R. v. G.D., 2016 BCPC 487

Citation: R. v. G.D. 2016 BCPC 487 Date: 20161207 File No: 208101-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. G.D. BAN ON PUBLICATION PURSUANT SECTIONS 486.4 and 517 OF THE CRIMINAL CODE OF CANADA RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J.I.S. SUTHERLAND Counsel for the Crown: W. Sayson, Q.C. and B. Lane Counsel for the Defendant: C. Corriveau Place of Hearing: Surrey , B.C. Dates of Hearing: October 27; 31; November 21, 22, 24, 25, and December 1, 2016 Date of Judgment: December 7, 2016 [ 1 ] These are my reasons with respect to the voir dire on the voluntariness of a statement made by Ms. D. On an earlier occasion I

stated my conclusion that her statement was voluntary, with reasons to follow. These are those reasons. INTRODUCTION [2] Over a two-day period, J.C. was repeatedly sexually abused. The accused, Ms. D., and her husband, Mr. S., have been chargedwith numerous offences relating to the abuse. Mr. S. has pled guilty to some of the offences; Ms. D. has proceeded to trial. [3] The Crown seeks to have a statement given to the police by Ms. D. while she was in custody after her arrest admitted intoevidence at her trial.

The defence objects to the statement being admitted on the basis that the Crown has failed to establish beyond areasonable doubt that it was made voluntarily. What follows are my reasons why the statement ought to be admitted at trial. OVERVIEW [4] From November 9 to the 10, 2014, J.C. was confined and repeatedly abused. Shortly after gaining her freedom, she provideddetails of her ordeal to the police. Mr. S. and Ms. D. became suspects as a result. On November 12, 2014, Mr. S. was arrested. Later thatday, at approximately 5:10 p.m., Cst. Arrowsmith of the Surrey RCMP arrested Ms. D. Ms. D. was in Cst.

Arrowsmith's custody untilshe was lodged in a cell at the Chilliwack RCMP detachment shortly after 6:00 p.m. During that time, the following took place: Ms. D.was advised of the offences she was being arrested for and her Charter rights, including her right to silence, all of which she claimed tounderstand. Ms. D. told Cst. Arrowsmith that she was expecting to be arrested, and that if it had not happened soon, she intended to turnherself in; further, that she had plenty of experience in the criminal justice system and asked questions revealing a familiarity with arrestand custody protocol. In Ms.

D.’s words, "I've been to jail a lot," and "It's just a vacation for me." [5] Ms. D. said she consumed a little bit of alcohol before her arrest and was coming off heroin and a lot of crystalmethamphetamine. She also said she gets nauseous and dizzy without her glasses, which were taken away from her while in custody. [6] Ms. D. told Cst. Arrowsmith that she takes medication for depression, diabetes, and anti-psychotic medication. She said shewas not having any symptoms of her diabetes, but expressed concern about not having her insulin with her. In her words, she describedherself as "kind of freaking out".

Despite this characterization, there was nothing observed by Cst. Arrowsmith or apparent in the audiorecording of the interaction between them that suggested Ms. D. was "freaking out" as that expression would commonly be interpreted.She was told that any medication she needed would be obtained for her. She was not exhibiting any symptoms of her other ailments. Ms.D. was joking with Cst. Arrowsmith and pleasant at times. She said she felt safer in police custody than out. [7] At approximately 8:02 p.m., Cpl. Stewart arrived at the Chilliwack RCMP detachment to transport Ms. D. to the Surrey RCMPdetachment. Cpl.

Stewart attempted to provide Ms. D. with a secondary caution that no previous threat, promise, or inducement by anypolice officer was valid or should be relied upon. In the course of doing so, Ms. D. finished Cpl. Stewart's statement of the caution,indicating that she was well-versed that any such incentive to provide a statement was not to be relied upon. [8] Cpl. Stewart and Ms. D. developed a friendly relationship. Ms. D. expressed the same concern expressed to Cst. Arrowsmithabout needing her insulin. She said she did not need it now but maybe later. According to Cpl. Stewart, Ms.

D. said she was "freakingout" without it, although Cpl. Stewart, like Cst. Arrowsmith, felt she was not acting as though she was "freaking out". Cpl. Stewartmanaged to retrieve Ms. D.’s insulin in her purse from a tent in the woods where she was staying. Cpl. Stewart was familiar with diabeticsymptoms, but noted none in her dealings with Ms. D., nor did Ms. D. complain of any symptoms. [9] They left for Surrey around 9:41 p.m., stopped for take-out food for Ms. D., and arrived at Surrey around 10:45 p.m. Ms.

