R. v. Bakieh, 2014 ONCJ 155

Citation : R. v. Bakieh , 2014 ONCJ 155 IN THE MATTER OF the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 Between Her Majesty The Queen prosecutor and Jad Bakieh defendant Ontario Court of Justice Mississauga, Ontario Quon J. P. Reasons For Ruling On Voir Dire For The Admissibility Of Defendant’s Statement Charge: s. 2(1) (

b) C.A.I.A. – “owner permit motor vehicle to be operated on highway without insurance” Voir dire held on: December 18, 2013 (ruling reserved). Ruling on voir dire rendered: March 27, 2014.

Counsel: A. Bruno, prosecutor S. Senatorov, legal representative for the defendant Cases Considered or Referred To: R. v. Anderson, [1990] S.J. No. 298 (QL) (S.Q.B). R. v. Boudreau, (SCC), [1949] S.C.R. 262, 94 C.C.C. 1, 3 D.L.R. 81 (S.C.C.). R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, S.C.J. No. 64 (QL) (S.C.C.). R. v. Ibrahim, [1914] A.C. 599. R. v. Jackson, (BC CA), [1977] B.C.J. No. 1117 (QL), 34 C.C.C. (2d) 35 (B.C.C.A.). R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59 (S.C.C.). R. v. Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3, [2002] S.C.J. No. 38 (QL) (S.C.C.). R. v. Sappleton, [2006] O.J.

No. 3500 (QL) (O.C.J.), per Atwood J. R. v. Jagrup Singh, 2007 SCC 48 , [2007] 3 S.C.R. 405, S.C.J. No. 48 (QL) (S.C.C.). R. v. Teske, (ON CA), [2005] O.J. No. 3759 (QL) (O.C.A.), per Doherty, Weiler and Goudge JJ.A. R. v. White, (SCC), [1999] 2 S.C.R. 417 (S.C.C.). Toronto (City) v. Baillie, [2007] O.J. No. 2178 (QL) (O.C.J.), per Quon J.P. Toronto (City) v. Bednarski, [2009] O.J. No. 2955 (QL) (O.C.J.), per Quon J.P.

Statutes, Regulations and Rules Cited: Canadian Charter of Rights and Freedoms , 1982, ss. 7, 9, 10 and 10(b) . Compulsory Automobile Insurance Act , R.S.O. 1990, c. C.25, 2(1)(b). 1.

INTRODUCTION [ 1 ] Even though an accused person’s inculpatory statement or admission given to a police officer, at first glance, would be proof that could be used in a trial to show the accused person had committed an offence, the statement or admission may not be voluntary, but obtained by an inducement, and therefore not admissible, if the accused person’s will had been overborne by the police officer who presents a choice to the accused person to make that inculpatory statement or to allow the police officer to charge a relative or family member of that accused person with committing an offence. [ 2 ] Ergo, the issue in this regulatory trial involves whether the utterances or statement made by Jad Bakieh, the defendant, to a police officer from the Peel Regional Police, which the prosecution wishes to have admitted and used as proof that the defendant had committed the offence he had been charged with, had indeed been given voluntarily. [ 3 ] The defendant contends that the inculpatory statements he had made to the police officer had not been voluntary, since he had been induced to make the statement by the police officer who had given the defendant the choice of being charged with the regulatory offence of “owner permit motor vehicle to be driven on a highway without insurance” or to allow the police officer to charge the defendant’s brother, who had been driving the defendant’s vehicle, with the criminal offence of “ taking a motor vehicle without the owner's consent ”.

In addition, the defendant contends that the police officer who had taken the defendant’s statement had failed to caution the defendant before obtaining the defendant’s statement, which the defendant submits is another basis for not allowing the defendant’s statement to be admitted into the trial proper.

The prosecution, on the other hand, argues that since the defendant did not testify in the voir dire to determine the admissibility of the statements in question, then there is no evidence that the defendant had been induced by the police officer to make those utterances or statements, and as such, the defendant’s inculpatory statements or admissions had been voluntarily made and should be admitted into the trial proper. [ 4 ] In respect to the offence at issue, the defendant had been charged with being the owner of a motor vehicle, which he had allegedly “permitted” to be driven on a highway without having obtained a contract of automobile insurance for that vehicle, contrary to s. 2(1) (

b) of the Compulsory Automobile Insurance Act , R.S.O. 1990, c. C.25 (“ C.A.I.A. ”). The circumstances that led to this charge being laid against the defendant began when the defendant’s vehicle had been observed by a police officer being driven on Central Parkway West in the City of Mississauga on July 5, 2012, at 10:36 a.m. However, the defendant had not been driving his motor vehicle at that time, nor had he been inside the vehicle.

Rather, the defendant’s vehicle had been driven by the defendant’s brother when a police officer had stopped the defendant’s vehicle to be investigated because of information the officer had received from the police cruiser’s on-board computer about the status of the defendant’s vehicle. After the defendant’s vehicle had been pulled over, the defendant’s brother, who was the lone occupant of the vehicle, was then asked for his driver’s license, the ownership permit for the vehicle, and documentary proof that the vehicle had been insured.

However, the defendant’s brother had only been able to provide the officer with his driver’s licence and the ownership permit for the vehicle, but did not provide any insurance documents for the vehicle. [ 5 ] Subsequently, after determining the driver of the vehicle had not been the owner of the vehicle, and since no insurance documents had been provided by the defendant’s brother for the defendant’s vehicle during that vehicle stop, the police officer then went to speak to the defendant at the defendant’s residence which happened to be located nearby on Central Parkway West, to investigate whether the defendant’s vehicle had been stolen or taken without the defendant’s consent. [ 6 ] During the conversation between the officer and the defendant at the front door of the defendant’s residence that began at approximately 11:08 a.m., the defendant had made inculpatory statements to the police officer.

Firstly, the defendant admitted that he had been present when the defendant’s brother had taken the defendant’s vehicle and that it had not been stolen. Secondly, the defendant admitted to being between insurance companies and trying at that time to obtain insurance coverage for the vehicle. Undeniably, these two inculpatory statements would be key elements in proving the offence of “owner permit motor vehicle to be driven on a highway

without insurance”, contrary to s. 2(1) (

b) of the C.A.I.A. [ 7 ] As such, a voir dire was held to determine the voluntariness of the defendant’s statements. In the voir dire, the police officer, who had obtained the inculpatory statements from the defendant, had testified to telling the defendant about two scenarios or options that the defendant could choose from. The two options provided to the defendant were for the police officer to either charge the defendant with a regulatory offence or for the officer to charge the defendant’s brother with a criminal offence in respect to the defendant’s vehicle being operated on a highway.

