R v Gagnon, 2021 ABQB 94

Editorial Notice: The Restriction on Publication ended March 26, 2021 Court of Queen’s Bench of Alberta Citation: R v Gagnon, 2021 ABQB 94 Date: 20210208 Docket: 1902096119Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Darren James Gagnon Accused Restriction on Publication Subject to further order, the publication of this Ruling is prohibited until the end of the trial. See paragraph [130] below. _______________________________________________________ Ruling on Voir Dire of the Honourable Mr. Justice B.R.

Burrows _______________________________________________________ [ 1 ] Darren James Gagnon is charged with causing the death of Phoenix Pidgeon, a six-month old baby, on July 5, 2016, thereby committing second degree murder contrary to CC s. 235(1). [ 2 ] On February 6, 2018, Mr. Gagnon was interviewed by Detective Dan Furman of the Edmonton Police Service. The interview went on for approximately 5 hours. Near its conclusion, Mr. Gagnon made an inculpatory statement. The Crown seeks a ruling that the statement will be admissible in evidence at Mr. Gagnon’s trial currently scheduled for April, 2021.

In order for the statement to be admissible, the Crown must prove beyond a reasonable doubt that Mr. Gagnon made the statement voluntarily. [ 3 ] For the reasons that follow, I have concluded that I have a reasonable doubt as to whether Mr. Gagnon made the statement voluntarily. I rule that it is inadmissible. [ 4 ] I understand that there is no dispute as to the following basic circumstances. Phoenix and his mother, Brittany, and her boyfriend, Cole, lived in a house and Mr. Gagnon lived in the basement. There was an arrangement between Mr. Gagnon and Brittany that Mr.

Gagnon would babysit Phoenix during the day while Brittany was at work. On July 5, 2016, Brittany and Cole were to leave the house early for work. Mr. Gagnon got up early to babysit. Brittany and Cole did not leave as early as anticipated. They left around 8:00 a.m. [ 5 ] After they left, while Mr. Gagnon was caring for Phoenix, he noticed that the child was pale and then that he was not breathing. He communicated with Brittany who told him to call 911. EMS came and took Phoenix to the hospital where he died. [ 6 ] Mr. Gagnon was interviewed by police for about 2 hours on the day Phoenix died, July 5, 2016. Mr.

Gagnon has admitted that his statement on that occasion was voluntary. The Crown has advised that it does not intend to have that statement introduced into

evidence as part of its case. I have ruled it voluntary on the basis of Mr. Gagnon’s admission. It will be available to the Crown for usein cross-examining Mr. Gagnon if he testifies at trial. That interview is not part of the evidence on this voir dire which concerns Mr.Gagnon’s statement of February 6, 2018.

I have not watched the video recording of the July 5, 2016 interview. [7] The Crown has represented that the expert medical evidence at trial will be that Phoenix’s death resulted from injuries whichare inconsistent with accident and which were inflicted on Phoenix sometime between eight hours and three days prior to his death. Iunderstand that the time during which Mr. Gagnon was caring for the child on the morning of July 5, 2016 was within that period. The Interview [8] The interview in which Mr.

Gagnon made the statement to be assessed on this voir dire began at 10:14 on February 6, 2018– 19 months after Phoenix died. The interview ended just over five hours later at 15:27. There were two breaks of about 15 minuteseach. [9] The interview was conducted at EPS headquarters in a “polygraph room”. Mr. Gagnon had been asked to attend for apolygraph test. The police officer who asked him to attend told him that Phoenix had suffered a brain injury, that someone had causedthat injury and that he was one of several suspects. [10] When Mr. Gagnon attended for the polygraph test he met Det.

Furman who took him to the room where the test would beconducted. Det. Furman confirmed to Mr. Gagnon that he was not under arrest, that he was taking the test voluntarily, that the door tothe room was not locked and that he could leave at any time. He reviewed the agenda for the interview – the stages that it wouldinvolve. He said, “Uh I wanna impress on you that the time that we spend together here Darren, is that you’re my guest, okay, you don’thave to be here.” [11] Det. Furman’s conduct of the interview, right from its commencement, was patronizing, condescending and highlymanipulative. Mr.

Gagnon’s conduct during the interview contains no suggestion that he recognized that he was being patronized,condescended to, or manipulated. For five hours, he politely cooperated with Det. Furman. He did not react negatively to Det. Furman’smanner. Det. Furman’s strategy was successful. It had the effect Det. Furman desired. [12] At the start, Det. Furman told Mr. Gagnon what he knew about Mr. Gagnon’s involvement with Phoenix on the day he died –that Mr. Gagnon, when babysitting the child, discovered Phoenix was not breathing and called 911.

He said that the medical evidencewas that Phoenix suffered a significant head injury with trauma to his brain prior to death. The trauma was not of a nature that couldoccur in the day-to-day care of a child. He told Mr. Gagnon that if he caused the injury he would remember doing so and that he couldbe charged with murder. The clear message to Mr. Gagnon therefore was that the stakes were very high – his potential jeopardy wasvery significant. [13] As will appear, much later in the interview but before Mr. Gagnon made the inculpatory statement, Det. Furman advised Mr.Gagnon that what had happened was not Mr.

Gagnon’s fault – it was Brittany’s fault. As I explain below this offered Mr. Gagnonexoneration. Providing the statement sought by Det. Furman would relieve him from the very significant potential jeopardy of which hehad been warned. This, in my view, contributes significantly to a reasonable doubt that Mr. Gagnon’s ultimate statement was voluntary. It is a quid pro quo as described by Iacobucci J. writing for the majority in R v Oickle, 2000 SCC 38 , [2000] 2 SCR 3 at para57. Mr. Gagnon was advised of his rights [14] Early in the interview Det. Furman told Mr.

Gagnon that “. . . my opinion based on the results of the polygraph test, wellthat’s not admissible in court . . .”. He did not say that the results themselves were not admissible. [15] I note that Arbour J. dissenting in Oickle found that exactly the same formulation by the polygraph tester in that case of theinformation provided to the polygraph test subject about the admissibility of the test results was deficient: [para. 117] [T]he explanation . . . is hardly informative about the admissibility, or non-admissibility of polygraph-related evidence. In fact, it isincomprehensible.

It gives no explanation of the distinction between an “opinion based on the results of your polygraph test”, the“results of your polygraph test”, and the “reading” by the polygraphist of the recordings on the polygraph chart. It certainly does notconvey accurately that the interrogators’ categorical assertions that the respondent had been untruthful, repeated to him at everyopportunity during the post-test interview, reflected little more than the interrogator’s inadmissible opinions based on the bare graphsproduced during the respondent’s test. [16] Det. Furman also advised Mr.

Gagnon of his right to speak to a lawyer and that everything said in the interview could be putin evidence. He asked Mr. Furman to sign a consent form for the polygraph examination. Mr. Gagnon signed it and read it out loud. The form confirmed Mr.

Gagnon’s understanding that he had the right to leave the examination at any time and the right to retain andinstruct a lawyer without delay, that free legal advice was available, that he would be given access to a telephone to speak to a lawyeranytime if he wished to, that he was not obligated to say anything, and that anything he said might be given into evidence. [17] When asked, Mr. Gagnon said he did not wish to speak to a lawyer. Det. Furman guaranteed the polygraph result [18] Immediately after Mr. Gagnon signed the consent, Det.

Furman asked him what he labeled “the most important question Ihave to ask you. . . . [C]oncerning Phoenix . . . did you physically cause that head injury?” Mr. Gagnon answered, “No.”

