R. v. ASSINIBOINE, 2016 MBPC 9

CITATION: R. v. ASSINIBOINE, 2016 MBPC 9 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Scott Cooper and Alanna Littman ) for the Crown ) and ) ) ) ASSINIBOINE, Valerie ) Greg Brodsky and Matthew Gould ) for the Accused ) ) ) ) Reasons for Decision delivered: ) February 12, 2016 CORRIN, P.J.

PREAMBLE [1] This is a voir dire decision respecting the voluntariness of a statement made by the accused to police interrogators after herarrest for murder. [2] It is also noteworthy that unlike the situation in the United States, a police interrogator in Canada does not have to stopquestioning when a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent”[Miranda v Arizona, 384 U.S. 436 (U.S. Supreme Court 1966) at page 473]. In Canada, suspects are powerless to end theirinterrogation.

Assumedly this is why Canadian legislators, in 1981, enshrined an accused persons’ right to both consult counsel andremain silent. [3] It is now established law that a confession found to be voluntary for the purposes of the common law can nonetheless also befound to have be obtained in violation of

section 7 of the Charter and therefore potentially excluded from evidence as not prescribed bylaw pursuant to a section 24(2). However, since this subject matter arises in the context of a preliminary inquiry, I am unable to alsoconsider the matter in the context of

section 7 of the Charter – a detainee’s constitutional right to remain silent when confronted bypolice investigators. VOLUNTARINESS [4] A statement to a person in authority is not admissible unless the prosecution establishes beyond a reasonable doubt that thestatement was voluntary. The modern confessions rule was set out by the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, 2000 S.C.C. 38, [2000] 2 S.C.R. 3. The analysis must be a contextual one.

The Court recognized that there are several factorsto consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authorityincluding whether or not there were any threats or promises made, whether there was an atmosphere of oppression, whether the accusedhad an operating mind when he made the statement, and whether any police trickery was involved in obtaining the statement.

Threats orpromises, oppression and the operating mind doctrine are to be considered together and should not be understood as a discrete inquirycompletely divorced from the rest of the confessions rule. The use of police trickery is a distinct inquiry given its more specific

objective of maintaining the integrity of the criminal justice system. ( See, also, R. v. Spencer , 2007 SCC 11 , [2007] 1 S.C.R. 500 ). In summarizing the confession rule in Oickle , Iacobucci, J. said, at para 68: While the foregoing might suggest that the confession rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all, because of the criminal justices system’s overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness.

Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision. ANALYSIS [ 5 ] The Crown submits that it has proven beyond a reasonable doubt that Ms.

Assiniboine’s statement was voluntary. The Crown contends that the police treated the accused appropriately, that she had an operating mind, that there were no threats, promises or oppressive police conduct and no police trickery involved. The circumstances surrounding the confession, the Crown argues, do not raise a reasonable doubt as to its voluntariness or that the accused’s will was overborne. [ 6 ] The defence’s position focussed on Ms. Assiniboine’s will being overborne by misleading and overbearing interrogation techniques which included improper inducements.

THE INTERVIEW [ 7 ] The Crown called both the interviewing investigators as witnesses. The accused chose not to testify. [ 8 ] Shortly before the videotaped interview, the accused met with her lawyer, Mr. Brodsky. It is clear that the accused initially asserts her right to remain silent when confronting questions posed by the officers. She says: “I don’t want to say anything.” and “I don’t want to talk about this.” She asks that the interview be terminated: “I don’t want to say anything. Like I said, I’ll talk to my lawyer and that’s it,” “I just want to talk to a lawyer about this...

So where will I be going tonight, the Remand?” The questioning nevertheless continues. It is polite but persistent. She continues to tell the officers she does not want to say anything. After they have been at loggerheads for a while, Ms.

Assiniboine asks Detective Sergeant Riddell for advice: “Do I have to talk about this?” He replies: “I think it’s important.” His response is somewhat misleading as it suggests that she is not only obliged to endure reasonable police questioning but also to discuss the matter with the officers. [ 9 ] The accused starts to open up right after this, just twelve to fifteen minutes into the interrogation.