As such, depending on the circumstances surrounding the pronouncement of these two so-called options that had been provided to the defendant, including at what stage during the conversation between the police officer and the defendant that those two options had been given to the defendant; what information the defendant had given to the police officer prior to the officer providing the two options; whether the defendant had asked the officer for available options; and whether the officer had actually allowed the defendant to choose between the two options of whom would be charged, the two-option pronouncement could rightfully be considered as an improper inducement made by the police officer to obtain the defendant’s inculpatory statements or admissions that would effectively vitiate the voluntariness of the defendant’s admissions given to the police officer. [ 8 ] In particular, if the defendant’s inculpatory statements or admissions were only given to the police officer after the police officer had given the defendant the two options of whom could be charged with an offence, being either the defendant or the defendant’s brother, then the defendant’s will may have been overborne by the improper inducement, and thereby vitiating the voluntariness of the defendant’s admissions. [ 9 ] These, therefore, are my written reasons for my ruling on the voluntariness and admissibility of the defendant's inculpatory statements or admissions made to Officer Caicas, the police officer who had charged the defendant on July 5, 2012, with committing a regulatory offence. 2.

THE CHARGE [ 10 ] The defendant has been charged in a

Part III information sworn on July 17, 2012, with the following offence: Jad Bakieh , of [part of residential address removed for privacy] Central Parkway West, Mississauga, Ontario, on or about the 5 day of July, 2012, at the City of Mississauga did commit the offence of: being the owner of a motor vehicle, license number [plate number removed for privacy], did unlawfully permit the said motor vehicle to be operated on a highway, to wit: Central Parkway, at approximately 10:36 a.m., when it was not insured under a contract of automobile insurance contrary to the Compulsory Automobile Insurance Act, section 2(1))(b). 3.

BACKGROUND [ 11 ] Jad Bakieh, the defendant, is the registered owner of a purple, four-door, 1998 Honda Accord motor vehicle. On July 5, 2012, at 10:36 a.m., Motasem Bakieh, the brother of the defendant, was driving and operating the defendant’s vehicle westbound on Central Parkway West at Confederation Parkway in the City of Mississauga. Officer Caicas had observed the defendant’s motor vehicle being driven westbound on that road.

Officer Caicas then obtained the license plate number of this purple Honda Accord motor vehicle and ran the plate number on his police computer to check on the status of the motor vehicle. He then received information from his computer in respect to that vehicle, which had caused him to pull over the defendant’s vehicle. [ 12 ] Officer Caicas then made a demand of the driver of the purple motor vehicle to surrender his driver’s license, the ownership permit for the vehicle, and proof of valid insurance for the vehicle.

The driver of the purple motor vehicle provided Officer Caicas with an Ontario driver’s license with a photograph in the name of Motasem Bakieh with a birthdate of [removed for privacy], 1992, and with an address of [ removed for privacy ] Central Parkway West, Mississauga. The driver also provided the ownership permit for the vehicle, which Officer Caicas confirmed was the permit for the purple motor vehicle.

The permit indicated that the registered owner of the vehicle was Jad Bakieh, with a birthdate of [removed for privacy], 1992, and with the same address as Motasem Bakieh, the driver of the vehicle. [ 13 ] However, the driver, Motasem Bakieh, had been unable to produce any insurance documents for the purple motor vehicle. At that point, Officer Caicas decided to go the residence of the registered owner of the purple motor vehicle who happened to live on

Central Parkway West in Mississauga, which is the same street on which Officer Caicas had observed and stopped the purple motor vehicle. [ 14 ] At 11:08 a.m., Officer Caicas arrived at the door of the registered owner’s residence. After knocking on the door, the owner of the purple motor vehicle answered the door and identified himself to Officer Caicas as Jad Bakieh.

Officer Caicas also said he had been satisfied that the person who answered the door was the registered owner of the purple motor vehicle. [ 15 ] In addition, Officer Caicas had said that his intention for going to the registered owner’s address had been to investigate whether the purple motor vehicle had been stolen or taken without the owner’s consent.

Moreover, Officer Caicas said that he had information at that point that the purple motor vehicle was not insured. [ 16 ] During Officer Caicas’s conversation with the defendant at the door to the defendant’s apartment, the defendant made inculpatory statements or admissions to Officer Caicas in respect to the offence that the defendant has been charged with. [ 17 ] After Officer Caicas’s conversation with the defendant, which lasted approximately 20 minutes, Officer Caicas charged the defendant, Jad Bakieh, with the offence of “permitting operation of motor vehicle without insurance” contrary to s. 2(1) (

b) of the Compulsory Automobile Insurance Act , R.S.O. 1990, c. C.25, which carries a minimum fine of $5,000 upon conviction for a first offence. [ 18 ] Moreover, while Officer Caicas was testifying in the trial of the defendant’s charge being held on December 18, 2013, the prosecution sought to enter as evidence into the trial the defendant’s utterances or oral statement that had been provided to Officer Caicas on July 5, 2012.

The defendant now seeks to have his statement given to Officer Caicas excluded for not being voluntary as the defendant contends he had been improperly induced by Officer Caicas to make those admissions. [ 19 ] The defendant also contends that Officer Caicas had failed to give the defendant the required Charter cautions before obtaining the defendant’s statement, and as a consequence, the defendant submits that his statement should also be excluded from being entered in the trial proper. [ 20 ] Furthermore, in the voir dire held for the determination of the admissibility and voluntariness of the defendant’s statement, only one witness testified, which was Officer Caicas, who had testified for the prosecution.

However, the defendant did not testify in the voir dire. After arguments from both parties on the voluntariness of the defendant’s statement, I reserved my decision and adjourned the matter until March 27, 2014, to render my ruling. (

A) RELEVANT TESTIMONY OF OFFICER CAICAS PRIOR TO HOLDING THE VOIR DIRE [ 21 ] Prior to entering into the voir dire in respect to the admissibility of the defendant’s statement, Officer Caicas had testified that on July 5, 2012, in the City of Mississauga he had been operating an unmarked police cruiser and wearing his uniform. He also said he had been westbound on Central Parkway West at Confederation Parkway in Mississauga.

He then said he had observed a purple motor vehicle westbound and that from the information he had received from his computer in respect to that vehicle it had caused him to pull that vehicle over. [ 22 ] In addition, Officer Caicas said that the license plate on the vehicle had been [removed for privacy]. He further said that the vehicle had only one occupant, the driver. He then said he made a demand of the driver to surrender his driver’s license, ownership for the vehicle, and insurance for the vehicle.

Officer Caicas then said that the driver provided him with an Ontario driver’s license with photo identification in the name of “Motasem Bakieh”, with a birthdate of [removed for privacy], 1992. In addition, Officer Caicas said the number on the driver’s license was [removed for privacy] and the address on the driver’s license was [removed for privacy] Central Parkway West in Mississauga. [ 23 ] Furthermore, Officer Caicas said the driver provided him with a permit for the motor vehicle that had been stopped by Officer Caicas.

