would move the interview to the hard room or that the Accused was not cooperating; and, b.

He also disputed any calculated purpose or inference that the questions would stop if the Accused told the truth; in fact, they continued when the Accused did begin talking about his contact with the Complainant. Defence Evidence [ 22 ] The Defence called the Accused and four members of his family, before leading the evidence of a clinical neuropsychologist, Dr. Valerie Massey.

[ 23 ] The testimony of the Accused underscored marginal outcomes in school but that he completed high school following which he has worked with his dad as a drywall taper. He self-described as quiet and shy with a group of close friends from school. He obtained a learner’s permit to drive two years ago but is concerned that he gets distracted easily and does not want to be unsafe or get anxious on busy streets. [ 24 ] Following consultation with Dr. Massey in March 2021, the Accused has been taking medication which has improved his attention and he is working on his public anxiety.

He now reads books for the first time, ventures into the garden, engages with the family and goes out with friends. [ 25 ] The Accused has no criminal record or experience with the justice system although before the August 2018 interview he filled out a witness statement for police that a friend was not involved in a neighbourhood pepper spray complaint. He asks his mom to make phone calls because he prefers to talk in person so he can rely on body language. [ 26 ] The Accused says he saw the Complainant’s family almost every weekend and special events or holidays.

He stated that the Complainant changed when she was about four or five years old, was more on her own, would draw skeletons, dressed in boy’s clothes, and let her unwashed hair hang down covering her face. He recalls this as a clear memory of his childhood because lots of what happened then has stuck. [ 27 ] The Accused also recalls defending his high school girlfriend when the Complainant described her as ugly. He variously recalled the Complainant coming in to watch the boys play video games, being told to leave and that she would come across a room to sit beside the Accused which he thought was strange.

The relevance of this sort of evidence to the issue of voluntariness of his police statement was unclear. [ 28 ] As to the interview itself, the Accused thought he did not need a lawyer to tell his side of the story since the complaint was already known by his family. He told the Detective about his older sister Erika’s conversation with the Complainant at a birthday party, he thinks in January 2017. When the family discussed it the next day, he again denied anything happened and that was the end of the matter. He figured Det.

Hoogenberg was going to listen, give him the benefit of the doubt and believe his words. When that did not happen, he was terrified and thought if he made something up, he would be believed and get out of the room as soon as possible to see his mom. [ 29 ] He fashioned the lies about grabbing the Complainant’s butt and anal sex from what he believed the Complainant told his sister Erika and what he thinks he got from the Detective.

He denied any vaginal sex because he knew the Complainant was not pregnant and he was taught that vaginal sex would be the easiest way to get pregnant. [ 30 ] Asked to describe how he was feeling at this point in the interview, the Accused said he was sick, nervous, anxious and cornered because Det. Hoogenberg did not want to believe him. He declined offers of water or food because he would have thrown up.

He said he admitted to sexual assault because that is what the Detective would believe and if he did not say that, the Detective would keep him there the whole day to question him, which he could not handle. [ 31 ] On cross examination, the Accused explained a number of points linked to his thoughts during the interview: a. he expected the police may want to talk about his cousin but thought initially it was about the pepper spray statement he had given; b. at various points throughout the interview, he finished the sentences or filled in words for Det.

Hoogenberg; c. he knew he was under arrest but thought his denial would be believed; d. when that did not happen, he thought if he told a story that the Detective believed, he would be let go quicker – at least out of the interview room because Det. Hoogenberg was that scary; e. he wanted to have them interview his mom “… pretty much, since both of our stories would have matched anyways.” ( Voir Dire Transcript, p 25, l. 16) [ 32 ] Family members testified that the Accused was seen as shy, a good boy and that his older sisters were a bit protective of him.

He does not drive a car, does not talk much on the phone except to his friends. His mother did not know about unsigned Individualized Program Plans from Grades 4 to 7; she declined to approve special instruction in Grade 8 because she thought he was just lazy. Her son likes to please and lets others win arguments. [ 33 ] One of the sisters testified that she takes medication for an anxiety disorder and PTSD.

She confirmed speaking with the Complainant and telling her brother that the Complainant alleged many instances; but does not recall if she passed on that the Complainant said she asked him many times to stop. The other sister noted that the Accused was a stay at home child, uncomfortable in crowds and avoids confrontation. Asked about nervousness, she noted that the Accused would shake his leg a lot, but not necessarily fidget.