D.was cooperative with the booking process and took the initiative at times in the fingerprinting process, further demonstrating that shewas well-experienced with being in police custody. [10] Ms. D. spoke of her long-standing addiction to heroin and crystal methamphetamine. She said she had a small amount ofalcohol and drugs earlier in the day, but was fine. Cpl. Stewart testified that she had a lot of experience with people intoxicated by drugs,and that Ms. D. was not showing any symptoms of drug intoxication. Nevertheless, she was taken to the hospital for medical clearance asa precaution, despite Ms.

D. feeling there was no need to go. Upon her return, Ms. D. was lodged in cells. [11] The statement at issue was provided the next morning, November 13, 2014. Ms. D. had already spoken to counsel the nightbefore. Ms. D. was brought from her cell to an interview room at the Surrey RCMP detachment. The statement started at approximately9:15 a.m. with Cpl. Badyal, and ended at approximately 2:35 p.m. with Cpl. Brown, who spelled off Cpl. Badyal partway through. Thestatement was audio and video recorded.

There was no suggestion that anything done by the police leading up to the statementcompromised its voluntariness; rather, challenges to the voluntariness of the statement are based on what happened during the interview. [12] At this juncture it is worth setting out the applicable law to provide context to the analysis that follows. Counsel are agreed onthe law, so I will do no more than summarize it in these reasons. THE LAW [13] In protecting the voluntariness of confessions, the court engages in a balancing exercise of the rights of an accused and society'sneed to investigate and solve crimes.

Considerations include the possibility of false confessions and maintenance of the integrity of thejustice system (R. v. Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3). The burden is on the Crown to establish voluntariness beyond areasonable doubt. To do so, it must establish that the accused possessed an operating mind at the time of the confession, and that theconfession did not result from the accused's will being overborne by threats, promises, inducements, oppressive circumstances, or policetrickery. The focus is on the conduct of the police and its effect on the accused's ability to exercise her free will.

Whether the policeintended to provide an inducement or make a promise or threat is irrelevant. As mentioned, it is the effect of the threats, promises orinducements that is important. It follows then that there must be a causal link between the conduct of the police and the statement for itto be involuntary. (Oickle) [14] The analysis is contextual in that all of the circumstances must be considered together. These include the unique characteristics

of the accused and the effect of a particular inducement or combination of the above-mentioned considerations on an accused. The test isobjective, taking into account the individual characteristics of the accused. (R. v. Singh, 2007 SCC 48 , [2007] 3 S.C.R. 405.) I. INDUCEMENTS [15] Inducements have been defined as a benefit or other consideration of value to an accused, promised or held out in return for aconfession; quid pro quo offered expressly or impliedly by the authorities (Oickle; R. v. Heatley, [2015] B.C.J.

No. 1675 (CA)). [16] Not all inducements; however, alone or in combination with other circumstances, will render a statement involuntary. In Oickle,Mr. Justice Iacobucci stated at paragraph 57: In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Fewsuspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect thatit is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combinationwith other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. [17] In R. v.

Spencer, 2007 SCC 11 , [2007] 1 S.C.R. 500, the court emphasized that the strength of the inducement must besufficient to overcome the will of the accused. As stated in the headnote: A promise renders a statement involuntary only if the quid pro quo provides a strong enough inducement to raise a reasonable doubtabout whether the will of the suspect was overborne. Accordingly, while a quid pro quo is an important factor in establishing theexistence of a threat or promise, it is not, by itself, determinative.

It is the strength of the inducement, having regard to the particularindividual in his or her circumstances that is to be considered in the overall contextual analysis into the voluntaries of the accused'sstatement. II. OPPRESSION [18] With respect to oppression, the court has to be mindful of the possibility of a confession made to improve intolerable orextremely uncomfortable conditions. III. OPERATING MIND [19] As for an operating mind, the accused who makes a statement must be aware of what they are saying, and that the police canuse it to their detriment. (Oickle and R. v. Whittle, [1999] 2 S.C.R. 914.) IV.

POLICE TRICKERY [20] Regarding police trickery, there is no suggestion of police trickery in this case, so I will not discuss the law relative to it in thesereasons. V.