Caicas also said the permit shown to him had been for the vehicle that was being operated on the road at the time. He further said the vehicle was a 1998 Honda Accord, four-door, and purple-coloured motor vehicle. In addition, Officer Caicas said the registered owner listed on the permit was Jad Bakieh, with a birthdate of [removed for privacy], 1992, and with the same address as that of the driver who was driving the vehicle.

[ 24 ] Officer Caicas then said that at 11:08 a.m. he had gone to the registered owner’s residence to speak to the registered owner. At this point of Officer Caicas’s testimony in the trial proper, a voir dire was then commenced to determine the voluntariness of any utterances or statements made by the defendant to Officer Caicas. (

B) SUMMARY OF TESTIMONY IN VOIR DIRE Officer Caicas’s testimony [ 25 ] In the voir dire , Officer Caicas testified that he had spoken to the defendant, who was the registered owner of the purple vehicle he had stopped earlier on Central Parkway. Officer Caicas also said in was in uniform and that there was only he and the defendant present during the conversation. [ 26 ] Officer Caicas also said that the conversation between them had been in the apartment building in the outside hallway to the defendant’s apartment.

Specifically, Caicas said the door to the defendant’s apartment had been opened and the defendant was speaking to Officer Caicas while Caicas was in the hallway and the defendant was inside his apartment. [ 27 ] Moreover, Officer Caicas testified that the defendant had not been under the influence of alcohol, but that the defendant had just woken up. Caicas then testified that he did not make any threats or inducements to the defendant, nor had he touched the defendant.

Caicas also said the defendant understood the English language and that the defendant’s answers were consistent with the questions posed to him by Officer Caicas. [ 28 ] Furthermore, Officer Caicas testified that the defendant had not been under arrest. [ 29 ] In addition, Officer Caicas had said that he had knocked on the door of the defendant’s apartment and then had a brief conversation with the defendant to make sure the person he was speaking to was the registered owner of the purple vehicle.

Caicas said that he was satisfied after this brief conversation that the person who answered the door was the registered owner of the purple vehicle. [ 30 ] Officer Caicas also said his purpose for attending the defendant’s residence had been to make sure the defendant’s vehicle had not been stolen or taken without the defendant’s consent, since the defendant who was the registered owner was not driving the purple vehicle he had stopped earlier. [ 31 ] Moreover, Officer Caicas said he had made notes of the conversation between Caicas and the defendant and recorded those notes in his notebook.

Caicas also said he wrote down the defendant’s answers. Furthermore, Caicas said that he had asked the defendant questions and then received responses. Caicas also said he has an independent recollection of the conversation and that it had been more than what he had recorded in his notes. [ 32 ] In addition, Officer Caicas said he had explained to the defendant why he was there. Particularly, Officer Caicas informed the defendant at the defendant’s door that the defendant’s brother had been driving the defendant’s vehicle when Caicas had pulled over the defendant’s vehicle.

Caicas then said he had asked the defendant whether the defendant had been aware that the defendant’s brother had been driving the defendant's car or whether the defendant’s car been stolen.

To that query, Caicas said the defendant had stated, “I here when brother take car and not stolen, I promise.” [ 33 ] Officer Caicas then testified that he had then asked the defendant, “How about insurance?” Caicas then said the defendant had replied to that question and had said that he was “in between insurance companies” and “working on another policy now.” Furthermore, Caicas said the defendant did not provide him with any proof of insurance for the defendant’s motor vehicle. [ 34 ] When asked if a caution had been given to the defendant, Officer Caicas said that he had not been there to charge the defendant with anything.

[ 35 ] Officer Caicas then reiterated that he had not made any threats or gave any inducements to the defendant, but did say that he had explained to the defendant what his options were after the defendant had given his initial answers. [ 36 ] When questioned on whether his explanation of the options had been an inducement, Officer Caicas said that he had explained the situation to the defendant and had explained two options to the defendant, but did not induce him to make a choice.

Caicas also said that he had explained what those choices were and that there had been nothing that Caicas could have promised him. [ 37 ] Furthermore, Officer Caicas said there were three options for Caicas to proceed on in respect to the situation with the defendant’s motor vehicle when he had first arrived at the defendant’s apartment. For the first option, Caicas said that if the defendant’s brother had taken the defendant’s vehicle without consent then Caicas could charge the defendant’s brother with “taking motor vehicle without owner’s consent”.

For the second option, Officer Caicas said that he could charge the defendant with “owner permit motor vehicle to be operated on a highway without insurance” if the vehicle did not have insurance and the defendant had given permission to the defendant’s brother to drive the defendant’s vehicle. For the third option, Caicas said that the defendant could have provided Caicas with proof of insurance coverage for the purple motor vehicle. [ 38 ] Officer Caicas also reiterated that the defendant had informed Caicas that the defendant did not have insurance on the car.

However, Officer Caicas also said that Caicas had already known that the vehicle had not already been insured. It was at this point that Caicas said that he had given the defendant the two options of Officer Caicas either charging the defendant with permitting his vehicle to be driven on a highway without insurance or charging the defendant’s brother with taking the defendant’s motor vehicle without the defendant’s consent.

Caicas also said he had still not cautioned the defendant at that point. [ 39 ] Caicas then said he did not receive a response from the defendant after the two options of whom Officer Caicas could charge with an offence had been given to the defendant, except that Caicas had testified that the defendant did not want his brother to be charged. At that point, Officer Caicas said he had decided to charge the defendant with the offence of “owner permit motor vehicle to be driven on a highway without insurance”.

Caicas then said he gave the summons for the charge to the defendant and left. [ 40 ] In addition, Officer Caicas said he had been there with the defendant for approximately 20 minutes. [ 41 ] Furthermore, Officer Caicas said that in respect to his concerns with the defendant’s vehicle being stolen or taken without consent, he did not know for certain at the time when he had been dealing earlier with the defendant’s brother whether the vehicle had been stolen or taken without the defendant’s consent and did not want to draw a premature conclusion.