She too noticed the difference after he started taking medication recently. [ 34 ] All four family members confirmed that the Accused told them he said things to police that were untrue and counsel have stipulated the circumstances for the purposes of this voir dire in a supplementary statement prepared by Defence. [ 35 ] As noted, Dr. Massey conducted a neuropsychological assessment of the Accused and prepared an expert opinion report in response to charges “… that will have a significant impact on his future.

This assessment was requested in order to provide information regarding ARH’s personality and presentation. Identification of possible factors that could have contributed to his initial confession and subsequent recanting were also requested.” [ 36 ] I will address this testimony further in my analysis but observe that the purpose as described does not particularly square up

with the role of expert evidence: to assist the Court’s consideration of whether the statement to police was voluntary. [ 37 ] Dr. Massey described that her diagnosis of attention deficit was treated with medication starting in April 2021; this allowed the Accused to better recognize anxiety and she further referred him for counselling in mid-August 2021. [ 38 ] In overview, having met with the Accused and reviewed the police interview as well as other listed material, Dr. Massey emphasized the following points: a.

The Accused now aged 22 reported that he was never diagnosed with an attentional disorder but believes he has Attention Deficit Disorder as he tends to be disorganized and unfocussed; b. School records supported an attention deficit dating back to grades 4 to 7; c. Various tests were administered on which Dr. Massey reported reasonable efforts by the Accused. These results confirmed her own assessment of no dysfunctional impairment but an attention deficit, low average intelligence rating, disorganization and negative response to time pressure; and, d.

From personal interview, the Accused lacked ego strength which may affect his ability to self-advocate. [ 39 ] Dr. Massey also interviewed the family and made cultural generalizations to reinforce her assessment that the parents organize the Accused’s routine, provide him employment in the family business, provide high level of supervision between cousins, and that their son is compliant and somewhat immature. Rebuttal [ 40 ] Crown retained Dr. Therese Chevalier as a clinical neuropsychologist to address the question of voluntariness and respond to the opinion rendered by Dr.

Massey. [ 41 ] In her report and oral evidence Dr. Chevalier confirmed her role to assist and educate the Court in the pursuit of justice and not to assist either side. Again, in general terms I was impacted that her answers in cross examination in particular adhered to that description of her role – which of course is entirely consistent with the case law as enunciated by the SCC in White Burgess Langille Inman v Abbott and Haliburton Co , 2015 SCC 23 and subsequent decisions. [ 42 ] In overview, Dr. Chevalier provided a critique of aspects of Dr.

Massey’s approach and report including: a. test comparisons with unclear normative sampling; b. an absence of literature support for conclusions on discrepant findings for anxiety measured on a Bell curve; c. insufficient information to diagnose generalized anxiety disorder; d. no evidence that attention deficit impaired the Accused outside of school; and e. no information to support any panic attack during the 2018 interview or historically.

Positions of the Parties [ 43 ] Crown argued the following points as supported from the case law, including the four categories or factors set out in R v Oickle , 2000 SCC 38 , that: a. Although the Accused shed some tears, the evidence does not support any overt threats or promises; nor was there anything oppressive or as would constitute an inducement; b. Any motivation for early release or to stop the interview that is self-generated by the Accused does not render his confession inadmissible: Oickle at para 57 ; c.

The evidence of a generalized anxiety disorder with panic attacks was unreliable and, in any event, did not block any understanding by the Accused of what he was saying to police for the record to be used in court. The circumstances are not at all similar to the state of shock of the 14 year old in a four hour late evening interview in R v AYD , 2011 ABQB 356 ; d. Dr. Massey was defensive of her role and evasive under cross-examination.

Her evidence should either be excluded for bias or assigned limited weight in the Court’s assessment of voluntariness. [ 44 ] Defence urged that the evidence supported at least a reasonable doubt that the Accused statement was not voluntary because: a. It was stress-induced by confrontation that the Complainant’s description was very believable, along with a veiled threat of a jail cell; b. Any cost-benefit analysis was irrational because the Accused knew he was giving false information to stop the interrogation and get out of the room; c.