[ 19 ] Shortly thereafter, Det. Furman observed that at that point only Mr. Gagnon knew the truth. But he provided this guarantee: [Interview Transcript, page 19] . . . by the end of the day I guarantee there’s going to be two of us that know the truth . . .” [ 20 ] Det. Furman provided Mr. Gagnon with a booklet which he said contained some questions and answers that people often have about polygraph and asked him to read it. Det. Furman left the room while Mr. Gagnon read the booklet. After finishing reading the booklet Mr.

Gagnon set it down on the desk. [ 21 ] [The interview transcript at page 20 records that before Det. Furman re-entered the room, Mr. Gagnon said, “. . . fuckin’ retarded”. It may be important to note that it is very difficult to hear those words on the video-recording. I did not hear them on my first three of five runs through of that specific part of the recording. On the fourth and fifth runs, I could hear that Mr. Gagnon whispered something very softly. I accept that the transcript is accurate. Of course, it is impossible to know to what Mr.

Gagnon was referring.] [ 22 ] Perhaps significantly, the booklet which Det. Furman gave to Mr. Gagnon to read, is not in evidence on this voir dire. Mr. Gagnon’s suitability for a polygraph test was assessed [ 23 ] For the following half hour or so, Det. Furman carried on a conversation with Mr. Gagnon ostensibly for the purpose of determining Mr. Gagnon’s suitability to take a polygraph test. He told Mr. Gagnon that it was necessary for him to get to know Mr. Gagnon better – and that in the process Mr. Gagnon would get to know Det. Furman better. [ 24 ] Initially, there was discussion of Mr.

Gagnon’s job (roofing but work was slow), physical condition (he was unusually tired that day), how much he had slept the previous night (6 hours), whether he had eaten that morning (he had not), whether he had ever seen a psychologist, a psychiatrist or a family counsellor (he had not), and his medical conditions (untreated asthma and lung disorders, panic attacks, family history of high blood pressure). Many similar subjects were canvassed. [ 25 ] When Det. Furman asked Mr. Gagnon whether he had had any illegal drugs in the preceding 24 hours, Mr. Gagnon without hesitation told Det.

Furman that he had used cocaine with his brother the evening before. Det. Furman registered no disapproval. Rather Det. Furman carried on to ask Mr. Gagnon if he had had alcohol in the previous 24 hours and when Mr. Gagnon said he had had two beers and that he preferred hard liquor, Det. Furman asked him what he liked and approved his answer with some enthusiasm. [ 26 ] The questioning turned to relationships. Mr. Gagnon told Det. Furman of his past and current romantic relationships. Det. Furman offered encouraging and understanding comments in relation to the negative aspects of the relationships which Mr.

Gagnon revealed – for example, why the revival of a relationship after a three or four-month break meant that the relationship was “right”. In this and many other contexts, Det. Furman assumed the role of counsellor, confessor and forgiver to Mr. Gagnon. [ 27 ] Det. Furman asked Mr. Gagnon about his children (he has one of his own and his partner has two). Det. Furman volunteered details of his own family composition and asked Mr. Gagnon about his children’s interests. Det. Furman told Mr. Gagnon about his own children’s interests. The obvious purpose of the discussion was to establish that Mr.

Gagnon’s life and family circumstances were “normal” by Det. Furman’s standards, and to foster the quick development of a bond between Det. Furman and Mr. Gagnon – the relationship that might exist between friends. Indeed, as the details of Det. Furman’s personal circumstances were a bit more advanced than Mr. Gagnon’s – his children were older and were finished with the interests that still engaged Mr. Gagnon’s children – the relationship that Det. Furman appears to have promoted was that of mentor and mentee. [ 28 ] In fact, Det. Furman specifically raised the subject of mentoring.

He extoled the benefits of having a mentor. He asked Mr. Gagnon if he had a mentor when he was growing up. Mr. Gagnon indicated that his Grandmother filled that role until she passed away. Mr. Gagnon observed, in response to Det. Furman’s specific questions, that his Grandmother was a good listener and was not judgmental – she was sick but happy and just dealt with life. Det. Furman labeled her a “survivor” – establishing that in Det. Furman’s view, being a survivor was a very positive attribute. Much later in the interview, Det. Furman applied that label to Mr. Gagnon himself. [ 29 ] Det. Furman turned to Mr.

Gagnon’s history as a child and young adult. Mr. Gagnon provided details which included getting into significant trouble as a youth, living with his Grandmother for a short time, having a difficult relationship with his older sisters, living on the street, and turning his life around. Throughout this discussion Det. Furman provided positive moralistic reactions to Mr. Gagnon’s statements. He accepted negative information with understanding and in a forgiving manner – or quickly and without comment moved on to another subject when Mr.

Gagnon mentioned something a police officer should probably not forgive (like Mr. Gagnon’s involvement in a break and enter). He observed that we all do things we wish we could take back and we are not defined by those things. Rather we are defined by what we do afterwards. Det. Furman complimented Mr. Gagnon that he apparently knew this. His message clearly seems to have been that understanding and forgiveness were available to Mr. Gagnon from his new-found friend, Det. Furman. [ 30 ] Det. Furman asked Mr. Gagnon about his work. Mr.

Gagnon described his history as a construction worker and his one-time interest in becoming a journeyman carpenter. In response, Det. Furman provided his appreciative observations about the honest and hard work of a person involved in the trades – indicating that such work is tougher than police work. [ 31 ] Then Det. Furman asked Mr. Gagnon about his leisure interests and reacted favourably to the answers. He asked Mr. Gagnon about his friends and about what he thought were his best qualities and what those close to him would think were his best qualities.

The answers elicited positive and approving reactions from Det. Furman. [ 32 ] Det. Furman asked Mr. Gagnon about the qualities he does not appreciate in other people. Mr. Gagnon answered anger, overuse of alcohol, and dishonesty. Det. Furman enthusiastically approved of Mr. Gagnon’s inclusion of “dishonesty” on the list. [ 33 ] Det. Furman asked who Mr. Gagnon respected the most. Mr. Gagnon answered his friend, Kyle, whose background, he said,

was similar to his own and who had made something of himself. Det. Furman applied the label “survivor” to Kyle. [ 34 ] Det. Furman asked Mr. Gagnon to place himself on a day to day honesty scale from 0 to 100. Mr. Gagnon answered “75, 80”. Det. Furman complimented the honesty of this answer. He voiced disapproval of the people who answer “99.” But he observed, “. . . what’s important to understand is in this room here today nothing short of 100% truthful is actually gonna cut it and you can do that for me?” Mr. Gagnon answered positively. [ 35 ] Finally, Det. Furman asked Mr.

Gagnon about his expectations and hopes for the near future. Mr. Gagnon’s answer was that he wanted to have his own house, save money, to be married, and to just live his life. Again Det. Furman registered approval of this reasonable and modest answer – and indicated that he was certain that Mr. Gagnon would achieve those goals. [ 36 ] Det. Furman then announced that Mr. Gagnon was an excellent candidate for the polygraph so long as he was 100% truthful. Det. Furman explained the polygraph [ 37 ] Det. Furman then explained how the polygraph works to Mr. Gagnon.

The manner of his explanation was often condescending and patronizing, but again there is no indication that Mr. Gagnon was upset or put off by this. Det. Furman’s approach included asking Mr. Gagnon simple questions related to human physiology and complimenting Mr. Gagnon’s answers, even when they were not correct. [ 38 ] As part of his explanation Det. Furman told Mr. Gagnon a lengthy story of a person who is put in a compromising situation, the details of which appear to have been inspired by information Mr. Gagnon provided earlier about the person he most respected, Kyle, and Mr. Gagnon’s leisure activities.

In the story Kyle is injured while hiking with Mr. Gagnon and as Mr. Gagnon is driving him to the hospital he runs out of gas, goes up to a farm house for help, finds no one there, breaks in to the house and takes some gas. Later, at the hospital the police ask if he broke into the house and stole jewellery which had been reported missing. He answers no. [ 39 ] The purpose of the story appears to have been to communicate to Mr. Gagnon that the polygraph cannot distinguish an explainable lie from an attempt, by lying, to hide serious criminal activity. Det.