Caicas also said that since the purple vehicle had not been the defendant’s brother’s car, Caicas did not expect the defendant’s brother to buy insurance for that car. In addition, Caicas said that when he had been dealing with the defendant’s brother, he did not have solid proof whether the purple vehicle had been stolen or taken without the owner’s consent, and said that it could have gone either way and that he did not want to make a preconclusion. 4. RELEVANT LAW [ 42 ] The offence of “owner permit motor vehicle to be driven on a highway without a contract of automobile insurance, contrary to s. 2(1) (

b) of the Compulsory Automobile Insurance Act , R.S.O. 1990, c. C.25 , provides that [ emphasis is mine below ]: Compulsory automobile insurance 2(1) Subject to the regulations, no owner or lessee of a motor vehicle shall , (

a) operate the motor vehicle; or

(

b) cause or permit the motor vehicle to be operated, on a highway unless the motor vehicle is insured under a contract of automobileinsurance. Definition

(2) For the purposes of subsection (1), where a permit for a motor vehicle has been issued under subsection 7(7) of the HighwayTraffic Act, “contract of automobile insurance”, with respect to that motor vehicle, means a contract of automobile insurance made with aninsurer. 5.

ANALYSIS [43] The defendant submits that his utterances or statements made to Officer Caicas had not been voluntary because of theinducement that had been given to him by Officer Caicas that required him to choose between being charged by Officer Caicas with theregulatory offence of “owner permit motor vehicle to be driven on a highway without insurance” or to have Officer Caicas charge hisbrother with the criminal offence of “taking vehicle without owner’s consent”.

In addition, the defendant submits that Officer Caicas hadfailed to caution the defendant before Officer Caicas obtained the defendant’s statement, which also forms another basis for why theinculpatory statements should not be admitted into the trial proper. [44] Admittedly, it would be much easier for the prosecution to prove that an accused person has committed an offence when thatperson admits or confesses to committing that offence to a person in authority and that admission or inculpatory statement is allowed tobe entered in the trial of that offence.

However, before that accused person’s statement is allowed to be adduced as evidence in the trialthe prosecution is required to prove beyond a reasonable doubt that the statement had been voluntarily made: R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, S.C.J. No. 64 (QL) (S.C.C.), R. v. Jagrup Singh, 2007 SCC 48 , [2007] 3 S.C.R. 405, S.C.J.No. 48 (QL), 225 C.C.C. (3d) 103. [45] Furthermore, in R. v. Jagrup Singh, 2007 SCC 48 , [2007] 3 S.C.R. 405, S.C.J.

No. 48 (QL), 225 C.C.C. (3d) 103, atpara. 29, Charron J., writing for the majority of the Supreme Court of Canada, acknowledged that a conviction could rest solely on anaccused person's confession to a person in authority, and accordingly, the "confessions rule" required proof beyond a reasonable doubt ofthe voluntariness of any statement obtained from the accused by a person in authority before it may be admitted in evidence, consideringthat involuntary confessions are more likely to be unreliable [emphasis is mine below]: a confession is a very powerful item of evidence against an accused which, in and of itself, can ground a conviction.

One of theoverriding concerns of the criminal justice system is that the innocent must not be convicted. Because it is recognized that involuntaryconfessions are more likely to be unreliable, the confessions rule requires proof beyond a reasonable doubt of the voluntariness of anystatement obtained from an accused by a person in authority before it may be admitted in evidence, so to avoid miscarriages of justice. (

a) Is The Defendant Required To Testify In The Voir Dire In Order To Find That The Defendant Had Been Induced To MakeThe Inculpatory Statement? [46] The prosecution contends that there is no evidence that the defendant had been induced to make the inculpatory statements, asthe defendant had not testified in the voir dire. However, in R. v. Sappleton, [2006] O.J.

No. 3500 (QL) (O.C.J.), at para. 36, Atwood J.held that specific evidence of the accused’s will being overborne is not needed, since the court only needed to have reasonable doubt thatthe accused’s statement had not been voluntary [emphasis is mine below]: Given the way that he phrased it and having already directed myself that I do not need specific evidence that his will is overborne,

within the meaning of R. v. Oickle, but simply need to have a reasonable doubt on the issue at bar, it would be my view that that is someevidence on the fact that his will was being overborne. [47] As such, the defendant did not specifically have to testify in the voir dire about being induced to make the statements to OfficerCaicas in order for this court to find that the defendant had indeed been induced to make the statements in question. Such determinationcan be based solely on Officer Caicas’s testimony. (

b) Had The Defendant Been Induced By Officer Caicas To Give The Inculpatory Statements? [48] Iacobucci J, writing for the majority of the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3,S.C.J. No. 38 (QL) (S.C.C.), at para. 57, recognized that the police may often offer some kind of inducement to a suspect to obtain aconfession, but the inducement only becomes improper when the inducement standing alone or in combination with other factors, arestrong enough to raise a reasonable doubt about whether the will of the subject has been overborne.

In determining whether a suspect’swill has been overborne into making a confession by the police officer’s inducement, Iacobucci J. indicated that the most importantconsideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or apromise [emphasis is mine below]. 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 that itis 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. On this pointI found the following passage from R. v. Rennie (1981), 74 Cr. App.

R. 207 (C.A.), at p. 212, particularly apt: Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an earlyadmission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even ifpromoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confessionwould be rendered inadmissible. This is not the law. In some cases the hope may be self-generated.

If so, it is irrelevant, even if itprovides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said ordone 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 doneby 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 thatthey might be able to bring both their interrogation and their detention to an earlier end by confession.

The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in theform of a threat or a promise. [49] Moreover, at para. 33 in R. v. Oickle, Iacobucci J. reminded the courts that when applying the confession rule, a court must keepin mind the rule’s twin goals of protecting the rights of the accused without unduly limiting society's need to investigate and solve crimes[emphasis is mine below].

In defining the confessions rule, it is important to keep in mind its twin goals of protecting the rights of the accused without undulylimiting society's need to investigate and solve crimes. Martin J.A. accurately delineated this tension in R. v.

Precourt (1976), (ON CA), 18 O.R. (2d) 714 (C.A.), at p. 721: Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear inmind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected ofhaving committed the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminalinvestigation... .

On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive andcalculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible ... . All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of eitherof these objectives. (

i) Was there a “quid pro quo” offer made by Officer Caicas for the defendant’s statement?

[ 50 ] To reiterate, Iacobucci J. held in R. v. Oickle , at para. 57 , that the most important consideration in all cases is to look for a quid pro quo offer by the police officer in determining whether a reasonable doubt has been raised about the suspect’s will being overborne by the police officer’s inducement to make the statement or admission in question.

In that respect, Officer Caicas had testified that there was nothing that he could have promised to the defendant. [ 51 ] Moreover, quid pro quo offers made by a police officer to a suspect, such as when a suspect is informed by the police officer that family members or relatives of the suspect could be charged unless the suspect confesses or makes certain admissions, have been found by the courts to be improper inducements that have overborne the suspect’s will.

In other words, the courts have held that such suggestion by a police officer to the suspect in certain circumstances would be an improper inducement for that confession or admission, and therefore, it would not be a voluntary admission. [ 52 ] For instance, in R. v. Sappleton , [ 2006] O.J.