The Accused froze because of a passive compliant personality, living in a protective home environment with attention deficit and

anxiety disorders; he was scared and naïve to the criminal justice system, which is a relevant consideration: R v Tessier, 2020 ABCA 289at para 36, citing R v Engel, 2016 ABCA 48 at para 17; d. Although Dr. Massey did not always express objectivity, she was the only one who met with the Accused and family. She alsoobserved his performance on tests. She diagnosed the long-standing attention deficit and referred him for anxiety counselling. Heropinion is reliable; e.

The subjectively stress-induced confession in this case does not fall afoul of any one of the four factors described in Oickle;nonetheless, the problems affecting voluntariness must be viewed in the totality of all the circumstances. Analysis [45] The circumstances here invoke the common law confessions rule which examines voluntariness, recognizing an importantoverlap with reliability: Oickle at para 47. As such the Crown is obliged to prove beyond a reasonable doubt that the statement to aperson in authority was voluntary: R v Lavallee, 2018 ABCA 328 at para 25, and cases cited therein.

As the Court notes at para 25, thevoluntariness of a statement to police is largely a factual determination which “focuses predominantly on the ability of the accused tomake a meaningful choice whether to confess.” [46] I acknowledge that the personal circumstances of the Accused provide important context to whether his confession can be saidto be voluntary. It is also important to examine not just the format and substance of the interview conducted by Det.

Hoogenberg, but theofficer’s responses to the critique raised during a thorough cross examination. [47] While I have also carefully considered the supplementary evidence, including the opinions provided by Drs. Massey andChevalier, the interview as videotaped needs to be measured by the tests set out in the applicable case law. [48] The reasoning in Oickle underscores that, as a matter of fairness, a confession will not be admissible if it is made undercircumstances that raise a reasonable doubt as to voluntariness because of the overriding concern not to convict the innocent.

The entirecircumstances must be examined, including the impact of a number of factors either alone or in combination: a. threats or promises; b. oppression; c. the operating mind requirement; and, d. police trickery. [49] These four criteria for measuring the interview dynamics must be considered in the context of variable police strategies tofairly elicit a statement without fear or hope which might reasonably overbear the will of the subject.

The factors are not considered inisolation but each of them looks at important components when examining voluntariness, even though the Defence does not argue thatany specific factor applies to this case which counsel ascribes as a stress-compliant confession. [50] On all the evidence, I find no threats or promises to the Accused either real or perceived.

Nothing supports that the will of theAccused was overborne or otherwise detracted from voluntariness in the words or conduct of the Detective during a pre-arrangedmorning interview. [51] I will deal separately with the Accused’s description of his anxiety when Det. Hoogenberg explained why he believed theComplainant and not the Accused.

The Detective specifically explained to the Accused that when the Complainant told the Accused’ssister, no one believed her: “And you got called out for it and you didn’t tell the truth and you were believed, which is why you’re sittinghere right now not telling me the truth thinking that I’m going to believe you ‘cause it worked once already for you” (ll. 905-908). Themessage was blunt but not unfair, coming in the context of an arrest. [52] Similarly, I find nothing to indicate or support that the interview by Det. Hoogenberg engaged any oppression or policetrickery.

It was relatively short with a reasonable break and offers of food and water. Courts have upheld the use of various (obviouslynot all) techniques and styles of interview, including the encouragement of an accused to “come clean” for various personal reasons, suchas alleviating personal burdens and expressing remorse. [53] On whether this last point may constitute an inducement, Iacobucci J recognized in Oickle (para 57) that the existence of aquid pro quo is the “most important consideration” when an inducement is alleged to have been offered by a person in authority.

He didnot hold it to be an exclusive factor, or one determinative of voluntariness but it should be considered. [54] Although not argued by Defence, I specifically find the encouragement for the Accused to come clean and make amends doesnot in the least undermine the voluntariness of the statement here, in the absence of any measurable quid pro quo. I note in particular thetone and body language captured in the recording and will return to this aspect in addressing the evidence of anxiety and panic attack. [55] The Defence concedes that the operating mind requirement has been met as interpreted by the case law.