SUMMARY [21] In the end, a court must consider the individual categories of considerations mentioned above, but also the cumulative andoverall impact of the various police techniques and strategies employed. As summarized in Oickle at paragraph 68: First of all, because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible ifit is made under circumstances that raise a reasonable doubt as to voluntariness.

Continuing on later in that paragraph: If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce anunreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operatetogether to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision. I have instructed myself according to these principles. DEFENCE OBJECTIVES TO VOLUNTARINESS [22] On behalf of Ms.

D., it is argued that she did not have an operating mind at the material time in her statement for a variety ofreasons. Those include the nature of her relationship to Mr. S. and an alleged inducement made by Cpl. Brown of Ms. D., making arecorded message to Mr. S., and viewing aspects of a video-taped statement to the police that he provided. It is further argued that anoppressive environment was created from the length of the interview, over five hours, and ignoring Ms. D.’s desire to further speak to hercounsel, return to her cell, and not talk. It is argued that the oppression was compounded by Cpl.

Brown developing the theme of Ms.D.’s own victimization from Mr. S. in order to put psychological pressure on her, all while she was cold, tired and withdrawing fromcrystal methamphetamine. ANALYSIS OF THE STATEMENT

i) Relevant Pre-Statement Evidence [23] Relevant pre-statement evidence includes that Ms. D. intimated that she was expecting to be arrested and comfortable being inpolice custody. Her arrest was no surprise and she was prepared for it. She had a familiarity with what would follow her arrest, she waswell-versed in police procedures and experienced in being arrested and jailed. She knew the secondary caution by heart. She understoodher jeopardy and exercised her right to counsel.

She exhibited no overt symptoms of any of her health challenges, and I also bear in mindher characterization of her mental state as "freaking out" when, to the officers who observed it, it appeared to be perhaps descriptive of

anxiety but an exaggeration of the extent of it. ii) The Statement [ 24 ] With respect to the statement itself, Ms. D. was somewhat familiar with the limits on police powers in addition to the other aspects of being in police custody that I have already mentioned. a. Cpl. Badyal [ 25 ] The first approximately hour and 45 minutes of the interview was conducted by Cpl. Badyal. [ 26 ] Cpl. Badyal set a sympathetic tone to the interview and tried to cater to Ms. D.’s physical needs, short of allowing her to return to her cell or speak to counsel. Despite saying she was "freezing", Ms.

D. denied an offer of a blanket from Cpl. Badyal. She was given food and coffee. [ 27 ] Ms. D. repeatedly asked to return to her cell, and fewer times to speak to her lawyer. She was told she did not have to say anything and would eventually end up back in her cell. At one point Ms. D. started crying during this time. Shortly after Ms. D. said she was prepared to listen and pay attention for the two hours that Cpl. Badyal mentioned she may be interviewed so that she can go back to her cell, but she was not prepared to talk. [ 28 ] Ms. D. spoke to Cpl. Badyal when she decided to speak.

When she did speak, she had no difficulty challenging Cpl. Badyal's assertions. She admonished Cpl. Badyal at times for not moving the interview along so she can return to her cell. She was belligerent at times, and repeated that she did not care what Cpl. Badyal had to say. Although not in physical control of her surroundings, Ms. D. appeared to be in control of the interview while it was being conducted by Cpl. Badyal. [ 29 ] Ms. D. told Cpl. Badyal that the only thing she cared about was how much jail time she was likely to receive. Ms.

D. insisted that she was going to jail for the present offences, and giving her side of the story was not going to change anything or result in a reduction of her sentence. Nothing Cpl. Badyal said conveyed that speaking about the offence would reduce the amount of time Ms. D. would likely spend in jail. This would have been the type of powerful inducement contemplated in Spencer had it occurred, but it did not. b. Cpl. Brown [ 30 ] Cpl. Badyal left the room and Cpl. Brown took over at approximately 11:00 a.m. until the conclusion of the interview at approximately 2:35 p.m.

He too took a sympathetic approach with Ms. D. in the interview. [ 31 ] In the first half of her time with Cpl. Brown, and prior to making any incriminating statements, Ms. D. demonstrated she was not afraid to challenge and contradict Cpl. Brown when she did not agree with him. Much like with Cpl. Badyal, she was assertive at times, occasionally admonished Cpl. Brown, and was at times belligerent, sarcastic and mocking. She repeated that she did not care what he had to say. She got perturbed when told she was not going to her cell and that Cpl. Brown was not going away.