Furman’s point appears to have been that absolute and literal truthfulness was essential in answering the polygraph questions, even when there might be a reasonable justification for conduct that would only technically be outside the law and which a reasonable person might therefore understandably lie about. Det. Furman suggested that Phoenix’s injury was Brittany’s fault [ 40 ] At the conclusion of his story, Det.

Furman applied the point of the story in the context of Phoenix’s death: (Transcript of Interview, page 55) F: So what I’m trying to say to you now is that, I’m not saying this is the case, but if you have not been truthful with the police about this matter regarding Phoenix and you now intend not to be truthful with me, well Darren, I’m telling you, you won’t be able to pass this test, okay. I’d rather you tell me the complete truth right now um and, and, and understand the situation than have you fail this test.

Now I’m just saying if the real truth was Darren, is that you were you know in, put in that position by Brittany, ah to babysit um, ah, ah Phoenix and, and I, I’ve heard, I’ve heard how Brittany’s taken advantage of a lot of people doing that in the past right just leaving Phoenix, leaving Phoenix like for all hours right and, and . . . G Yeah the reason why I started watching is ‘cause she got my old roommate to watch . . . F Yeah G . . . ‘cause she was uncapable [ sic ] to watch her kid. F: Well and that’s what I’m getting at here right.

Like if, if Brittany put you in that position, right, a position where you know you were really set up for failure, right because of the things that you know, the, the situation she created and took advantage of you being a generous person and offering to do this, and if, if you did, you know out of frustration because you weren’t given the tools to succeed, if you did physically do something to cause that en, head injury, well I’d rather talk about it now . . . G: No F: . . . and understand it than have you fail the test. So, so I guess I have to ask you, is there anything we need to talk about then?

G: No [ 41 ] This was the first of many instances in the interview when Det. Furman suggested to Mr. Gagnon that what happened to Phoenix was really and primarily Brittany’s fault and not his – a suggestion which Mr. Gagnon resisted and rejected several times but which Det. Furman repeated nevertheless. In later iterations of this theme, Det. Furman’s statement that injury to Phoenix was not Mr. Gagnon’s fault but rather was Brittany’s fault morphed from a suggested possibility of reduced blameworthiness to a certain conclusion of exoneration. [ 42 ] In my view, Mr.

Gagnon’s willingness to make the inculpatory statement he made at the conclusion of the interview may have been influenced by the repeated statement by Det. Furman that whatever Mr. Gagnon did that might have caused injury to Phoenix that morning was in fact Brittany’s fault, not his. This contributes to my doubt as to whether Mr. Gagnon’s statement was voluntary. [ 43 ] I note as well that Mr. Gagnon was firm at this point in the interview that he did not cause Phoenix’s injury. It appears that, despite Det.

Furman’s warning that the polygraph would certainly reveal untruthfulness, he was confident that the answers he would give in the polygraph test would not be of the type described in the story – an answer that required an explanation – that he could truthfully

say that he did not cause the injury. The possibility that he intended to lie and expected to pass the test anyway also exists. In my view, this uncertainty is relevant to the determination of whether the Crown has met its onus on this application. That he eventually gave an inculpatory statement after confidently maintaining that he had done nothing to harm Phoenix for most of the interview might be the result of his will having been overcome to the point that he endorsed the story his new-found friend, Det. Furman wanted him to endorse – one in which he caused Phoenix’s injury. Det. Furman and Mr.

Gagnon discussed the events of July 5, 2016 [ 44 ] The interview moved into the process of formulating the questions that Det. Furman would ask Mr. Gagnon in the polygraph test. At the start of this process, Det. Furman asked Mr. Gagnon to tell him in detail what happened the day Phoenix died. The polygraph questions would be formulated from what Mr. Gagnon said. [ 45 ] In

summary, Mr. Gagnon answered that Brittany had told Mr. Gagnon that she needed to leave early for work on the morning of July 5. Accordingly, he got up at 06:00 and went upstairs. Brittany was lying on the sectional couch. Phoenix was in his car seat on the floor. Mr. Gagnon laid down on the unoccupied portion of the sectional. Mr. Gagnon said he did not remember Phoenix waking up – he slept and Mr. Gagnon slept. Brittany and Cole left around 08:00 or 09:00. Mr. Gagnon set an alarm so he would wake up and prepare Phoenix’s bottle before the time that Phoenix usually had a bottle – 09:00 or 09:30. Mr.

Gagnon woke up and prepared the bottle. He turned on the television. Phoenix did not wake up as usual. At around 10:30 Mr. Gagnon checked Phoenix and found that he was not breathing. He could not hear a heart beat. He panicked. He got Phoenix’s stroller out intending to rush Phoenix to the hospital. He and Brittany communicated by text message. Mr. Gagnon told Brittany what was happening. She told him to call 911. He did. He was told to give Phoenix CPR which he did until EMS arrived and took charge. [ 46 ] Det. Furman reviewed the details of this statement with Mr. Gagnon.

This review resulted in the addition of details to the events as Mr. Gagnon had described them. Some of the details Mr. Gagnon added in response to the question included: he had eaten some breakfast after Brittany and Cole left; it was closer to 09:00 when Mr. Gagnon noticed Phoenix was not breathing; he tried to wake Phoenix up by making loud noises; he tried to pick Phoenix up but “he just didn’t have any support”; he put Phoenix back into the stroller; he got ready to go to the hospital and put Phoenix’s car seat onto the stroller. [ 47 ] Det. Furman then summarized the information Mr. Gagnon had presented.

Mr. Gagnon confirmed that the

summary was accurate. [ 48 ] During the course of this review of the relevant events, Mr. Gagnon mentioned an incident that happened about two weeks earlier when Phoenix had fallen off the sofa when Mr. Gagnon was changing his diaper and had left Phoenix unattended for the time it took to throw out the dirty diaper. He also mentioned that on the night of July 4 he had heard Phoenix coughing and Brittany yelling to Cole that Phoenix was choking. [ 49 ] At this point in the interview Det.

Furman made a point of distinguishing between someone doing something to hurt Phoenix and someone doing something to deliberately cause Phoenix’s injury. He made it clear that the issue to be determined was whether Mr. Gagnon had deliberately caused the injury. Yet in the central question he formulated for the polygraph test he did not maintain that distinction. The question did not include the word “deliberately”. [ 50 ] Det. Furman’s emphasis on this distinction could, in my view, have had a subtle effect on Mr.

Gagnon’s willingness at the end of the interview to make the inculpatory statement – he may have understood that actions on his part that were not intended to cause injury but may have caused injury were not criminal. Further, that Det. Furman had emphasized this distinction may have contributed to Mr. Gagnon’s acceptance of Det. Furman’s assurance, later in the interview, that what happened was not Mr. Gagnon’s fault and to his proceeding to make the inculpatory statement. This feature of the interview, in my view, contributes to a reasonable doubt as to whether Mr.

Gagnon’s statement was voluntary. [ 51 ] At the conclusion of the discussion of the events of July 5, 2016, Det. Furman asked Mr. Gagnon how Phoenix’s injury happened. Mr. Gagnon answered that he had no idea. Det. Furman asked if Mr. Gagnon thought there could be any reason why someone would get to the point of harming a baby. Mr. Gagnon answered, “No.” Det. Furman asked Mr. Gagnon what he thought should happen to “the person that did do this.” Mr. Gagnon answered, “Jail time . . . for sure.” Det. Furman accepted that answer without comment. [ 52 ] Det. Furman asked Mr.