The Accusedunderstood what he was saying to police and that it may be used in court on these charges. From a full review, the circumstances do notsupport any finding that the Accused lacked “sufficient cognitive capacity to understand what he or she is saying and what is said”: R vWhittle, (SCC), [1994] 2 SCR 914 at para 50. [56] Having addressed the four factors, these findings remain part of the overall context of the Court’s consideration of the specificargument raised by Defence.

As reviewed, the overall theory behind the defence objection is that there is a reasonable doubt as tovoluntariness based on an overriding fear of the interview and a sense that the only way for the Accused to terminate was to admit what

the Detective believed to be true. [ 57 ] Defence ascribed in argument that the circumstances here fall within the “stress-compliant” category reviewed in Oickle at para 38 , as derived from an

article by RJ Ofshe & RA Leo titled, “The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions” (1997) 16 Stud L Pol & Soc 189. At para 38, the Court in Oickle notes: According to Ofshe and Leo (1997), supra , at p 211, stress-compliant confessions occur “when the aversive interpersonal pressures of interrogation become so intolerable that [suspects] comply in order to terminate questioning”.

They are elicited by “exceptionally strong use of the aversive stressors typically present in interrogations”, and are “given knowingly in order to escape the punishing experience of interrogation” … [ 58 ] I have excluded the reference in Oickle to use of fabricated evidence, which has no applicability here but is informative of the strength of adverse stressors contemplated. [ 59 ] To restate the position of Defence, vulnerability of this Accused to a stress-compliant confession is based on a combination of factors: a. meek compliant character, in a protected home environment; b. lack of exposure to the criminal justice system; c. undiagnosed attention deficit and anxiety disorders; and, d. a freeze response when the Accused’s explanation is not accepted. [ 60 ] The argument presents a curious modification of operating mind, the essence of which has been summarized earlier in overview of Dr.

Massey’s testimony. Since the Defence relies heavily on that opinion it is important to examine the extent to which it assists the Court’s responsibility in assessing all the evidence presented, sensitive to the peculiarities of the individual from whom the statement is taken. Expert Opinions [ 61 ] As with all expert evidence, the Court must first address the gatekeeper stage derived from the Mohan factors. Professor Dufraimont, in commentary on White Burgess , assembled a useful

summary from her review of the case at paras 17-24 and 54. After applying the threshold test for expert evidence, the Court must then weigh the benefits of admitting the evidence against the potential risks by re-evaluating the following factors: a. relevance, b. necessity c. reliability, and d. absence of bias. [ 62 ] During the hearing, Crown did not take issue with Dr. Massey being qualified as an expert in clinical neuropsychology. Nor is there any dispute that the Court may be assisted by expert evidence as to impairment which may relate to the voluntary nature of a proffered confession.

It may be an overstatement to find that the expert opinion evidence was necessary; however, I appreciate its importance to the position of the Defence on this serious indictment. [ 63 ] So too, although the science behind attention deficits and anxiety appears to be an open area of study, I am prepared to consider the potential relevance, particularly in the context of the right of the Accused to make full answer and defence. [ 64 ] From a review of Dr.

Massey’s evidence, the Crown invited the Court to exclude or at minimum place limited weight on the opinions she has expressed based on bias, foundational frailties and general concerns with the way the report was generated. [ 65 ] I am not prepared to exclude Dr. Massey’s opinions in voir dire on the basis of bias, particularly given the onus on the Crown to prove voluntariness beyond a reasonable doubt. Despite significant concerns, the flaws in Dr. Massey’s evidence are matters of weight and not threshold admissibility. [ 66 ] As earlier summarized, Dr.

Massey’s opinion purports to raise a reasonable doubt as to voluntariness based, in part, on undiagnosed attention deficit. It was somewhat problematic that the Report (p. 2) does not really explain how the Accused “...believes that he has Attention Deficit Disorder as he tends to be disorganized and unfocussed.” That is a significant self-assessment to be based on non-specific characteristics for someone in his twenties. Nonetheless, I accept that the Accused may well have attention deficit, at least in an educational context.

Although no longer attending school, he appears to have responded to recent medication. [ 67 ] I also acknowledge that the Accused reported to Dr. Massey with anxiety, particularly in the context of facing criminal charges since August of 2018. Testing and analysis on this second component was more subjective than attention deficit. [ 68 ] In all events, as to the links of these conditions to the matter of whether his statement was voluntary, it is my considered view that many of the points raised by Dr. Massey are underwhelming.