Shortly after, she willingly engaged in a discussion about prostitution and drug dealers, and, in fact, told Cpl. Brown to have a drug investigator come to the interview room. In the course of this conversation, however, she did start crying. [ 32 ] About a half to three-quarters of the way through the interview, Cpl. Brown brings up Mr. S. Ms. D. tells Cpl. Brown that "pushing her buttons" about Mr. S. is not going to do anything but "shut her down" and make him less successful in getting useful information.

Later she said she is glad the police have obtained other evidence so she does not have to say anything in the statement, and that she is not answering questions "on the grounds it will incriminate me". [ 33 ] It is clear from these comments that Ms. D. knew throughout this aspect of the statement what the police objective was, and that was to obtain evidence against her and/or Mr. S. that the police can use to her detriment. Further, it is clear that she knew she did not have to talk. This is further illustrated when she was asked if she was okay with what Mr. S. did to J.C.

She said, "Yeah, I'm not answering that. That's a nice try though. Thanks for slipping that in there but it's not gonna happen." It was not long after these exchanges that Ms. D. made incriminating statements that will be discussed below. [ 34 ] It did become clear when Mr. S.'s name was mentioned as the interview progressed, that Ms. D. was loyal and devoted to Mr. S. and did not intend to incriminate him. Furthermore, at one point she said that he was all she cared about. c. Oppressive Circumstances [ 35 ] With respect to oppressive circumstances, Ms.

D. was not deprived of food, clothing, or use of the washroom, and did not require medications. There was no manifestation of any of the mental health concerns Ms. D. may have had requiring medical treatment. With the exception of allowing her to sleep, her other needs were accommodated. She was offered a blanket which she refused, and a sweatshirt later when she said she was cold for the first time since refusing the blanket. She was allowed to smoke a cigarette later at her request. [ 36 ] Ms. D. was coming off crystal methamphetamine during the statement.

She described her symptoms as having a bit of a temperature, but hungry and getting progressively more tired, saying she wanted to sleep, and, in fact, was going to go to sleep. She was provided food and the drink of her choice; however, refusing her desire to sleep and her lack of sleep, I find did not reach the point of becoming an intolerable discomfort to the point where, on its own or in combination with other factors, her will was overborne. [ 37 ] Moving to the interview questioning, there was no manipulative variation between hard and soft techniques employed. Ms.

D. was not subjected to aggressive, hostile, or intimidating questioning for a prolonged period of time, and had not been confronted with fabricated evidence. She had; however, been subjected to the interview for over five hours which is a long time. [ 38 ] Prior to the incriminating aspects of her statement, Ms. D. told Cpl. Brown to "just keep talking and I'll just sit here". She

repeatedly told Cpl. Badyal and Cpl. Brown that she was not talking and had nothing to say and wanted to be returned to her cell. Despite this, both Cpl. Badyal and Cpl. Brown made clear that she was going to remain in the interview until they decided she could leave, but that it would not be any time soon. [ 39 ] The court must guard against this tactic by the police, rendering Ms. D. feeling that continued resistance to providing a statement was futile, and that she had no meaningful choice but to speak to the officers about the offences.

As stated by Chief Justice McLachlin in Singh at paragraph 47 : …Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities…. I am very much alive to this risk; however, I find that Ms. D. demonstrated throughout the interview that she understood that she did not have to speak to the police and maintained an ability to decide whether or not she would.

In other words, I do not find that Ms. D.’s freedom to choose whether to speak to the police was overborne by this tactic. d. Inducements [ 40 ] With respect to inducements, Ms. D. reiterated to Cpl. Brown her belief that talking to the police would not have any effect on her situation and how long she would be in jail so she was not talking. She said being in jail was her only real concern. This was earlier in her statement while being interviewed by Cpl. Brown. Like Cpl. Badyal, Cpl. Brown said nothing that can be considered an inducement relating to the amount of jail time that Ms.

D. would serve. [ 41 ] The incriminating aspects of Ms. D.’s statement take place during the last quarter of it. Shortly before, she was obviously distraught and at times in anguish. She screamed loudly at one point and was crying. She said she was "freaking out" and "three seconds away from having a mental breakdown", and that she wanted to die. At other times she said she was heartbroken and hurt badly, and was in deep pain combined with anger.