Gagnon what question he could ask in the polygraph test that would “clear up this whole matter”. Mr. Gagnon answered, “Did you harm Phoenix?” Det. Furman proposed that the test question should be, “Concerning Phoenix, did you physically cause that head injury?” He asked if Mr. Gagnon could answer “no” to that question and be 100% truthful. Mr. Gagnon answered “Yeah.” [ 53 ] At that point Det. Furman and Mr. Gagnon took a break of about 20 minutes duration. Det. Furman and Mr. Gagnon formulated the “safety valve” questions [ 54 ] On the resumption of the interview, Det. Furman explained to Mr.

Gagnon that it was necessary to ensure that in answering the questions during the polygraph test Mr. Gagnon’s physiological responses were not affected by thoughts of occasions, unrelated to the investigation, when he had not been truthful, or occasions, unrelated to the investigation, when he had done something illegal or occasions, unrelated to the investigation, when he had done something of which he was ashamed. Det. Furman explained that to ensure the test was not affected by such thoughts, it was necessary that he and Mr.

Gagnon talk about occasions in the past when he had lied, done something illegal or done something about which he was ashamed and use that information to formulate “safety valve” questions to ensure the integrity of the polygraph test. [ 55 ] As I understand Det. Furman’s testimony on this voir dire, contrary to what he told Mr. Gagnon, the purpose of the safety

valve questions, in reality, had nothing to do with ensuring that Mr. Gagnon’s physiological reactions when answering the test questions would not be tainted by thoughts of something unrelated to the incident under investigation. The actual purpose was to ensure that when Mr. Gagnon was asked the safety valve questions he would lie despite having been admonished repeatedly not to. This would permit Det. Furman to compare Mr. Gagnon’s physiological reactions when known to be lying to his physiological reactions when asked the vital question: Did you injure Phoenix?

Similar physiological reactions in both instances would suggest that Mr. Gagnon was lying in his answer to that vital question. [ 56 ] The process of explaining this aspect of the testing to Mr. Gagnon was very lengthy. Det. Furman’s explanation included examples represented to have arisen in previous polygraph tests he had conducted. The explanation involved much moralizing and judgment on Det. Furman’s part about what people had told him in the past. It is apparent that he was establishing with Mr. Gagnon that he, Det. Furman, had very high moral standards, and that revelation of conduct on Mr.

Gagnon’s part that did not meet them would be judged very negatively: lying is one of the most disrespectful things you can do to someone; lying to the most important person in your life is “devious stuff”; lying to one’s employer about being sick and unable to work is “very disappointing stuff”. [ 57 ] Det. Furman asked Mr. Gagnon if he had ever lied to anyone. Mr. Gagnon snickered. Det. Furman chastised him: “I can see you’re laughing. I told you this was important. I hope you are taking this seriously”. All of this, I understand, was to build up the likelihood of a significant physiological reaction when Mr.

Gagnon, though strongly admonished to tell the truth, lied on the safety valve questions. [ 58 ] In the discussion which resulted in the setting of the safety valve questions, Det. Furman asked Mr. Gagnon if he had ever lied to anyone, if he had ever engaged in illegal conduct, and if he had ever done anything of which he was ashamed. Mr. Gagnon’s answers (that he gave police a false name when he was younger; that he committed a B&E; that he had taken his partner for granted) gave Det. Furman further opportunity to moralize and to communicate to Mr.

Gagnon, somewhat subtly, that his new friend had very high and uncompromising moral standards – standards which would not characterize action that injured Phoenix as not the actor’s fault unless that were truly so. [ 59 ] In the case of Mr. Gagnon’s statement that he lied to police when young, Det. Furman seemed to be very concerned that Mr. Gagnon would engage in such conduct. In the case of Mr. Gagnon’s statement that he committed a B&E, Det. Furman, rather clumsily, appeared to assume that he broke and entered his own residence thus minimizing the illegality of the incident. When corrected and told that Mr.

Gagnon broke and entered someone’s apartment, Det. Furman expressed surprise and disappointment. [ 60 ] I expect these reactions on Det. Furman’s part were part of his strategy of establishing that he had very high moral standards and that his moral pronouncements were important and reliable. This, in my view, would be significant later in the interview when Det. Furman pronounced Mr. Gagnon blameless if he did something to cause Phoenix’s injury: It was not Mr. Gagnon’s fault – Brittany was to blame. This was Det. Furman’s

part in the quid pro quo. [ 61 ] As the safety valve questions were set, Det. Furman appeared satisfied when Mr. Gagnon mentioned one instance of lying, or one instance of doing something illegal, or one instance of doing something of which he was ashamed, though it was clear from the discussion that there were other specific instances which Mr. Gagnon could easily bring to mind. Having heard the one instance, Det.

Furman formulated each safety-valve question: - “Not connected with this case, and besides what you told me about lying that one time to the police, do you now recall ever telling even one other lie in your life?”; - “Not connected with this case, besides what you have told me about breaking into that apartment that one time, do you now recall ever doing anything else illegal”; - “Not connected with this case, besides what you’ve told me about taking Kendra for granted, do you now recall ever doing anything else you should feel guilty or ashamed of?”. [ 62 ] In each case, after stating the safety valve question, Det.

Furman, without pause, said, “you can obviously answer no to that question and be 100% truthful.” This was patently not so. From the previous discussion the opposite was clear – Mr. Gagnon could not truthfully answer “no” to the questions. “No” would be the lie that Det. Furman actually wanted. [ 63 ] That Mr. Gagnon was confused about these safety valve questions and Det. Furman’s instruction that he could honestly answer “no” to them became clear when the polygraph test proceeded. The first time through he answered “Yes” when Det. Furman had instructed him to answer “No”. Det.

Furman, chastised him for doing so, and again firmly, instructed him to answer “No.” I describe this part of the interview in more detail at para [68] below. [ 64 ] It seems possible that the evident confusion in Mr. Gagnon’s mind as to whether or not Det. Furman truly wanted him to be truthful – and, more significantly, whether he should accept Det. Furman’s instructions to give him the answer he clearly wanted – even if it was false – may have influenced the free exercise of his will in giving the inculpatory statement he gave at the end of the interview.

Clearly there were circumstances when, for some unstated reason, lying was what Det. Furman actually wanted from Mr. Gagnon. It is possible that Mr. Gagnon thought one such circumstance included endorsing a version of events in which he did something to cause Phoenix’s injury – especially where having caused injury to Phoenix in the circumstances was blameless conduct, as Det. Furman clearly represented it was. This, in my view, also contributes to a reasonable doubt that Mr. Gagnon’s inculpatory statement was voluntary. Det. Furman administered the polygraph test [ 65 ] Det.

Furman attached the polygraph equipment to Mr. Gagnon. He missed no opportunity to praise Mr. Gagnon on his cooperation. He pronounced the completion of each small step of the process as being “Perfect”. [ 66 ] He conducted a “pick a card” test – he asked Mr. Gagnon to pick a numbered card from a small pack and to answer “No”

when asked whether he had drawn each number, even though that answer, in one instance, would be a lie. [Another instance when Det. Furman despite having told Mr. Gagnon that he must always be 100% truthful, asked him to lie.] Det. Furman identified the card Mr. Gagnon had drawn. This I expect was intended to demonstrate to Mr. Gagnon the infallibility of the polygraph in detecting a lie. That however, was not the purpose Det. Furman represented to Mr. Gagnon. He told Mr. Gagnon that the purpose of the pick a card test was to calibrate the equipment to Mr. Gagnon. [ 67 ] Det.

Furman then conducted the actual test, asking the questions which Mr. Gagnon had been advised would be asked. [ 68 ] As previously noted, on the first run of the test, Mr. Gagnon answered “Yes” (which was the truth) to the safety valve questions to which Det. Furman had previously indicated he could answer “No” while being 100% truthful. Det. Furman, on completing that run of the test, asked Mr. Gagnon what was going on. Mr. Gagnon said there were things other than the matters they had previously discussed that came into his mind when the safety valve questions were asked. Det. Furman interrupted Mr.