Her opinions remained quite positional even in the face of important points that she marginalized with limited explanation including:

a. The Accused was over 21 ½ at the time of police interview; b. He and his family, including his mother who drove him to the appointment, knew of the allegations for about one-and-a-half years; c. He came into the police interview prepared/wanting to say something; d. He tracked the entire discussion and engaged with Det. Hoogenberg, including to insert appropriate words into the officer’s sentences a number of times and to clarify terms with appropriate understanding; e.

The interview was pre-arranged for a convenient time, was not remarkable in length, included a break and offers of food and water, and was respectful. [ 69 ] I was also concerned that during exam in chief, Dr. Massey was asked to explain the results on the Personality Assessment Inventory (PAI) which showed average results for stress and a likelihood the Accused would remain calm under fire. Her response that she thought at that point he was already on ADD medication is inaccurate and misleading: the referral letter to his physician for a prescription was only prepared after that second appointment April 8, 2021.

In addition, nothing correlates ADD medication with treatment for stress or anxiety, concerns that were only assessed for treatment later in August. The further comment that the Accused was comfortable and unafraid in her office on its face would undermine the utility of this testing. [ 70 ] Dr. Massey expressed various concerns which did not appear supported from a full review of the police interview: a. The Accused did not express any query or angst to the Detective about holding up his mother; in fact, he wondered if she would be interviewed.

Near the very end, he said she had parking until 10:30 a.m., which is about when the interview ended. Although the Accused still needed to attend a bail hearing, he was told that his mother would be advised to go home; b. The reference to using the interview room to be comfortable and not a jail cell as a “not subtle threat” that would invoke a choice of flight, fight or freeze was overstated and unhelpful. As reflected in the video, the Accused was given time to think and decide whether to say more in the face of the Detective disclosing that the Complainant was credible; c. Dr.

Massey did not critique the pat down or the officer’s reference that he did not feel the need to use hand cuffs based on continued cooperation as any sort of threat that inhibited the Accused; and, d. Her description that the Accused can be seen to have an incredibly still demeanor as a basic freeze response when the Detective came back is not supported by the video: i. Having been told that the Complainant gave details and was in his own words “very believable”, the Accused was given time alone to consider the truth of what actually happened; ii.

During the 12 minute break, he looked around, stretched his neck, leaned forward, looked at his watch four times and played with his bracelet; iii. When Det. Hoogenberg came back, the Accused did slump back as Dr. Massey noted but he then confirmed he was not going home, asked what parts don’t make sense, mentioned the recording and participated in further dialogue, including his reference to an older family member as “very influential” to a young person; iv. Importantly, before talking further, he paused more than once, appearing to gather his thoughts.

He stopped slumping, leaned forward, looked up at the camera then stared down; he sniffed, sighed, asked what the Complainant said and started talking. He was uninterrupted and took at least two more pauses of about 15 seconds; v. The fact that he cried while asked about specific actions, as emphasized by Dr. Massey, is entirely understandable. As he said himself: “…good to talk about it but at the same time, you know, like I just ruined my own life for something stupid that I did.” (ll. 1422-23) [ 71 ] Dr.

Massey provided no psychological analysis of a number of additional points expressed by the Accused while he was allegedly frozen in a panic attack and wanted to leave as soon as possible: a. He said he avoided the Complainant as he was “kind of ashamed” and “ended up seeing that what I had done affected her.” (ll. 1245- 58) b. His “message” to the Complainant used very direct and forthright language. (ll. 1263-1265). c.

Similarly, he proffered an explanation that the Complainant always liked to be close and “… I guess that just kinda pointed me in her direction.” (ll. 1292-1294) [ 72 ] These answers are not logically consistent with Dr. Massey’s description of a reptilian brain that has shut off the rational thinking processes. Nor does she explain why she accepted his self-report that when he confessed he turned into a little kid, just wanted to go home to his mom and dogs and did not know what to do. That was not his evidence on voir dire .

He confirmed awareness that he was not going home; he testified under oath that he just wanted out of the interview because the detective did not believe his story and was scary. At one point in his testimony, he did refer to his mom as usually his source of comfort. [ 73 ] I remain concerned that much of Dr. Massey’s opinion was conclusory, based on self-report and dismissive of the content of the statement itself.