Mixed with these declarations, however, is a combination of incriminating statements, demonstrated awareness of her rights, attempts to use the interview for her own emotional purposes, and knowledge of the limits of police inducements. The following references to her statement demonstrate this. [ 42 ] Moments after making the comments about "freaking out", "having a mental breakdown" and wanting to die, but before making incriminating statements, the following exchange between her and Cpl. Brown took place, initially referring to Mr. S.

This is from page 137, line 2577 of the transcript, to page 141, line 2653: Cpl. Brown: You have too much to live for. Ms. D.: I want to, I just -- the one thing I want you can't give it to me. Cpl. Brown: What's the one thing you want? Ms. D.: I wanna talk to him. I won't -- want to talk about anything, anything to do with the case or anything like that, I just want him to see, I just want him to see… At this point Ms. D. is crying. Cpl. Brown: You know what I can do, [G.]? Obviously you know that there's no way my boss will allow -- Ms. D.: I know that. I mean, whatever. Cpl. Brown: I know. Ms. D.: I know that.

Cpl. Brown: But I can if you want to say a message to him, I can get that message played to him. You can say just whatever you want. It's all you have to do is look right at the camera if you want to, and you can say exactly what you want to say to him and I'll make sure he gets it. Ms. D.: No. Cpl. Brown: Okay. Well, that's the only thing I could do for you. Ms. D.: I wanted to see how much of my pain hurts him. That's what I want, because I know it does. Cpl. Brown: Why is it going to hurt him? Ms. D.: Why? Cpl. Brown: Yeah. Ms. D.: Because that's the only thing that does hurt him. Cpl.

Brown: If you're in pain? Ms. D.: Yup.

Cpl. Brown: Why are you in pain? Did he make you do this? Ms. D.: Not answering your question. Cpl. Brown: Well, I'm just trying to understand why you're in pain, [G.]. If you are in -- Ms. D.: I've been in pain my whole life. Cpl. Brown: I know, but [P.] didn't cause that pain. Ms. D.: No. Cpl. Brown: So why? Ms. D.: The last 15 years. Cpl. Brown: What pain has he caused you in the last 15 years? Ms. D.: Not answering that either. I love him so much. Cpl. Brown: I know you love him absolutely, and he loves you. Ms. D.: I'm done talking now. I'm done. Cpl. Brown: Take a break. Ms. D.: No, I'm done. Cpl.

Brown: You don't have to be. Ms. D.: I'm done. Cpl. Brown: Um, you never had to talk. Ms. D.: If he wants to talk, fine, let him talk. You don't need to hear it from me. You can get it from him. Cpl. Brown: Well, I need to hear your side. Ms. D.: No you don't. Cpl. Brown: I need to -- Ms. D.: You don't need to hear anything from me ever. Cpl. Brown: With you I can. Ms. D.: No you don't. Cpl. Brown: I did. Ms. D.: I don't care. You want to hear it, hear it from him. Cpl. Brown: You know what? You have a story to tell. Ms. D.: No, I don't. Cpl.

Brown: You can choose not to tell it, but you have a story to tell, that's all I'm saying, [G.]. It's your choice. Ms. D.: Whatever. Cpl. Brown: Well, it's your choice. Ms. Davis is crying at this point, and Cpl Brown says: But I do think you're going to feel better. Ms. D.: No I'm not. Cpl. Brown: I do think that. Ms. D.: No I'm not. Cpl. Brown: Why would -- Ms. D.: I'm going to be, like, exactly the same way I feel right now.

Cpl. Brown: Well, obviously you have something to tell him. Ms. D.: Yes, to tell him, not a whole bunch of other people. Not telling, I'll sit here and wait and bide my time until I can see him and tell it to his face. Cpl. Brown: Okay. He goes on to say: [P.] feels bad for what has happened to [J.C.]. And Ms. D. says: That's good. Good for him. I'm glad. [ 43 ] A number of things stand out from this exchange. Ms. D. is clearly emotionally distraught. Nevertheless, she had the presence of mind to consider, without prompting, the likely concern the police would have with her speaking to Mr.

S. while they are in custody. She tells Cpl. Brown she will not discuss the case with Mr. S., presumably aware that the police would be concerned that such a conversation could potentially compromise their investigation. She also conceded that she knew that the meeting could not be arranged. [ 44 ] When Cpl. Brown suggested that she get a message to Mr. S. through the video recording of her statement, I find it is not a quid pro quo arrangement. He does not say, nor in the context of it imply, that he will only do it if she talks. There were no such conditions attached. Ms. D. refused Cpl.