Gagnon’s attempt to explain further and told Mr. Gagnon to answer “No” to those questions and “move forward”: F . . . I just need you to answer no to those questions and we need to move forward here, Darren. Okay can, can we do that, can we just answer no to those questions and move forward and finish off with this test here? Darren, can we just do that, move forward here? G Move forward? F And just, and just, yeah and just answer no to those questions, can we do that? Okay ‘cause that’s what we reviewed. Again you just have to trust this process and you just have to follow this, okay?

So we can move forward here then? [ 69 ] Much later in the interview when Det. Furman encouraged Mr. Gagnon to adopt a version of the events of July 5, 2016 that involved him causing injury to Phoenix, assuring him that it was not his fault if he did, but was Brittany’s fault, he again invited Mr. Gagnon to do so because it would permit him to “move forward”. During the test he invited Mr. Gagnon to answer test questions with what he and Mr.

Gagnon both knew, without acknowledging it to each other, were lies, in order to “move forward”. [ 70 ] The use of the words “move forward” in this context may add to a doubt element which I have already identified. In my view, it is possible that later in the interview, when Det. Furman encouraged Mr. Gagnon to “move on” and describe a version of the events of July 5, 2016 which included him causing injury to Phoenix, Mr. Gagnon recognized this as a second occasion when for some reason Det. Furman wanted him to lie, something which Mr. Gagnon could safely do because he had been assured by Det.

Furman that what happened was not Mr. Gagnon’s fault – it was Brittany’s fault. In my view, this possibility contributes to a reasonable doubt that Mr. Gagnon’s statement was voluntary. [ 71 ] Det. Furman administered the test questions two further times. Then there was a 15- minute break in the interview while Det. Furman analyzed the polygraph results. Det. Furman’s monologue [ 72 ] When the break ended and Det. Furman and Mr. Gagnon returned to the polygraph room Det. Furman noted that he told Mr. Gagnon at the beginning that he would be sharing the results of the polygraph with Mr.

Gagnon after the test was done. [ 73 ] Det. Furman then confirmed that nothing had changed about Mr. Gagnon’s rights: that he still had the right to talk to a lawyer and that continuing to participate in the interview continued to be voluntary. Though, apparently, he considered it important to remind Mr. Gagnon of his rights before beginning the post test interview, (which had not been included in the day’s agenda as Det. Furman had described it at the commencement of his time with Mr. Gagnon), he did not mention Mr. Gagnon’s right to silence. He did not again caution Mr.

Gagnon that anything he said could be offered in evidence. [ 74 ] In the context of the interview, which included: - Det. Furman confirming to Mr. Gagnon many times that what happened was not his fault, - that what Det. Furman needed to know, for some undisclosed reason, was the “hows and whys” of what happened (as opposed to just the “whats), - that when Mr. Gagnon in attempting to provide those hows and whys got to a certain point several times where his memory went “fuzzy”, - that Det. Furman assured Mr.

Gagnon that he was there to help him to move forward, through the fuzziness, and remember, the significance of Mr. Gagnon not being reminded that he had a right to remain silent and that what he said could be used in evidence, is in my view, significant. It is possible that Mr. Gagnon thought that this unannounced phase of the interview was of a different character than what had gone on before. It was no longer an attempt to discover whether he had engaged in criminal conduct – it was an attempt by Det.

Furman to learn details, to fill in gaps, to uncover possibly significant aspects of the circumstances – but not to obtain a statement from Mr. Gagnon that would be used against him. [ 75 ] Though Det. Furman told Mr. Gagnon that he would tell him the result of the polygraph test, he never did. Whether or not Mr. Gagnon passed or failed or the test was inconclusive was never mentioned either during the interview or in Det. Furman’s evidence on this voir dire . And Mr. Gagnon never asked the result.

Whether he assumed during the remainder of the interview that he had passed or that he had failed or that the test was inconclusive is not before me. It seems unlikely that he would have concluded that he had failed for surely, if that was the case, Det. Furman would have said so. [ 76 ] That Mr. Gagnon was not told the result of the test, in my view, is significant. In this last part of the interview, Det. Furman

indicated several times that he, as well as Mr. Gagnon, knew the truth. The context in which he said so suggested that the truth was that Mr. Gagnon had lied on the polygraph test – but, again, Det. Furman never said so. It is possible that Mr. Gagnon believed he had passed the test – especially if he had not lied on the test. It is possible that he responded to Det. Furman’s continued encouragement for him to add to his account something that could have caused Phoenix’s injury, which encouragement was made in the context: - of Det. Furman’s having pronounced many times that what happened was not Mr.

Gagnon’s fault – it was Brittany’s fault, - of the recognition by Mr. Gagnon that there were times when, for reasons unknown, Det. Furman wanted him to lie, and - in the context of Det. Furman having distinguished between conduct which could have harmed Phoenix and conduct which was intended to harm Phoenix. It is possible that Mr. Gagnon’s response was to invent untrue details in order to please his new-found friend and mentor. [ 77 ] Det. Furman began this phase of the interview with a very long soliloquy which appears to me to have been designed to convince Mr.

Gagnon that the police officers who were investigating Phoenix’s death believed that Mr. Gagnon had caused the injury. Det. Furman set himself apart from this belief – he was not one of the investigators. Rather it was his role to independently determine what had happened by interviewing Mr. Gagnon. [ 78 ] The function of the polygraph test in that process was not mentioned. One might reasonably wonder if the administration of the polygraph was a complete sham. Det. Furman was not asked when testifying in this voir dire what role the polygraph actually played in this interrogation of Mr. Gagnon.

He was not asked if there was in fact a polygraph test at all. But Counsel advised me when I asked them during submissions that the results of the polygraph, whatever they were, had been disclosed to the defence. [ 79 ] In his soliloquy Det. Furman complimented Mr. Gagnon on being a survivor, for “moving on” from the negative events in his life. He indicated that his role was to help Mr. Gagnon “through the process”. He repeated that people sometimes do things that do not define them. He indicated that he could tell there was something weighing on Mr. Gagnon. [ 80 ] He told Mr.

Gagnon that the medical evidence did not support Mr. Gagnon’s version of the events. He gave no specifics as to how the medical evidence was inconsistent with Mr. Gagnon’s version of events except he suggested that the medical evidence indicated that the time window during which the injury which caused the child’s death occurred was a very short time and at least implied that Mr. Gagnon was the only one caring for the child in that time window. [ 81 ] This implication was false.

Counsel have advised that the medical opinion actually is that the injury occurred in the period beginning three days before Phoenix’s death and ending eight hours before the death. At least Brittany was also caring for the child in that time. Whether or not others were also is not in evidence. [ 82 ] He said, more than once, that Brittany put Mr. Gagnon in a position he should not have been put in given the life stresses and responsibilities he had – that she took advantage of him – that he should not have been left alone with Phoenix for the length of time he was. [ 83 ] He affirmed that he thought Mr.

Gagnon was a person who could do good, could talk about his mistakes, about what actually happened – and if he didn’t think so he wouldn’t be wasting his time talking to Mr. Gagnon. [ 84 ] He recalled his previous statement that at the end of the day, he, like Mr. Gagnon, would know the truth and stated that he now knew the truth. [ 85 ] On the few times Mr. Gagnon was invited to speak during this lengthy soliloquy he said he had previously told Det. Furman everything. [ 86 ] The truth, as Det. Furman represented it to Mr. Gagnon, was that Mr.