She talks about her relationship with the deceased, at one point acknowledging that the police “might use that against me,” “you guys are going to put me away for something.” Detective Sergeant Riddell responds by reminding her, not for the first time, “...we gather evidence.” Notwithstanding Riddell’s explicit warning, the accused continues to discuss details of her relationship with the officers, who remain patiently persistent and also courteous. At this point, Ms.

Assiniboine vents frustration about her relationship with the deceased, alleging that he had taunted her about being unfaithful to her even though “he knew I loved him.” She then relates that she had also been physically abused by the deceased during their relationship. [ 10 ] After approximately one-fifth of the interview has passed, Riddell cuts to the chase, asking the accused what happened on the last night she saw the deceased alive. She tells him she does not want to talk about it. He asks her if they fought that night.

She responds: “...I know it’s important but you guys just want to use it against me in court.” She is reminded shortly after this exchange that she has been arrested for the deceased’s murder and they are giving her “an opportunity to put us there and to tell a story of what happened.” She is reminded that they are of the view, on the basis of their lengthy investigation, that she committed the homicide – a reminder of her jeopardy.

Detective Sergeant Stalker tells her “the only thing Myles and I want from you today is the truth, nothing else... what we need to do is bring the case to the courts...it’s your story to tell”... “Tell us about what led to it.” Ms. Assiniboine then asks if she is allowed to talk. “My lawyer,” she recollects, “said not to say too much .” The obvious logical implication being that she was told to discuss only some aspects of the subject matter with the officers.

Riddell replies: “I think he would like you to explain yourself,” a conclusion which is consistent with her recollection – that she was told she should not “say too much ,” not that she should not say anything. The accused then responds: “I could tell a bit .” Riddell’s comment to the accused is alleged by defence to have effectively negated the purposes and legal objectives associated with the prior conferral of her rights to consult counsel and remain silent.

I will therefore revisit this again later in these reasons for decision. [ 11 ] Soon after, she begins to weep and states: “I don’t want to go away for a long time,” a seeming admission of guilt or at least a remark suggestive of such an inference. Riddell, reminding her that such jeopardy is a distinct possibility, frankly replies: “...that’s what we’re talking about here.” The accused then volunteers: “The more that I think about it, I should have left him alone.” The Court construes this observation to be suggestive of an admission of guilt.

After that, there is some further to and fro between the officers and the accused about moral obligation and doing ‘the right thing’ and telling the truth and Riddell once again asks her to recount what happened on the last night she spent time with the deceased. The accused responds with a question of her own, one that suggests that her response will be exculpatory rather than inculpatory: “Do I really have to tell you guys? I heard people telling me the cops are crooked.

They’re not...they’re not going to help you.” Her words suggest that she is fully aware of her jeopardy, so much so that she openly expresses concern about the officers’ intentions. A brief conversation then ensues respecting the role of the courts in sentencing. Stalker tells the accused that he and his partner will not make the final decisions. He is effectively telling her that she cannot expect any benefit to be derived from cooperation with police; that the Court alone determines the length of sentence that is to be imposed for a crime.

Stalker then encourages her to tell the truth “and trust that the judicial system will make a fair decision on what happens.” Riddell asks Ms. Assiniboine if she meant to kill the deceased . Rather than denying the homicide, she shakes her head saying: “No, I loved him too

much” and a moment or two later, adds in a reflective, remorseful tone, that she wishes she could see him again and that she often thinks about the effect his loss has had on his family. At this point in the interview, she has implicitly admitted the killing but not yet provided any details. [ 12 ] Shortly after admitting to her involvement in the victim’s death, she is once again pressed in a non-aggressive way to provide details of what happened. She now recounts that her lawyer told her not to say anything about this. Stalker states that he thinks her lawyer knows that she has a story to tell.

My perception of this exchange is that the accused’s remark suggests her continuing awareness of her right to remain silent. I do not perceive, as was suggested by defence, that Stalker’s reply is misleading with respect to her right of silence.