Brown's suggestion of a video message in any event, because it would not have suited her emotional need to see how much her pain hurt Mr. S. After that, Ms. D. repeatedly refused to answer Cpl. Brown's questions, showing she still had an operating mind and the ability to choose whether to make a statement. Finally, Cpl. Brown made it clear that telling her story was a "choice" that she had. [ 45 ] At page 142, line 2663 to 2676, this exchange took place: Ms. D.: Go away. Go away. Go away. I don't trust you when you say [P.] is talking. Cpl. Brown: Okay. And thank you. Ms. D.: I don't trust you for that. Cpl.

Brown: [G.], I -- first of all, I thank you for telling me that because I want you to know that I'm not going to lie to you, and what I need to do -- Ms. D.: Doesn't matter. I don't trust you. Cpl. Brown: Okay. I'm gonna -- I'm gonna go get a clip, you can actually get a clip so you can see that he's talking to them. I don't want you not to believe me, and I want to show you that if I say something it's the truth. Ms. D.: Okay. Cpl. Brown: Okay? Ms. D.: That would help. [ 46 ] This video clip that is referred to, and others of Mr. S.'s statement, becomes something that Ms.

D. fixates on as something that she is anxious to view. Ms. D., in the course of this discussion, is distraught and becomes increasingly distraught. From this point in her statement, Ms. D. repeatedly requests to see clips of the statement of Mr. S. It is clear from this exchange that Cpl. Brown offered to show her the video clip of Mr. S. giving a statement to maintain trust as part of the rapport he was trying to cultivate with Ms. D., as opposed to an inducement. I acknowledge that the intention of Cpl. Brown is not determinative of whether there was an inducement; rather, it is the effect on Ms. D.

However, I find that there was no quid pro quo here, nor was the effect, if it was perceived as some sort of inducement, was sufficient to render, alone or in combination and in context of the statement, render the statement involuntary. [ 47 ] Ms. D. declared that she was in great emotional pain but insisted on watching the first video clip. Part of the video is played of Ms. S.'s statement, a clip of it. After watching it, Ms. D. had this exchange with Cpl. Brown, after which she provided her incriminating evidence that the abuse was her idea and that she had facilitated it for reasons that I will not repeat.

At page 148, line 2768, to 151, line 2821: Ms. D.: Okay. Where's the part where he's talking about [J.C.] and how sorry he is, that he wished it didn't happen, right? 'Cause I know he -- Cpl. Brown: Okay. Ms. D.: -- and usually was going to go over this. Cpl. Brown: Okay. But I want you to hear the part -- He then plays the video clip, and says: Okay, we're talk --

Ms. D. says: Okay. Cpl. Brown: Well, he's gonna -- I don't want to do -- prior to the thing here that we have to be careful is he's not telling your story. Ms. D.: No, I know that. Cpl. Brown: So? Ms. D.: I just wanted to -- Cpl. Brown: Because I don't -- Ms. D.: -- hear that part because -- Cpl. Brown: He's -- okay, because -- so what -- Ms. D.: Because where he had -- where he's aware of it. I want to hear what he had to say about that, of how he was aware, but how he felt about it. I want to hear -- Cpl.

Brown: Well, he doesn't say how he feels about it in this clip, but he -- the clip I wanted to play here -- Ms. D.: Okay. Cpl. Brown: -- is the clip of the, um, the apology letter, and I -- Ms. D.: Oh, he did an apology letter? Fuckin' piece of shit. Cpl. Brown: Why? Ms. D.: 'Cause he fuckin' never written me one. Cpl. Brown: Maybe I should go get him to fuckin' write you one, 'cause maybe -- Ms. D.: Yeah, you fuckin' should. Then they bumped fists. And then Cpl. Brown: 'Cause maybe you're the one who actually deserves it? Ms. D. cries and then says: You may press play. Cpl.

Brown: Um, the only -- they only put the one on here. I gotta -- the CD only has the one. I gotta go get the other one right now. They -- it only has the one clip. They need to put it on the, um, one more, so I'm gonna go get that next clip, and um -- Ms. D.: Yeah, I wanna hear this. This I really wanna hear, 'cause it'll all send me over the edge and we can go and have a cigarette. Cpl. Brown: Oh, no, no. Ms. D.: And everything, and I can tell you everything and you'll be happy. And I want a sweatshirt. Cpl. Brown: A sweatshirt? Ms. D.: And then we -- sweatshirt and a cigarette, and I'll like -- Cpl.