Gagnon had been set up to fail many times in his life but got through those times. This was another such instance in his life. [ 87 ] Det. Furman said: [Transcript of Interview, page 120] You were put in a position here with Phoenix, with a baby that was colicky, a baby that would not stop crying, a baby in your words that, that would go ape shit and, and Brittany would just leave for all hours, she’d just leave you, absolutely leave you, leave you alone, leave you with no, nobody to help. [ 88 ] He articulated a mechanism for Phoenix’s injury – the mechanism that Mr.

Gagnon eventually adopted in the inculpatory statement at the end of the interview: [Transcript of Interview, page 121] It’s not uncommon for people just to have a split second where, where they, they, they lose control right and that’s human nature. It is you know it, there’s a lot of research that goes into that about human nature and the ability to, in a moment of, of, of, uh extreme pressure and stresses, to react.

It’s our instinct right, and you do this or you do this right, and with Phoenix in this case you had this kid, somebody else’s kid, that was given to you, thrown on you okay by really somebody that didn’t even care about the kid really with the way I, I see it right and, and put you in a position you never shoulda been in.

And I’ve seen it where people have, have been in those positions and a child will, the kid’ll be, go cr, basically go crazy right, and there’s nothing you can do, nothing you can do to console him right, and then there’s that second where, where maybe they go a little bit too far right, maybe there’s you know, maybe they’re in their, their seat and they rock’em a little bit too hard right, but something, something ended up causing that, that head injury ‘kay . (emphasis added) [ 89 ] In response Mr.

Gagnon rejected the idea that Brittany had taken advantage of him: I don’t see her as her taking advantage of me . . . I was paid to do a job and I was doing a job.

[ 90 ] Det. Furman immediately moved to convince Mr. Gagnon that Brittany had set Mr. Gagnon up for failure, that she was the real cause of Phoenix’s injury and Mr. Gagnon was a victim of her neglect. He said: [Interview transcript, page 122] She was . . . barely available to be talking to right.

I mean it, I mean I think we can both agree on that that you know she didn’t, she didn’t set this situation up the way that it shoulda been okay and you know and, and because of her, because of really I mean her lack of commitment to her kid you know, and her, her just wanting to just throw this kid on somebody, she created almost a, a series of events that were, were put into motion right and, and you happened to be there, you happened to be the guy trying to pick up the pieces and during that time as you doing your best trying to pick up these pieces, something happened to Phoenix right, something did.

I mean we have uh they have uh the medical evidence that, that supports that something happened to him right, within that very short period of time. You told me yourself I mean you were alone with him okay, there was nobody else there ‘kay, and then what that tells me and what that supports is, is that you were set for failure ‘kay, wasn’t your fault , you were put there. [ 91 ] Mr. Gagnon continued to resist this analysis. He said, “She did a lot for me though.” Det.

Furman responded: [Interview Transcript page 124] She may have done a lot for you, but Darren, when it really counted, when it really counted, when you needed somebody there, there was nobody there for you. . . . it sounds like that this is just . . . a repeat of stuff that happened in the past where people weren’t there for you. [ 92 ] Det. Furman then told of an occasion when there were a lot of stresses in his own life, which he set out in some detail. One night he got home from work and his 6-month old daughter who was “a colicky kid” and was always screaming was inconsolable.

His wife said “I’m done, you watch the kid.” His wife left him with the child. He was tired and stressed. “She didn’t set me up for success.” He held his daughter. She was screaming. “She was going ape-shit on me.” [“Ape shit” was a term Mr. Gagnon had used in reference to how Phoenix sometimes behaved.] When Det. Furman’s efforts to calm the child failed, “I felt nothing but anger at that moment. I did ‘cause that’s a human response, it’s a natural human response.” Just as Det. Furman was getting to “that point”, he felt a hand on his shoulder. It was his wife. She said, “I’ll take over”. Det.

Furman observed that the difference between Mr. Gagnon’s situation with Phoenix and his own situation with his daughter was that somebody was there for him but Mr. Gagnon had nobody there for him. [ 93 ] Det. Furman confirmed when testifying on this voir dire that this story was a fiction. In my view it was obviously designed to establish for Mr. Gagnon that Det. Furman, whose moral standards had been established to be very high, attached no blame to the conduct he wanted Mr. Gagnon to admit having engaged in and was now, during the interview, “there for” Mr. Gagnon.

He said, “I’m here to work with you today because I, I’ve been there.” [ 94 ] Det. Furman’s soliloquy continued: [Interview transcript, page 126] . . . I can see that you’re struggling. I can see it. Okay it’s as plain as day but despite that, you came here today because there’s a part of you that wants this off your shoulders. You do and you know as well as I do that as good as Brittany was and that’s where I’m coming around on this, as good as she was, is she didn’t set you up for success there, Darren. She didn’t and I know that. She wasn’t available when you needed her.

You needed her and that’s why I say, that’s why I say that you were taken advantage of, okay, because you were put in a position that you never should have been in. You never should have been in it, okay, and, and I know you’re agreeing with that because you know you never should have been put in that position, right? Yeah. You shouldn’t have. And Darren, I also know, I also know this was a one-time thing. This wasn’t something that you did over and over and over again. I know that. Darren, I know that about you, okay.

What I know that happened is that this was a momentary lapse of judgment, it was a split second, that’s what it was. That minute, that second on that clock of time that you wish you could take back. I know you do. Darren, I know you wish you could take it back. And I know that it was a one-time thing. That’s it. It was a one-time thing. You didn’t wake up one day saying I’m gonna do this. But it was a series of events that piled up one after another, one after another to the point where you lost control, okay and that’s normal. It happens, okay. And I’ve been there, okay, Darren.

I have been there and you were there. But the difference is, is that you didn’t have someone there for you when you really needed ‘em, you didn’t have that person there. It was just a one-time thing. And that matters. Trust me, that matters. Those hows, those whys, that’s what matters to people. It was a one-time thing. It’s not your fault, it’s, the way I look at it, it’s Brittany’s fault. You never should have been put in that position.

She put you somewhere in a, in a spot, in a place that you never should have been in and that’s why I say she took advantage of you and you’re good to y, you know, your nature and that’s how I know here, that’s how I know that that you are a good person. . . . You know and today, I mean we’re, Darren, we’re here to move forward and we really are. You know we’re here to get this weight off your shoulders, um and I’m here to move forward with ya.

I mean I know right now you probably feel like you know you’re, you’re in a, a bit of a, a kind of like a deep dark hole right, and but I can tell ya that the, the difference though this time Darren, as opposed to other times, where, you’ve found yourself in that situation, is I’m in there with ya. I’m in there with ya. And I’m here to, to navigate that with you, to talk about it and to talk about how, how it got to that point on that day. . . . But it was a, a, a split second, a lapse of judgment, that’s it. It was a basic human frailty, it was a basic human frailty, Darren.

It was on, and, and could, could, could people blame you for, for human frailty? I don’t think so . . . . ‘Cause the person that, that I got to know today, the person that’s sitting here with me, you know it shows a lot about your character and who you are and I think you want to be that person that moves forward , that moves forward . And the way we move forward , move on, is we understand and that’s why I’m here talking to ya. [ 95 ] Det. Furman’s soliloquy, as I’ve labeled it, began at about 13:50. The portion I have so far described ended at 14:22, about a

half hour after it started. During this time Mr. Gagnon sat in one position looking at Det. Furman and listening to him. He made no physical response to anything Det. Furman said. During the half hour he spoke fewer than 80 words. [ 96 ] This portion of the interview ended with Det. Furman saying: . . . You were set up for failure, weren’t you? It’s one time, a second, maybe two, but it wasn’t something, I know that about you, it wasn’t something you meant to happen. Darren, again, you didn’t mean it to happen, did ya? Just tell me you didn’t mean it to happen. No? No I know. Mr.