No. 3500 (QL) (O.C.J.) , Atwood J. had to determine whether the accused person’s videotaped statement given at the police station had been given voluntarily in light of the police officers, who had been interrogating the accused person, had stated repeatedly to the accused person that unless someone took ownership of the gun found in the accused person’s residence that everyone in the house would be charged, which would have included charging the accused person’s mother and sisters.

In deciding, that the specific pronouncement from the police that the accused person’s mother would be charged unless the accused person made statements admitting to ownership of the gun, Atwood J. held at paras. 53 and 54 in R. v.

Sappleton , that the statement in respect to charging the mother was an obvious quid pro quo and that it had overborne the accused person’s will to some extent, and therefore, provided reasonable doubt as to whether the accused person’s statement was voluntary, such that the accused’s person admission in respect to ownership of the gun would have to be excluded from the trial [ emphasis is mine below ]: Here it is absolutely clear the relationship is that of mother and son .

It is not necessary for me to determine whether the relationship between a brother and sister or between a brother and several sisters, one of whom is disabled, is sufficient to be equivalent to those comments in Oickle , Jackson, Belanger and Anderson that I have already set out. The relationship here is the strongest, I think, that our society encompasses and that is between a mother and child. The inducement is a specific statement that Mr. Sappleton's mother would be charged unless he made statements admitting to ownership of the gun .

The fact that he did not make those statements does not detract from the conclusion that I have and that is that it is a quid pro quo, it is an obvious quid pro quo and one that (although it is not necessary for me to so) I find it overbore his will to some extent. I have more than simply a reasonable doubt, I have very large doubt indeed as to whether the statement was voluntary on that basis and the statement will be excluded . [ 53 ] Similarly, in R. v. Anderson , [1990] S.J.

No. 298 (QL) (S.Q.B) , the Saskatchewan court had found the suspect in that case had been induced to make the admission that the marihuana found in the car driven by his parents had been the suspect’s marihuana, when the police officer had asked the suspect whether the suspect had known that his parents had been stopped with two pounds of marihuana in the vehicle and whether the suspect was going to let them take the rap. After the police officer’s suggestion to the suspect about his parents taking the rap, the suspect spilled all to the police officer.

In addition, the Saskatchewan court had held that the police officer’s question or suggestion to the suspect could be interpreted to mean that if the suspect took the rap that his parents would not be charged. Moreover, the court also held that it had not been necessary for the police officer to specifically state to the suspect that if he took the rap then his parents would not be charged, but that such an inference could be made from the police officer’s question to the suspect.

Accordingly, the Saskatchewan court had held that the suspect had been induced to make the admissions in the hope that by doing so, he would protect his parents [ emphasis is mine below ]: At first blush the answers given by the accused would appear to be voluntary . However in the context of the whole scenario I find that in fact he was induced into making the admission that the marihuana found in the car driven by his parents was his. Sergeant Tuffs testified that when he asked the accused if he knew that his parents had been stopped at Bonnyville with two pounds of marihuana in the vehicle he answered, "No".

Sergeant Tuffs then asked if he was going to let them take the rap . This can be interpreted as meaning that if he took the rap his parents would not be charged . From this moment on the accused "spilled all" and then took the officers to the school bus where he handed them a blue bag containing three plastic bags with green plant-like material in them. In my view it was not necessary for Sergeant Tuffs to specifically state that if he took the rap for his parents [they] would not be charged. The inference was there.

The accused was induced to make the admissions in the hope that by doing so he would protect his parents . [ 54 ] Ergo, in considering whether there had been a quid pro quo offer made by Officer Caicas to the defendant to improperly induce the defendant to confess or make an admission, the concern is on Officer Caicas’s testimony that he had provided the defendant with the two options of either Officer Caicas charging the defendant with the regulatory offence or charging the defendant’s brother with a

criminal offence. By simply looking at only Officer Caicas’s comments to the defendant about the two options of whom could becharged with an offence, Officer Caicas’s two-option pronouncement is not unlike the scenarios in R. v. Sappleton and in R. v. Andersonand could be considered in certain circumstances to be an improper inducement by Officer Caicas for the defendant to confess or makean admission.

Especially, if this two-option offer had been made by Officer Caicas to the defendant before the defendant had madethose two inculpatory statements that the defendant knew the defendant’s brother had taken the defendant’s vehicle and that it had notbeen stolen and that the defendant was in between insurance companies and presently working on another policy, then Officer’s Caicas’stwo-option pronouncement that either the defendant or the defendant’s brother could be charged, may have induced the defendant tomake those two admissions to ensure that the defendant’s brother would not be charged with an offence.

But, since Officer Caicas hadonly provided that two-option scenario to the defendant after the defendant had already made the two inculpatory statements, then itwould not have logically or improperly induced the defendant to make those two admissions, since the two inculpatory statements hadalready been given to Officer Caicas before those two options of whom could be charged with an offence had been specified and outlinedto the defendant. [55] In addition, Officer Caicas had testified that the defendant in any event did not respond to the two-option question given byOfficer Caicas, nor did he make any subsequent admissions, although Officer Caicas had testified that the defendant did not want hisbrother to be charged, at which point Officer Caicas said he had charged the defendant with the offence of “owner permit motor vehicleto be driven on a highway without insurance”. [56] Accordingly, since the defendant had already made the two admissions to Officer Caicas before Caicas had even outlined to thedefendant the two options of whom could be charged with an offence, I do not find that reasonable doubt has been raised that thedefendant’s will had been overborne by Officer Caicas, nor do I find that Officer Caicas had improperly induced the defendant to makethe two inculpatory statements in question, nor do I find that Officer Caicas’s two-option pronouncement to the defendant had been aquid pro quo offer. (

c) Was The Two-Option Scenario Given To The Defendant A Factual Explanation Or Statement Of Fact From Officer Caicas? [57] Even though I have concluded that the two options given by Officer Caicas to the defendant of whom could be charged with anoffence did not improperly induce the defendant to make the two admissions, the nature of the two-option pronouncement made byOfficer Caicas requires further comment. [58] In some circumstances, the choices or options provided to a suspect by a police officer is not an inducement used to obtain aconfession, but a factual explanation or a statement of fact from the police officer.

As the two-option pronouncement had been onlymade by Officer Caicas to the defendant after the defendant had already made the two inculpatory statements, then Caicas’s two-optionpronouncement would be similar to the factual explanation or a statement of fact situation that had occurred in R. v. Teske, (ON CA), [2005] O.J. No. 3759 (QL) (O.C.A.).