Her assessment was conducted more than two-and-a-half years after the police interview and two years after the Preliminary Inquiry with a jury trial set for September. [ 74 ] Recognizing that this very experienced neuropsychologist was retained to provide “possible reasons that ARH would confess and subsequently recant his confession…” the opinions expressed were not particularly helpful to the Court, as distinct from the

advocacy of the Accused. [ 75 ] Looking first at the matter of attention deficit, it is surprising that Dr. Massey sustained her references to the DSM-4 and the former terminology of ADD rather than the DSM-5 term of ADHD in place for more than seven years now. However, accepting the probability, or at minimum some likelihood, that the Accused does have an attention deficit disorder in some context, no evidence nor reasoning described such a condition as a factor which may jeopardize voluntariness. [ 76 ] Dr.

Massey nonetheless posited that attention deficit remains part of the package along with low ego strength and a sense of inadequacy, which she seemed to include as part of deference to authority. From my review of the totality of the circumstances including the video, it is entirely available for a fact finder to assess that the Accused did not demonstrate any such impediments in his interactions with the Detective. It is notable that the Accused does not describe such feelings of inadequacy or deference when confronted with information that the Complainant gave compelling details.

Rather, he testified that he was scared and searched for a different explanation or account that would end the interview. Was that anxiety or panic? [ 77 ] Dr. Massey states that the Accused was vulnerable to both anxiety and panic in a dissociative or introverted fashion which she said was demonstrated after the break in the interview.

She reached this judgment, not from testing (see PAI above) but from his self- report, her clinical observations and her own viewing of the video. [ 78 ] Although the referral letters to other professionals make some reference to low mood and elevated anxiety, that is not the same as an anxiety disorder with panic attack. Dr. Massey acknowledged those diagnoses were not included in those letters but emphasized that she was not driving the therapy or treatment for the Accused.

Her expectation that the patient would somehow convey these concerns to other professionals for further assessment or treatment is unexplained and does nothing to enhance the reliability of her clinical diagnosis. [ 79 ] Dr. Massey stated that she did not consider whether the anxiety of the Accused may have arisen from guilt and fear about what he did, because she said he had a history of anxiety, personally and within his family.

This categorical response is difficult to reconcile with the results of her assessment in May 2021 which stated that anxiety was not clinically elevated at that time. [ 80 ] Again, from the totality of the circumstances including the video, it is entirely available for a fact finder to assess the extent to which the Accused experienced anxiety or panic in his interactions with the Detective. [ 81 ] On the matter of voluntariness, the Crown’s expert Dr.

Chevalier both expressed and fulfilled her role, not as an advocate but, quoting from her report, “…to assist and educate the court in the pursuit of justice.” [ 82 ] Having maintained significant objectivity in responding to various questions, the opinions expressed by Dr. Chevalier have aided the Court’s considerations. Although many items appear grounded in common sense observation, she underscored the following points from the police interview: a. The Accused initially presented a casual tone of confidence and asked if he could speak; b.

He acknowledged he was being monitored and a record kept of the interview; c. He provided a remarkably detailed history of his cousin’s social development from age three or so; d. He knew the Detective’s role with Child Protection and several times completed sentences with an appropriate word or phrase; e. He asked questions for clarification and asked for time before giving his statement with undisturbed pauses; and, f. He asked if he could use the bathroom as the interview was finishing. [ 83 ] In addition, Dr.

Chevalier’s report noted “…no significant fluctuations or changes in his presentation that would suggest problematic physical symptomology such as heart palpitations, shortness of breath, feelings of choking, chest pain or discomfort, nausea or abdominal distress, dizziness, chills or heat sensations, paresthesias, derealisation, or fear of losing control.” Logically many of these may not show on the camera.

However, nothing in his outward affect seemed to change, except that he talked more quietly and began to get teary when asked about details. [ 84 ] The contrast between the two experts in providing tools for the Court to assess proof of voluntariness was stark. I recognize the differences in their background but accept that both had appropriate qualifications and experience as clinical neuropsychologists. They have testified as experts in other court proceedings, including at the Queen’s Bench level. In general, I found the input of Dr.