Gagnon made an inculpatory statement [ 97 ] At this point Mr. Gagnon changed his posture for the first time since the soliloquy began. He leaned forward in his chair and held his head in his hands. He said, “I don’t remember doing it either”. Det. Furman took on the role of a helper to Mr. Gagnon – someone who could help him to remember the critical parts of the events that Mr. Gagnon could not remember. [ 98 ] Det. Furman told Mr. Gagnon a parable about why people do things they later regret and wish they could take back.

The parable suggests that in every person there are two wolves – a white wolf and a black wolf which are constantly battling one another. The black wolf is full of fear, hate, anger and jealousy. The white wolf is full of love, passion, hope, faith, and understanding. Which one wins the battle? The one that we feed. [ 99 ] Det. Furman addressed the relevance of the parable to Mr. Gagnon’s situation: . . .

I think Darren, that what’s been happening with, with you um through life, through this thing is that black wolf has been fed and, and I think that knowing that the person you are is that you wanna feed that white wolf, and I know you are that kind of person. And today’s about moving forward . . . [ 100 ] Det. Furman repeated the same themes that had dominated his half hour long monologue: you were set up to fail; you didn’t plan this; it was a mistake; you succumbed to a human frailty; I’m here to understand what happened; Brittany set you up for failure. [ 101 ] Mr.

Gagnon said he was trying to remember that morning. He agreed with Det. Furman’s suggestion that there were parts of what happened that he had left out of his previous description of events, but that he didn’t remember what. [ 102 ] Again Det. Furman repeated the themes of his previous monologue. Mr. Gagnon asked Det. Furman if he had a card. As I interpret the request he meant he wanted to go away and think about what happened and get back to Det. Furman. When Det. Furman suggested that the 18 months that had passed since Phoenix’s death had given Mr. Gagnon plenty of time to think, Mr.

Gagnon said he wanted to go see a psychiatrist to see if she could help him to “bring it out”. [ 103 ] Det. Furman avoided what I interpret as Mr. Gagnon’s request to adjourn the interview and get help with what Mr. Gagnon labeled the fuzzy aspects of his memory of the relevant events. He invited Mr. Gagnon to describe those “cloudy parts” to him. “I’m willing to listen”. He asked Mr. Gagnon to “Tell me what you remember”. [ 104 ] This is the point where Mr. Gagnon’s inculpatory statement began. He said, “I remember rocking him.” He said he didn’t remember what happened after that. Mr.

Gagnon moved his right foot up and down, apparently in the motion that he employed to rock Phoenix while he lay in his car seat. Det. Furman noticed and identified the motion as what Mr. Gagnon was doing: “So this is what you’re doing, up and down? Okay. Then tell me what he’s doing as you’re, as you’re rocking him.” Mr. Gagnon said Phoenix was crying. Det. Furman then suggested that in response, Mr. Gagnon rocked Phoenix harder: “I imagine like you said he’s, he’s going ape shit right now so you’re going a little bit harder.” [ 105 ] When Mr. Gagnon said that is as far as his memory would take him, Det.

Furman suggested a scenario: [Interview Transcript, page 140] I know that there’s more. We’re there. We’re there, we’re rockin’ him, he’s not stop, he’s not stopping. But well we, you need to stop him. You need to stop him ‘cause he won’t stop. And so you’re back there, you’re rockin’ him, you can see it. He’s crying, he’s not stopping. You’re getting frustrated, you can’t do it, you can’t stop him right now but he needs to stop. You’re alone, there’s nobody to help ya. [ 106 ] Mr. Gagnon said, “Stop. I need a break” [ 107 ] Det.

Furman skillfully maneuvered around this request repeating themes from his previous soliloquy: we’re opening this door together; this wasn’t something you planned; stop feeding the black wolf. [ 108 ] Mr. Gagnon, at this point, displayed considerable emotion. He quietly asked Det. Furman to “give me a sec.” [The Interview Transcript, page 141 line 4202 indicates that Mr. Gagnon said, “I feel sick”. I have listened several times to the video recording. I believe what he actually said was “Give me a sec”.] [ 109 ] Then Mr.

Gagnon sat leaning forward in his chair, with his head in his hands for approximately five minutes. During this time Det. Furman said nothing. It is difficult not to conclude on watching this period of silence that Mr. Gagnon, with considerable emotion, is wrestling with the question of whether or not he should give Det. Furman more detail, perhaps invented detail, as to what happened when Phoenix was in his care that morning. After five minutes of silence, Mr. Gagnon, still leaning forward in his chair, raised his head. Det. Furman, whispering, said, “What do you remember”. Mr.

Gagnon said, very quietly, “Spinning the car seat around . . . towards the TV.” He demonstrated the motion – a swift swipe with his right arm. [ 110 ] Mr. Gagnon continued: [Interview Transcript page 141]

Getting up and going out for a smoke. Came back in . . . still crying . . . spun him back around . . . foot was going harder . . . bounce his head off the car seat . . . that’s when I started to stop. [ 111 ] As Mr. Gagnon said “foot was going harder” he moved his right foot in an up and down motion only slightly higher than in his original demonstration of this motion. When Det. Furman reviewed what Mr. Gagnon had said, he asked about the force Mr. Gagnon used to rock the car seat. Again Mr.

Gagnon demonstrated – but this time the force he demonstrated was considerably greater than before – he lifted his right knee and his heal left the ground in the demonstration of this pumping action. [ 112 ] Mr. Gagnon said that as he rocked the car seat in the manner he demonstrated, Phoenix’s eyes started closing. Mr. Gagnon thought his actions were working. Then Phoenix wasn’t moving. Mr. Gagnon checked to see if Phoenix was okay. He checked Phoenix’s wrist for a pulse. He put his head to Phoenix’s chest. Phoenix was not breathing. Mr. Gagnon said he panicked and tried to get him to the hospital. [ 113 ] Mr.

Gagnon’s emotions, at this point, overcame him to some extent. He was crying. Det. Furman reached out and touched him on the shoulder and thanked him for telling him what he had told him. Mr. Gagnon, weeping, said, “I’m a horrible person.” [ 114 ] Det. Furman took Mr. Gagnon through the events again and a few details were added: Phoenix woke up and started crying about a half hour after Brittany left which was about 08:00 or 08:30; Mr.

Gagnon made him a bottle while holding him but Phoenix didn’t want to feed; he made and tried to feed him Pablum while he was in his high chair but he did not want it; he changed his diaper; he cried and cried; Mr. Gagnon tried bouncing him but it did not work; he put Phoenix back into his car seat with a “slight drop” though when he released him, Mr. Gagnon’s hands were touching the sides of the car seat. [ 115 ] On a further review of the events, Mr. Gagnon said that when he came back in the house from having a smoke and Phoenix was still crying “. . .

I got even more frustrated . . . so I turn the car seat around and grabbed it by the side where I pushed it and I just pulled it like this . . . and put my foot on it and ‘cause of my agitation . . . went fast . . . and he just kept crying and just getting’ more frustrated . . .” Again Mr. Gagnon demonstrated the motion of his right foot. It was a vigorous pumping action with his foot off the ground and his knee rising with each pump. He said that this was when Phoenix’s head was bouncing off the back of the car seat. Det. Furman asked for how long this went on. Mr.

Gagnon answered, “Five minutes.” [ 116 ] Again Mr. Gagnon reported that Phoenix’s “eyes started to close” and he “slowly stopped crying” – not instantly but progressively. Then Phoenix wasn’t moving. He started going pale. Mr. Gagnon checked his pulse and started “freaking out”. He got the stroller in preparation for taking Phoenix to the hospital. Brittany, by text message, told him to call 911. [ 117 ] Det. Furman asked him why he didn’t call 911 right away. Mr. Gagnon answered, “That wasn’t my first thought. My first thought was getting him to the hospital.” [ 118 ] At the end of Det.