In that case, Doherty J.A., had held, at paras. 73 to 77, that the police officer'sstatement to the suspect that if the suspect told the truth the suspect would be arrested and placed in custody so that there would be thenno need for the involvement of the Children's Aid Society to take his children, had not "triggered" the suspect’s admissions, nor induceda confession, since the police officers had been only honestly answering a question put to them by the suspect of what would happened tohis children [emphasis is mine below]: The third argument requires a somewhat more detailed analysis.

The trial judge found that the officer's statement to the appellant that ifhe told the truth he would be arrested and placed in custody so there would be need for the involvement of the Children's Aid Society"triggered" Statement #1. The trial judge found that the officer's comment was an honest reply in response to a question from theappellant. The trial judge also held that the investigating officers reasonably believed that the apprehension of the children for their ownsafety was necessary if the appellant was at liberty.

The decision to tell the appellant of their intention to have his children apprehendedbefore releasing him was not, on the trial judge's findings, a ruse or strategy designed to elicit an admission from the appellant. It was areasonable response to the situation faced by the investigating officers. Not all police statements or actions which induce a confession render the confession inadmissible. In Oickle, at para. 57, Iacobucci J.observed: In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess.

Thisbecomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise areasonable doubt about whether the will of the subject has been overborne. ...

The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in theform of a threat or a promise. On the trial judge's assessment of the evidence, there was no quid pro quo or even any inducement. There was only an honest,straightforward response by the investigating officer to the appellant's question. The appellant asked what his options were insofar as hischildren's apprehension by the Children's Aid Society was concerned. The investigating officer's answer to that question contained anaccurate appraisal of the appellant's situation.

The circumstances of this case have some similarity to those described in R. v. Backhouse (2005), (ON CA), 194C.C.C. (3d) 1 at paras. 120-21 where the police told a detained person that he would be released if he provided an alibi that could beconfirmed. That comment induced a statement which was subsequently relied on by the Crown. In upholding the trial judge's decisionthat the statement was voluntary, Rosenberg J.A. observed (at para. 121): The statement to the appellant was an accurate appraisal of the circumstances.

It would be an odd result if police could not invite asuspect, who was protesting his innocence and was willing to speak to the police, to provide an alibi that could clear him of liability. Thatis what occurred here [emphasis added]. It would be an odd result in the circumstances of this case if the police were not permitted to apprise the appellant of the involvement ofthe Children's Aid Society and the reason for that involvement.

To send the appellant home without any advance notice that his childrenwould be apprehended by the Children's Aid Society would be to invite a potentially very volatile confrontation between the appellantand the Children's Aid Society authorities. Having made the appellant aware of their planned course of action, I do not think the policecan be accused of inducing a confession when they honestly answered a question put to them by the appellant.

Finally, the appellant'sconduct after he was told of the option whereby he could avoid the apprehension of his children does not suggest that his will wasoverborne by that statement. Instead, he requested food, ate the food that was ordered, and only then decided to tell the police that hehad incinerated his wife's body. [59] However, even though there is no evidence that the defendant in the case at bar had asked Officer Caicas about the potentialconsequences that could befall his brother that would be analogous with what had occurred with the suspect in R. v.

Teske when thesuspect had asked the police officer about what would happen to his children, I nevertheless conclude that Officer Caicas’s two-optionscenario that had been presented to the defendant had been Officer Caicas’s unique way in giving a factual explanation to the defendantof two veritable legal possibilities or outcomes.

One being that the defendant’s brother would be charged with the criminal offence of“taking vehicle without owner’s consent”, if the defendant’s brother had taken the defendant’s vehicle without the defendant’s consent,or that the defendant would be charged with the regulatory offence of “owner permit motor vehicle to be driven on a highway withoutinsurance”, if consent had been given to the defendant’s brother to drive the defendant’s vehicle and there had been no insurance for thedefendant’s vehicle. [60] Moreover, although Officer Caicas had not testified about there being another purpose for making the two-option pronouncementto the defendant of whom could be charged with an offence and with what offence after the defendant had already made the twoadmissions, there is still another possible purpose for that two-option explanation given by Officer Caicas.

The other possible purposethat could have been utilized by Officer Caicas for giving the two-option explanation to the defendant had been a gambit by OfficerCaicas to preclude the defendant from later or subsequently raising that particular defence at his trial that his vehicle had been taken andoperated on a highway by his brother without the defendant’s consent, since raising that defence only at the trial would be suspect orcarry little weight if the defendant had not immediately informed Officer Caicas that the defendant’s brother had taken the defendant’svehicle without the defendant’s consent when the two-option explanation had been given to the defendant. (

d) Was The Defendant’s Common Law Right To Remain Silent or his Right to Be Informed Of His Rights Under S. 10(b)Violated By Officer Caicas? [61] As for the second basis for not admitting the defendant’s inculpatory statements into the trial proper, the defendant contends thatOfficer Caicas had failed to caution the defendant before obtaining the defendant’s inculpatory statements. [62] Moreover, I am mindful of the Supreme Court of Canada’s reminder that there has to be a balance between not unduly limitingpolice investigations and an individual’s right to remain silent.

[63] In R. v. Jagrup Singh, 2007 SCC 48 , [2007] 3 S.C.R. 405, S.C.J. No. 48 (QL), 225 C.C.C. (3d) 103, at paras. 27 and 28,Charron J., writing for the majority of the court noted that the common law right to silence simply reflects the general principle that,absent statutory or other legal compulsion, no one is obligated to provide information to the police or respond to questioning, but thatthis does not mean that a person has the right not to be spoken to by state authorities.

Moreover, Charron J. also indicated that thecommon law also recognizes the importance of police interrogation in the investigation of crime [emphasis is mine below]: As stated earlier, the right to silence, although now constitutionally entrenched, long pre-dates the Charter. The right to silence as acommon law principle was recently affirmed by this Court in R. v. Turcotte, [2005] 2 S.C.R. 519, 2005 SCC 50.

Stated broadly, thecommon law right to silence simply reflects the general principle that, absent statutory or other legal compulsion, no one is obligated toprovide information to the police or respond to questioning. At para. 41, Abella J., writing for the Court, reiterated Lamer J.'s definingstatement of the right in Rothman v.

The Queen, (SCC), [1981] 1 S.C.R. 640: In Canada the right of a suspect not to say anything to the police ... is merely the exercise by him of the general right enjoyed in thiscountry by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to dootherwise by law.

It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say thathe has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise.[Footnotes omitted; p. 683.] What the common law recognizes is the individual's right to remain silent. This does not mean, however, that a person has the right notto be spoken to by state authorities.