Chevalier of much greater assistance on the specific issue of voluntariness. [ 85 ] There were additional aspects of the police statement which informed my assessment of whether it was provided voluntarily: a. As to the assertion by Dr. Massey that the Accused could not handle open questions such as “why”, I have identified the following exchange as a powerful contradiction that discloses no hints of compelled fabrication: QUESTION: So what was it about [the Complainant] that made her the person that you decided to do this stuff with?

ARH: Like we were sort of close I guess as kids, like she ended up distancing herself and then she always had this, I don’t know if it was an attraction or something, but she always liked to be close to me like I mentioned earlier and I guess that just kinda pointed me in her direction. (ll. 1288-1294) b. As earlier quoted (para 16), the spontaneous interruption by the Accused to state that the Complainant should get her justice does

not reflect involuntariness or fear. c. Finally, I note that the end of the video captures a question from the Accused at a point when, according to his recent testimony in this hearing, he just wanted to get out of the room and was afraid of the Detective. He asked in a largely positive tone whether Det. Hoogenberg was going to be at the bail hearing (l. 1479). Having just acknowledged that talking about it is good but he just ruined his life for something stupid he did, this question does not speak to an urgency to escape the room and end the discussion with Det.

Hoogenberg. [ 86 ] I return then to consider the overall assessment of whether the Crown has established beyond a reasonable doubt that the Accused’s confession was voluntary in the face of his personal circumstances, including a history of attention deficit and anxiety. [ 87 ] The individual characteristics of the Accused do not materially distinguish his circumstances from many others in similar circumstances who may be motivated to terminate questioning.

As summarized in Oickle at para 57 , citing from R v Rennie (1981), 74 Cr App R 207 (CA) at 212 : “...There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.” [ 88 ] Oickle also reinforces, at para 33 , that there are two objectives in the analysis of voluntariness which inform the measure of fairness.

In addition to the interests of accused persons, it also engages the interests of society that investigators properly and effectively seek to resolve cases. Det. Hoogenberg shared the voice of the Complainant with the Accused and invited him to respond. The decision to speak to that invitation, after a period of reflection and the pauses as he requested, was an open choice of the Accused. Having been thanked for telling the truth, it was his further choice whether to share further details.

He chose to characterize the Complainant as family and also to express that she was entitled to her justice. [ 89 ] I find nothing in the interview to support that the Accused blanked out as he described, that he could not keep a steady thought train going (“dissociative” to use Dr. Massey’s term) or that otherwise distorted the voluntariness of his confession. Conclusion [ 90 ] I do not find any trickery or material misleading of the Accused in any aspect of the statement given to Det. Hoogenberg.

There were no inducements or harsh circumstances that overbore his will. [ 91 ] Nor does the evidence present a reasonable doubt about voluntariness predicated on any combination of attention deficit, anxiety and panic taken in the context of: a passive, compliant and immature personality in a protected home environment; a naivety to the criminal justice system; and an alleged freeze response motivated by a fearful desire to terminate the interview. [ 92 ] The Accused took an active role, was eager to provide his initial account, and tracked the conversation with his own insertions.

After a break and further dialogue, he requested and took time to think before he expressed a number of specific points. It is for the finders of fact to assess the weight and reliability, including whether those points derived from his own knowledge, as distinct from any discussion with Erika or from earlier references by Det. Hoogenberg during the interview. [ 93 ] The Court has determined that the Accused’s statement, given to Det. Hoogenberg, arose from his meaningful choice to confess and was voluntary.

Its admissibility does not preclude the Defence from presenting evidence to the Jury as finders of fact as to how much weight should be attached to the statement in the context of the case as a whole. [ 94 ] The Jury will be instructed that: a. The police statement is part of the evidence to be considered by them in deciding both credibility and reliability of the evidence overall; b. The police statement does not modify in any way the legal burden on the Crown to prove its case beyond a reasonable doubt; and, c.

Overall the interview with police is part of the evidence to be assessed by them as fact finders, including the circumstances of recantation. Heard on the 13 th to 20 th days of September, 2021. Dated at the City of Edmonton, Alberta this 6 th day of October, 2021 . S.D. Hillier J.C.Q.B.A. Appearances:

Anders Quist for the Crown Christopher Luchak for the Accused