I see it as simply an acknowledgement that she may have something to say at some point in the process, something she had shared with her counsel prior to the interrogation. [ 13 ] Riddell then gives her a chance to present any version of the incident including a less inculpatory or mitigating one: “If you didn’t mean to kill him, what did you mean to do?” Riddell then asks if she “freaked out” and is told she broke down, that she did not mean to kill the victim, she “just got stressed out too much.” There is then further questioning about the details of what happened.

Riddell appeals to her conscience and the need to explain what happened to bring closure for the deceased’s family. The accused reveals that she is concerned that the officers might mislead the court about what she tells them, suggesting to me that she is well aware of her jeopardy and far from having her will overborne at this point. I concur with the observation made by Mr. Cooper in his submission that the accused’s responses at this point were very measured in relation to her jeopardy.

She clearly knew her responses to questions and other comments were meant to be put before a trier of fact and a court of law. Shortly after uttering this cynical rejoinder, Ms. Assiniboine goes on to tell the officers that the victim hit her that last night they were together, that he had done so many times before. That earlier in the evening, before this happened, he had accused her and his brother Fred of “fooling around”. She then asks if they have spoken to Fred and what, if anything, Fred had told them about her. They confirm that they have interviewed Fred.

She then relates that the deceased ejected his brother from the apartment after this accusation, leaving them alone together. When encouraged to go on and relate what happened next, she initially demurs, saying, “I don’t want to say anything right now” and asserts that she feels harassed by all the questions posed by the officers. She then asks the officers, cautiously testing the waters before she proceeds, if they have believed what she has told them to that point. They confirm that they have and then the accused once again expresses concern about how long her jail sentence will likely be.

She is clearly cautiously looking for feedback at this point, perhaps in the hope that the officers will reduce the charge, or recommend a lenient sentence if they see her as a victim of abuse. At a later point in the interview, she actually broaches the subject, and asks the officers if they are still charging her with murder “even though it is not all my fault” (p. 93) [ 14 ] Riddell says he cannot talk about that, he does not know. She then confirms that she did not know she had hurt the victim so seriously, that she “just wanted to scare him,” that she “didn’t mean it.” At this point in the interrogation, Ms.

Assiniboine still seems to be mindful of her lawyer’s caution “to say nothing” because she would still be “charged with murder anyways,” something that Riddell actually confirms in the course of their conversation at this time. [ 15 ] Not too long after the foregoing exchange, the accused tells the officers that it was not all her fault, that the deceased had hit her in the back of the head with his fist, causing her to have “had enough of being pushed around.” She is then, yet again, asked to explain what happened. The tone of the interview continues to be civil.

The accused responds by commenting: “I’m supposed to tell this to my lawyer only, aren’t I?” It is admittedly difficult to discern if this comment is a question or a declaration and therefore possibly suggests that she may be uncertain of the scope of her right to remain silent.

Such a conclusion is supported by her further utterance, a matter of seconds afterwards, “I was told not to say too much.” Defence contended that her words should be perceived as an expression of actual confusion about her right to silence, confusion which had arisen because of the officers misleading comments earlier in the interrogation. Of course, it is difficult to know what to make of this, as the accused did not testify on the voir dire , leaving the subject open to conjecture.

As I have said before in this context, it is my intention to discuss this issue further in my final reasons for decision. [ 16 ] After this exchange, a lengthy discussion ensued. Ms. Assiniboine asks who found the victim`s body, the officers encourage her to give the victim`s family answers in order to give them closure. She is encouraged to take responsibility for her actions and provide details of what happened. The accused indicates that the victim had not only struck her, he had also yelled at her, alleging she had been unfaithful with his brother.

Not too long after this disclosure, Riddell reminds the accused, albeit somewhat indirectly, that anything she says to them will be used in Court, saying: “...that’s what the courts will want to hear, your story. That’s what they appreciate, your story. What is your story?” These comments are of course, if they were believed to be true by the accused, potentially quite erosive in relation to her previously implemented counsel rights and her right to silence when confronted by the police authorities.