Brown: Do you smoke? Ms. D.: Yes, I do. Cpl. Brown: Okay. But I think what's important for you to know that I'm going to get that clip, but I want you to know, [G.], is that I don't want to do -- Ms. D. is crying. Cpl. Brown: Oh, sweetie, I'm gonna go get you a cigarette, [G.]. Ms. D. continues crying: Cpl. Brown: Because I'm going to get you a cigarette regardless whether you tell me anything, okay? [ 48 ] From this exchange it is apparent that Cpl. Brown is not holding out the video clip of Mr. S. writing his apology as an inducement or a quid pro quo . Same for the cigarette. Rather, it is Ms.

D. who asks to see that part of the video for her own emotional purposes. In her words, "Yeah, I wanna hear this. This I really wanna hear because it'll send me over the edge." She goes on to say, "And

we can go have a cigarette and everything, and I can tell you everything." This is an offer by Ms. D. to talk once she has seen the video, rather than a condition placed on her by Cpl. Brown for seeing the video. [ 49 ] Her comments that seeing the video would "send her over the edge" and "I can tell you everything and you'll be happy," must be considered in the context of her earlier descriptions of "freaking out" and "freezing" and considered whether they are slang words for strong emotions, but perhaps overstating the emotion such that it falls short of indicating an absence of an operating mind.

Or, it could mean over the edge in terms of moving her from not cooperating to motivating her to talk. It is not entirely clear in that aspect, but I do not find that it is indicative of an absence of an operating mind. [ 50 ] Ms. D. also asked for a cigarette and sweatshirt, and Cpl. Brown makes clear that the cigarette should not be seen by her as an inducement for her to talk. It is clear Cpl. Brown is well aware that a quid pro quo offer should be avoided, and again, I stress that I appreciate it is the effect on Ms. D., not the intention of Cpl. Brown; nevertheless, Cpl.

Brown's awareness provides some context. [ 51 ] It is after this exchange that Ms. D. gives the majority of her inculpatory evidence. While doing so, and while clearly emotionally distraught, Ms. D. makes clear that she understands the concept that inducements by the police to talk are improper. This exchange takes place at page 160, line 2999 to line 3008: Ms. D.: And I'll tell you some more if you go get that cigarette. Cpl. Brown: Well remember -- Ms. D.: I know, I know. I don't have to tell -- Cpl. Brown: But I know -- Ms. D.: -- you anything in order to get the cigarette. Cpl. Brown: I know.

I'm going to get you the cigarette, but yeah, don't tell me something because -- because I'm getting you a cigarette. Ms. D.: I already know that. I'm just -- Cpl. Brown: You need -- Ms. D. : -- telling you it because I needed to tell you. [ 52 ] Ms. D. demonstrates that she knows the provision of the cigarette does not require her to talk, and I infer that she understood the concept of police inducements and that it also applied to the video clip she wanted to see.

It is worth repeating her earlier comments about the secondary police caution that she knew by heart, and her familiarity with being in police custody. Further, this exchange also sheds light on the true reason that she confessed when she said, "I'm just telling you it because I needed to tell you." I interpret this to mean that she confessed for her own reasons internal to her as opposed to it being forced out of her by police threats, promises, inducements or oppression. [ 53 ] A short time later, Ms.

D. reverts, as she was entitled to do, to exercising her right to silence and repeating that her only real concern was the amount of jail time that she would serve. This exchange took place; page 166, line 3113, to page 167, line 3129: Cpl. Brown: So when did things start to go a bit sideways? Ms. D.: I don't know. I just slept. I blocked it when she was there. Don't blame me, it's going to be here for a few years. Cpl. Brown: Well, I don't want to blame anybody. It's not about blaming. I'm just trying to understand why it happened. Ms. D.: It happened because I snapped. It happened because I just lost it. Cpl.

Brown: So what did you say to her? Ms. D.: I didn't say anything, it just happened. Cpl. Brown: So what did you do then? Ms. D.: Didn't matter. None of the -- none of the -- none of the details matter. Cpl. Brown: Well, they do matter, actually. Ms. D.: Um, doesn't matter. I'll be -- sit in my little cell for a little while, so what happened, happened. Ms. D. goes on to say: Let's deal with it and then whatever, it's over. Right now the only thing I'm concerned with right now is just waiting 'til this is over. I'll just wait. Same strange vacation that way. Later down on page 167, line 3140: Ms.