Furman’s final review of what Mr. Gagnon had said, Mr. Gagnon asked him, “Can we set up an appointment ‘cause I do like talking to you, it’s easy”. Det. Furman said that could be done. Mr. Gagnon said, “It’s helping me for sure.” [ 119 ] The interview ended a minute or two later. I have a reasonable doubt as to the voluntariness of Mr. Gagnon’s statement. [ 120 ] As indicated, I have concluded that I have a reasonable doubt as to the voluntariness of Mr. Gagnon’s statement.

I have identified in the above discussion the various elements of the interview that have contributed to that doubt. [ 121 ] In my view, there is a reasonable possibility that Mr. Gagnon’s statement was induced by the following factors among others: - Det. Furman’s patronizing, condescending and highly manipulative manner in conducting the interview and that Mr. Gagnon apparently did not recognize that he was being patronized, condescended to or manipulated; (see para. [11] above) - Det. Furman’s incomplete advice to Mr. Gagnon regarding the inadmissibility of polygraph test results; (see para. [15] above) - Det.

Furman’s pronouncement, repeated multiple times, exonerating Mr. Gagnon of fault for what occurred. It was Brittany’s fault; (see para. [42] above) - The quid pro quo that arose from this pronouncement – providing Det. Furman with a statement he clearly sought, in addition to the one Mr. Gagnon had already provided, would be admitting to conduct that was blameless. It would relieve Mr. Gagnon of the potential jeopardy which Det. Furman had advised him he was in – of being charged with murder; (see para. [13] above) - Mr. Gagnon’s firm and confident denial that he caused Phoenix’s injury in the face of Det.

Furman’s warning that lying on that subject would result in him failing the polygraph test; (see paras. [43] and [51] above) - Det. Furman’s statement to Mr. Gagnon that there was a distinction between harming the child and intentionally causing injury to the child; (see para. [50] above) - Det. Furman’s clumsy and confusing inference to Mr. Gagnon that there were circumstances when, for reasons never divulged, Det. Furman wanted Mr. Gagnon to lie; (see para. [64] above) - Det. Furman’s failure to advise Mr.

Gagnon that he continued to have the right to silence in the post polygraph test portion of the interview; (see para. [74] above)

- The possible confusion in Mr. Gagnon’s mind resulting from Det. Furman not telling him the results of the polygraph test, thoughhe had promised to do so; (see para. [76] above) - Det. Furman’s misrepresentation of the medical evidence to Mr. Gagnon – inferring that Phoenix’s injury must have occurredwhile Phoenix was in Mr. Gagnon’s care; (see para. [81] above) - That important elements of Mr. Gagnon’s inculpatory statement were first suggested to him by Det. Furman. (see paras. [104] and[105] above) [122] In Oickle, the Supreme Court, at para 55, referenced an

article written by Freedman C.J.M in which he said that mildinducements such as “better tell us everything” are not always fatal. Where the court concludes that such words did not in fact induce theaccused to speak – where “he would have confessed in any event” – the court might well conclude that the statement was voluntary. Inthis case, I am unable to conclude, beyond a reasonable doubt, that the subtle inducements provided by Det. Furman did not cause Mr.Gagnon to provide the inculpatory statement. I am unable to conclude beyond a reasonable doubt that the inducements could notreasonably have be seen by Mr.

Gagnon as an implicit promise – that providing the statement he did would give Det. Furman the “how’sand why’s” he needed but would not expose him to criminal liability. I have a reasonable doubt that he would have confessed in anyevent. [123] In my view, the inducements and other factors I have identified above were strong enough to raise a reasonable doubt aboutwhether Mr. Gagnon’s will was overborne. Oickle para. 57. [124] I have considered whether Det. Furman’s multiple statements that what happened was not Mr.

Gagnon’s fault but rather wasBrittany’s fault, constituted “downplaying the moral culpability of the offence” which, the Supreme Court said is not usuallyobjectionable. The Court distinguished between such minimizing and a suggestion by the police interviewer, “that the confession willresult in the legal consequences being minimal” which is inappropriate. Oickle para. 74. In my view Det. Furman crossed the line onthis point by not just minimizing Mr. Gagnon’s blameworthiness, but by pronouncing him not at fault – by exonerating him. And, ofcourse, this exoneration was provided to Mr.

Gagnon by someone who was in a position to determine whether or not Mr. Gagnon wouldbe charged with a crime – in particular murder. It was significant. [125] I have also considered the Supreme Court’s observation (Oickle para. 85) that obtaining a confession through questioning theaccused in a gentle, reassuring manner employed to gain the accused’s trust, does not render a confession inadmissible. In my view, thegentle, patronizing, and moralizing aspects of Det. Furman’s technique in this interview were of a different order. They reasonably couldhave convinced Mr. Gagnon of the reliability of Det.

Furman’s pronouncement that he was not at fault. And that pronouncement, as Ihave said several times, may have induced Mr. Gagnon’s statement. The contribution of this factor to my doubt that Mr. Gagnon’sstatement was voluntary is significant. [126] I have also considered the Supreme Court’s discussion (Oickle para 94 ff) of the significance of the interviewer’s exaggerationof the accuracy of the polygraph’s validity. That certainly occurred here. And its significance is complicated by the fact that Mr.Gagnon was never told the result of the polygraph test.

All he was told was that from the polygraph test result, Det. Furman now knewthe truth. In my view, my conclusion that the failure to advise Mr. Gagnon of the result of the test contributes to a reasonable doubt as towhether his statement was voluntary, does not offend any principle pronounced by the Supreme Court in Oickle. [127] In reaching my conclusion I have also considered the many other authorities which Counsel cited to me, including (by theCrown): R v. Whittle (SCC), [1994] 2 SCR 914; R v. Singh 2007 SCC 48 , [2007] 3 SCR 405; R v. Spencer2007 SCC 11 , [2007] 1 SCR 500; R v.

Paterson 2017 SCC 15 , [2017] 1 SCR 202; R v. Love 2020 ABQB 689; and(by the Defence): R v. Minde 2003 ABQB 797; R v. Millar 2003 ABQB 146; R v. Chapple 2012 ABPC 229; R v. MJS 2000 ABPC 44;R v.Laverdiere 2014 ABQB 68; R v. Tessier 2020 ABCA 289; R v. Armishaw [2011] OJ No. 2662; and R v. Thaher 2016 ONCJ 113. [128] The authorities cited by the Crown do not, in my view, contain anything which significantly adjusts the law as stated by theSupreme Court in Oickle with which, in my view, my conclusion in this case is consistent.

The authorities cited by the Defence are caseswhere trial judges have reached conclusions similar to the conclusion I have reached in this case in circumstances similar to thosepresented in this case – sometimes closely similar. The main point I take from all these authorities is that the determination of whether ornot voluntariness has been proved beyond a reasonable doubt is very dependant on the specific and individual circumstances of the casebefore the court.

As indicated, in the case before me, I am satisfied that voluntariness has not been proved beyond a reasonable doubt. [129] I find the statement inadmissible. Temporary Publication Ban [130] Though Counsel did not address whether or not an order banning publication of these reasons was required, I have decided toimpose one on the assumption that witnesses who will testify at this trial should not be aware of the content of these reasons before theytestify. If my assumption is incorrect, I expect Counsel will so advise me.

The ban I impose therefore is temporary and subject tovariation when Counsel have had an opportunity to address the point. Unless otherwise ordered, the ban will end at the conclusion of thetrial of this matter. Heard on January 11, 12 and 14, 2021. Dated at the City of Edmonton, Alberta this 8th day of February, 2021.

B.R. Burrows J.C.Q.B.A. Appearances: Danielle Green and Suzanne Goldman for the Crown Robert J Wachowich for the Accused