Of course, it is almost impossible to know whether the accused was actually misled by Riddell’s comments as subsequent remarks by her continue to suggest an awareness of her rights. For example, at page 140 of the transcript, the accused seeks an assurance from the officers that they will relate what she is telling them at her trial and then after reaffirms yet again that she was “told not to say too much,” and then asks the officers why they “want to know about everything.” The Court does not know what conclusions it should draw from all this.

I have no idea if her words reflect guile in relation to her culpability or confusion respecting her rights, as alleged by her counsel. My over-all impression is that the former, not the latter, pertains. Of course, my impression might well have been different if I had actually heard the accused’s testimony respecting the subject matter of the voir dire . [ 17 ] Another example of her seeming comprehension of her rights occurs at page 201 of the transcript, when the accused tells the officers that “usually they say not to say nothing. They tell it later,” referring presumably to trial proceedings.

Detective Riddell immediately concurs with her opinion saying: “I’ll be the first to admit that. There’s times not to say anything.” I am of the opinion that the accused’s observation is reflective of a person who has a solid grasp of both her jeopardy and her rights. [ 18 ] Within a minute, the accused then divulged that the deceased fell to the bed and then the floor after what she did to him at this point; that he had been bleeding from the abdominal area and she had fled from the apartment.

When asked what she had done to cause the victim to bleed, she disclosed utilizing an object she had found in the kitchen and after more questioning, ultimately described the weapon as being a knife which she said she had disposed of after leaving the victim’s apartment building.

DECISION [ 19 ] Defence takes the position that the accused’s will was overborne by the investigating officers misleading and misdirecting comments respecting her right to silence, rendering her confession less than the product of a fully operating mind. In response, the prosecution asserts that this Court, not having heard any testimony from the accused, would have to speculate with respect to such a conclusion as the evidence in such respect is far from definitive, something I have commented on hitherto.

In such regard, Court was reminded that nothing said by the accused during the interview was actually reflective of her will being overborne, that there was no suggestion of any significant disintegration or breakdown; that Ms. Assiniboine understood what she was being asked and her answers were both coherent and responsive.

Finally, the Crown contended that there was no evidence of quid pro quos being offered by the interrogators either in the form of express or implied threats or promises. [ 20 ] The Court agrees with the prosecution respecting the absence of words promising or holding out that a confession would lead to a lesser charge and also that the police officers never impliedly offered to do anything of favour in return for a confession.

As I see the situation, the officers’ suggestions sometimes had the potential to mislead or confuse the accused with respect to her rights but were not calculated to do so in the sense that they would have had a corrosive effect on her right to silence. I am satisfied that the Crown has proven that her admissions were made freely and voluntarily with an appropriate understanding of her rights and her option to maintain silence. The statement Ms.

Assiniboine made was not made in response to threats or promises, nor was it the by-product of a less than operating mind, in the sense that she was not in full possession of her faculties at the time of interrogation. Nor was there evidence of any blatant tricks rendering the statement involuntary because of police skullduggery. [ 21 ] So I am unable to reach the conclusion that the statement is involuntary and therefore inadmissible. The evidence in that respect is both inconclusive and at best equivocal.

The accused never, in my opinion, clearly asserted her right to silence and seemed alive to her rights throughout her interview. She was never mistreated and was not offered any inducements that were strong enough to raise reasonable doubt as to the voluntariness of her statement. She was also provided with both the informational and implementational aspects of the right to counsel; she was seemingly capable of exercising her right and made comments that confirmed that she had exercised such right.

And although she referred to a further arranged meeting with her counsel later that same day, it was not in the context of receiving clarifying advice respecting her right to silence. [ 22 ] On a final note, as previously indicated, I wish to comment respecting the officers’ suggestions to the accused that her counsel “would like her to explain herself” and the Courts will both want to and appreciate hearing “her story.” I acknowledge that if the accused had credibly testified that these suggestions had actually caused her to lose confidence in her lawyer’s advice and induced her to incriminate herself, I would have ruled the statement involuntary and therefore inadmissible.

However, as indicated, I reiterate that I am unable to draw such inferences or conclusions on the basis of the evidence which was received at the voir dire . The statement is accordingly ruled admissible. Original Signed by CORRIN, P.J.