The importance of police questioning in the fulfilment of their investigative role cannot be doubted.One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thoughtthat useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed,if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident.Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime. (

i) Was the defendant statutorily compelled to give a statement to Officer Caicas? [64] The defendant had not been operating a motor vehicle when Officer Caicas spoke with the defendant on July 5, 2012, at 11:08a.m. and as such, there was no statutory compulsion for the defendant to provide information to Officer Caicas. (ii) Did Officer Caicas Have To Caution The Defendant Before Questioning The Defendant? [65] Officer Caicas had testified in the voir dire that he did not caution the defendant because he had not intended to charge thedefendant when he first went to the defendant’s residence, but had gone to the defendant’s residence to investigate whether thedefendant’s vehicle had been stolen or taken without the defendant’s consent. [66] Charron J. also summarized the requirement of police officers to caution a suspect in R. v.

Jagrup Singh, at paras. 31 to 33, andnoted that the confessions rule applies whether or not the suspect is in detention and that a police caution given to the suspect informsthe suspect of his right to remain silent. Charron, J. also recognized that the absence or presence of a police caution is also an importantfactor on the question of voluntariness of a suspect’s statement given to a police officer.

Moreover, as to when a police caution should begiven when a suspect has not been formally arrested nor under detention, Charron J. indicated that police officers are well advised togive the police caution to a person, which informs the person of their right to remain silent, in the circumstances when there arereasonable grounds to suspect that the person being interviewed has committed an offence [emphasis is mine below]: Therefore, the notion of voluntariness is broad-based and has long included the common law principle that a person is not obliged togive information to the police or to answer questions.

This component of the voluntariness rule is reflected in the usual police cautiongiven to a suspect and the importance attached (even before the advent of the Charter) to the presence of a caution as a factor indetermining the voluntariness of a statement made by a person under arrest or detention: see Boudreau v. The King, (SCC), [1949] S.C.R. 262; R. v. Fitton, (SCC), [1956] S.C.R. 958; and R. v. Esposito (1985), (ONCA), 24 C.C.C. (3d) 88 (Ont. C.A.). A common form of the police caution given to a person who has been charged with an offence is thefollowing: "You are charged with...

Do you wish to say anything in answer to the charge? You are not obliged to say anything butwhatever you do say may be given in evidence." Therefore, the police caution, in plain language, informs the suspect of his right toremain silent. Its importance as a factor on the question of voluntariness was noted by this Court as early as 1949 in Boudreau:

The fundamental question is whether a confession of an accused offered in evidence is voluntary. The mere fact that a warning was givenis not necessarily decisive in favour of admissibility but, on the other hand, the absence of a warning should not bind the hands of theCourt so as to compel it to rule out a statement. All the surrounding circumstances must be investigated and, if upon their review theCourt is not satisfied of the voluntary nature of the admission, the statement will be rejected.

Accordingly, the presence or absence of awarning will be a factor and, in many cases, an important one. [Emphasis added; p. 267.] Although the confessions rule applies whether or not the suspect is in detention, the common law recognized, also long before the adventof the Charter, that the suspect's situation is much different after detention. (As we shall see, the residual protection afforded to the rightto silence under s. 7 of the Charter is only triggered upon detention.) After detention, the state authorities are in control and thedetainee, who cannot simply walk away, is in a more vulnerable position.

There is a greater risk of abuse of power by the police. Thefact of detention alone can have a significant impact on the suspect and cause him or her to feel compelled to give a statement. Theimportance of reaffirming the individual's right to choose whether to speak to the authorities after he or she is detained is reflected in thejurisprudence concerning the timing of the police caution.

Ren Marin, in his text Admissibility of Statements (9th ed. (looseleaf)), at pp.2-24.2 and 2-24.3, provides a useful yardstick for the police on when they should caution a suspect: The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence.An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she woulddo if the person attempted to leave the questioning room or leave the presence of the officer where a communication or exchange istaking place.

If the answer is arrest (or detain) the person, then the warning should be given. These words of advice are sound. Even if the suspect has not formally been arrested and is not obviously under detention, police officersare well advised to give the police caution in the circumstances described by Marin. Of course, with the advent of the Charter, the s. 10right to counsel is triggered upon arrest or detention. The right to counsel has both an informational and an implementationalcomponent.

It seeks to ensure that persons who become subject to the coercive power of the state will know about their right to counseland will be given the opportunity to exercise it so they can make an informed choice whether to participate in the investigation againstthem. Therefore, if the detainee has exercised his s. 10 Charter right to counsel, he will presumably have been informed of his right toremain silent, and the overall significance of the caution may be somewhat diminished.

Where the suspect has not consulted withcounsel, however, the police caution becomes all the more important as a factor in answering the ultimate question of voluntariness. [67] However, as Charron J. confirmed in R. v. Jagrup Singh the constitutional requirement of Officer Caicas to inform the defendantof his right to counsel under s. 10(

b) of the Charter is only triggered when the defendant has been arrested or detained. In this case, thedefendant had not been under arrest before the defendant made the inculpatory statements.

Consequently, the question then becomeswhether the defendant had been detained by Officer Caicas, so that Officer Caicas had to Charterize and caution the defendant andprovide an opportunity for the defendant to call legal counsel before Officer Caicas could continue with his questioning of the defendant. (iii) Was the defendant detained by Officer Caicas when the defendant’s statement had been given? [68] When Officer was speaking with the defendant, the defendant had been in the defendant’s apartment and Officer Caicas had beenstanding in the hallway outside of the defendant’s apartment and the door to the defendant’s apartment had been open.

In addition,Officer Caicas had testified that the defendant had not been under arrest, that their conversation lasted only 20 minutes, and that OfficerCaicas had only decided to charge the defendant after his investigation had been complete. [69] In R. v.

Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59 (S.C.C.), at para 19, Iacobucci J., writing for the majority of theSupreme Court of Canada, had indicated that the concept of detention for the purposes of ss. 9 and 10 of the Charter has been held tocover a broad range of encounters between police officers and members of the public including stopping suspects for purposes ofidentification or interview, but that the constitutional rights recognized under ss. 9 and 10 are not engaged by being delayed or keptwaiting that involves no significant physical or psychological restraint [emphasis is mine below].

"Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so,the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes ofidentification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting".But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical orpsychological restraint. …

[ 70 ] From the circumstances of Officer Caicas speaking to the defendant at the front door of the defendant’s apartment while Officer Caicas was in the hallway and the defendant standing inside his apartment while the door was open, I do not find there had been a physical detention. Moreover, Officer Caicas had not physically touched the defendant nor had he told the defendant he was under arrest or that he would be charged until the end of their conversation.

As for any psychological detention, the defendant did not testify in the voir dire, so that the defendant’s state of mind cannot be determined for the time Officer Caicas had been speaking with the defendant in order to conclude whether there had been any form of psychological detention.