D.: Mm, I don't wanna talk about it. I'm done. Think I wanted to see that fuckin' still want apology from [P.], it makes him feel a little better along the way.

At page 168, line 3155 to 170, line 3197 this exchange takes place: Cpl. Brown: Besides your house, where else did it occur? Ms. D.: I'm not talking about it. Cpl. Brown: Why aren’t you talking about it? Ms. D.: 'Cause I don't want -- I don't have feeling anymore. Cpl. Brown: You never had to begin with. Ms. D.: I know, but I don't want to anymore. Cpl. Brown: I know it's hard to talk about. Ms. D.: No it's not, I just don't want to. Cpl. Brown: Well, I think an apology letter would go a long way though. Ms. D.: Yeah, I'll do that for you, and it'll be real, just won't be a few words.

I'm -- I'm a writer by heart. Cpl. Brown: Are you? Ms. D.: Yeah, I write. Cpl. Brown: And then? Ms. D.: And when you read it you'll -- you'll realize that it's real, not just making shit up and putting it on paper. Cpl. Brown: Okay. I'll go get a pen. When the door opens for Cpl. Brown to leave, Ms. D. says: And the clip, get the clip. Cpl. Brown: Yeah. Ms. D.: And the clip, get the clip. Cpl. Brown: Of him writing the apology letter? Ms. D.: No, of -- yeah, of the apologies. I wanted to -- Cpl. Brown: Well, he writes an apology, right? So he doesn't, like you, he wrote an apology.

We actually don't read the apology, the apology letter goes to [J.C.]. Ms. D.: Okay. Cpl. Brown: So we bring in an envelope -- Ms. D.: Mm-hm? Cpl. Brown: -- and you put it in the envelope and, um -- Ms. D.: Well, I want an apology clip. She chuckles at this point. Cpl. Brown: Okay. Ms. D.: From him. Cpl. Brown: Oh yes, well, he deserves -- you deserve to have one from him, absolutely. Ah, anyways, I'll get the piece of paper. Ms. D.: Yes. Make -- better make it a couple. I'm a really good writer. Cpl. Brown: You're a good writer. Ms. D.: I'm a good writer.

Bring me -- better bring me a pad. [ 54 ] This latter passage shows, in my view, that Ms. D. still has meaningful control over what she is saying and does in the course of the interview. She disagreed with Cpl. Brown without hesitation, that talking about the events was hard. She decided she will no longer speak to Cpl. Brown about the events, but agreed to write an apology letter to J.C.; in fact, she appeared to relish the opportunity. [ 55 ] Toward the end of her statement Ms. D. said that they wanted to get caught, she explained various things that they did not do to

cover their tracks, as evidenced by her handing over the tent and its contents to Cpl. Stewart when she knew it contained valuable evidence. Toward the end of the interview, Ms. D. asked to make a video for Mr. S. to see, and wrote a letter to Mr. S. [ 56 ] In

summary, there is no question that Ms. D. harboured very intense feelings for Mr. S. to an extent that she was emotionally vulnerable when talking about her relationship with him. However, I do not find that the police abused this vulnerability when considered in context of their entire dealings with Ms. D.

The police did not provide a strong enough inducement to render her statement involuntary, and thus inadmissible on this basis, nor did it apply unbearably oppressive, emotional pressure when considered in combination with her other personal characteristics and the other circumstances of her dealings with the police. Nor do I find that she lost control to the extent that she no longer had an operating mind. [ 57 ] Ms. D.’s confession was largely self-generated in that she was motivated by emotional considerations unique to her relationship with Mr. S.

She wanted him to apologize to her, she wanted him to know how much she hurt. These were some of the considerations that were important to her, irrespective of the police conduct. At a certain level, the interview became an opportunity to fulfil her emotional needs relating to Mr. S. [ 58 ] The passage from R. v. Rennie quoted in Oickle at paragraph 57 comes to mind: Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence.

If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority.

More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. 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. This passage resonates as it relates to what I find to be self-generated reasons for making a confession, which is what I find took place here. [ 59 ] In terms of an operating mind, I am satisfied beyond a reasonable doubt that Ms.

D. was aware throughout of what she was saying and understood the detrimental consequences of saying it. [ 60 ] In conclusion, when all required considerations are made on all of the evidence, I am satisfied beyond a reasonable doubt that Ms. D. provided her statement voluntarily. It is therefore admissible at her trial. (RULING CONCLUDED)