Moreover, the interview and investigative questioning only lasted approximately 20 minutes. [ 71 ] Therefore, I do not find that the defendant had been detained for the purposes of s. 9 and 10 of the Charter by Officer Caicas, and as such, Officer Caicas did not have to give the Charter cautions to the defendant before obtaining the defendant’s statement. (iv) Did Officer Caicas have reasonable grounds to believe the defendant had committed an offence, which would necessitate Officer Caicas giving the defendant a police caution, which would inform the defendant of his right to silence? [ 72 ] Before Officer Caicas had attended at the defendant’s residence, Officer Caicas had already received information through his cruiser’s computer that the defendant’s motor vehicle had to be investigated.

Moreover, Officer Caicas had testified that before he spoke with the defendant Officer Caicas already had information that the defendant’s vehicle had not been insured.

In addition, the defendant’s brother had been unable to provide Officer Caicas with any proof of insurance for the defendant’s vehicle when the defendant’s brother had been stopped at 10:36 a.m. on July 5, 2012, operating the defendant’s vehicle. [ 73 ] However, Officer Caicas said that he had attended the defendant’s residence to determine if the defendant’s vehicle had been stolen or taken without the defendant’s consent, since the driver of the defendant’s vehicle had not been the registered owner of the vehicle.

Furthermore, Officer Caicas said there had been three possible scenarios or outcomes in his mind when he had first arrived at the defendant’s residence, but did not want to make a preconclusion or predetermination before he had completed his investigation.

Those three scenarios mentioned by Officer Caicas were: (1) the defendant’s brother had taken the defendant’s vehicle without the defendant’s consent (2) the defendant’s vehicle had been insured with a valid contract of automobile insurance, or (3) the defendant had permitted his motor vehicle to be driven on a highway without insurance. [ 74 ] In addition, Officer Caicas testified that he did not want to preconclude about any of the possible scenarios before he completed his investigation. [ 75 ] In respect to the first scenario of determining whether the defendant’s brother had taken the defendant’s vehicle without the defendant’s consent, the defendant’s brother had been operating the defendant’s vehicle on a highway when Officer Caicas had received information from his cruiser’s computer about the defendant’s vehicle that the defendant’s vehicle had to be investigated.

After pulling over the defendant’s vehicle, Officer Caicas determined that the defendant had not been the driver of the defendant’s vehicle, but the defendant’s brother. The defendant’s brother had not provided Officer Caicas with any insurance documents for the defendant’s vehicle.

Therefore, one possible scenario for why the defendant’s uninsured vehicle may have been operated on the highway by the defendant’s brother is that the defendant had taken his vehicle off the road, since it had not been insured, but the defendant’s brother had surreptitiously taken the defendant’s vehicle onto the highway without the defendant’s consent or permission. In that scenario, the defendant would not be liable if the defendant’s vehicle had been taken and driven on the highway by someone else who had taken the defendant’s vehicle without the defendant’s permission or consent.

Thus, Officer Caicas’s question to the defendant had been a reasonable investigative question in respect to whether an offence may have been committed by the defendant’s brother.

Thus, at the point when Officer Caicas had arrived at the defendant’s apartment there would have been no reason or legal requirement for Officer Caicas to caution the defendant, since there were no reasonable grounds for Officer Caicas to believe that the defendant had committed an offence. [ 76 ] In addition, after the defendant stated to Officer Caicas that the defendant had been present when the defendant’s vehicle had been taken by the defendant’s brother and that he promised that the defendant’s vehicle had not been stolen by the defendant’s brother, Officer Caicas had still been left with the two remaining scenarios, which are the defendant’s vehicle had valid insurance coverage or that the defendant had permitted his vehicle to be operated on the highway without insurance.

If the defendant had valid insurance coverage for the defendant’s vehicle then Officer Caicas’s investigation would be complete, since the defendant being able to provide proof of valid insurance would conclude or resolve the third scenario. And, even though Officer Caicas testified that he already knew the defendant’s vehicle had not been insured, there still remained the possibility that the defendant had obtained insurance for the defendant’s vehicle between the time the defendant’s brother had been stopped at 10:36 a.m. and 11:08 a.m. when Officer Caicas arrived

at the defendant’s front door.

In addition, there is the possibility as well that the information that Officer Caicas had received that the defendant’s vehicle had not been insured had been incorrect or out of date and that the defendant had obtained insurance coverage for his vehicle. [ 77 ] Thus, despite Officer Caicas’s testimony that he already knew the defendant’s vehicle had not been insured, it would have been still prudent for Officer Caicas to continue his investigation into whether the defendant’s vehicle had been insured or not, instead of simply charging the defendant at that point with the offence of “owner permit vehicle to be driven on a highway without insurance”.

Nevertheless, Officer Caicas had acted prudently by providing an opportunity for the defendant to produce proof of insurance for the vehicle when he had asked the defendant about insurance for the defendant’s vehicle. [ 78 ] Moreover, if the defendant had provided proof of valid insurance then it would have also prevented Officer Caicas from acting on the third scenario that the defendant had permitted his vehicle to be operated on a highway without insurance. [ 79 ] However, once the defendant admitted to not having insurance coverage on his vehicle, Officer Caicas would have had the evidence to charge the defendant with the s. 2(1) (

b) C.A.I.A. offence. And, since the investigation would have been complete that that point, Officer Caicas did not need to continue his conversation with the defendant and provide the two-option explanation to the defendant that the defendant could choose between being charged with the s. 2(1) (

b) offence or to allow his brother to be charged with the criminal offence of “taking motor vehicle without owner’s consent”, unless Officer Caicas had been using the two-option explanation as a gambit to preclude the defendant from raising that particular defence at his trial that his vehicle had been taken and driven on the highway without his consent, especially when the defendant had not immediately informed Officer Caicas that his vehicle had been taken and driven by his brother without the defendant’s consent after having heard the two-option explanation of whom could be charged with an offence. [ 80 ] Accordingly, I conclude that Officer Caicas did not have reasonable grounds to believe that the defendant had committed an offence before Officer Caicas began speaking with the defendant and it had only been after the defendant had make the second of the two inculpatory statements that the defendant was in between insurance companies and that he had been presently working on another policy that Officer Caicas would have had the reasonable grounds to charge the defendant with the offence of “owner permit motor vehicle to be driven on a highway without insurance”.

And, since Officer Caicas did not have reasonable grounds to believe the defendant had committed an offence until the defendant’s second inculpatory statement, then Officer Caicas was not required to caution the defendant to inform the defendant about his right to remain silent. 6. RULING [ 81 ] The prosecution in this voir dire has proven beyond a reasonable doubt that the defendant’s statements were voluntary, and therefore, the defendant’s statements given to Officer Caicas on July 5, 2012, are admissible in the trial proper.

Dated at the City of Mississauga on March 27, 2014. ____________________________ QUON J.P. Ontario Court of Justice