R. v. D.(D.), 2014 ONCJ 619

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; CITATION: R. v. D.(D.) , 2014 ONCJ 619 DATE: 2014·11·14 COURT FILE No.: Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — D D and N H, (young persons) Before Justice E. B. Murray

Ruling on Voir Dire released on November 14, 2014 Ms. Lynne Bridger .................................................................................. counsel for the Crown Ms. Ingrid Grant ........................................................................ counsel for the defendant D D Ms. Maija Martin ........................................................................ counsel for the defendant N H MURRAY, E. B.

J.: [ 1 ] D D and N H are charged with robbery with a firearm and disguise with intent to commit an indictable offence in relation to a jewellery store robbery which occurred in Toronto on December 17, 2007, when both defendants were 17 years old. [ 2 ] Mr. D (hereinafter referred to as “the Defendant’) was arrested on these charges on September 18, 2013, when he was 23 years old. He gave a statement to police the same day which was recorded by video and audio tape. The Crown seeks to introduce this statement at trial. That request is opposed by Mr. D.

A voir dire was held to determine it admissibility. [ 3 ] The Crown has the onus of establishing that the statement was made voluntarily. I find that it has not met this onus, and will not admit the statement. My reasons for this decision follow. Evidence [ 4 ] I heard from 8 witnesses on the voir dire .

Also in evidence were a video of defendant’s booking at 54 Division, prior to giving his statement; a video of the Defendant giving his statement; headshot RIKKI photos, black and white and in colour, of the Defendant taken after giving his statement and before going into the cells; and photographs of bruises on the Defendant’s body taken on September 19, 2013 by witness L.

P. [ 5 ] The Crown witnesses were Detective Michael Mullen, Detective Dmitros Tsianos, Detective Constable Dmitrios Apostolopoulos, and Detective Constable Alan Bartlett. [ 6 ] Detectives Mullen and Tsianos arrested the defendant at a YMCA in west end Toronto.

They testified that they advised the Defendant of the reason for his arrest—a allegation that he was suspected in a 2007 robbery—and of his rights, and other than that said nothing to him before turning him over to D.C.s Apostolopoulos and Bartlett for transport to 54 Division station for questioning. [ 7 ] D.Cs Apostolopoulos and Bartlett testified that they had no conversation with the Defendant. At 54 Division they conducted a strip search of him, noting no injuries. They placed him in interview Room B, and left shortly thereafter.

Interview Room B has no windows and contains no camera which records events in that space. Detectives Mullen and Tsianos testified that the room is often used as a holding cell before questioning. [ 8 ] Detectives Mullen and Tsianos testified that they said nothing to the defendant while he was in this room.

As the Defendant had indicated at booking that he wished to speak to duty counsel, Detective Mullen made these arrangements and passed a phone to the Defendant for that purpose; the Defendant knocked on the door of the room and passed the phone back when his conversation was completed. [ 9 ] Four hours elapsed from the time that Detectives Mullen and Tsianos arrived at 54 Division and their videotaped interview of the Defendant. The officers’ evidence is that they spent this time doing paperwork related to the arrest and preparing for the interview.

When they were ready, they escorted the defendant to another room that contained video equipment, where they took his statement. [ 10 ] Defence counsel put to Detectives Mullen and Tsianos that they had assaulted the Defendant in interview Room B demanding that he admit complicity in the robbery prior to the video taping of his statement; that, when he agreed to admit to the robbery, they told him what to say in the statement; and that they stopped the videotaping twice to “correct” the Defendant, because he was not performing convincingly.

Both officers flatly denied these allegations. [ 11 ] The Defendant’s statement was taken in 17 minutes. In the statement the defendant admitted to participating in the robbery, saying that he had travelled to and from the store in east end Toronto by subway, had grabbed three trays of rings, and had worn a mask and latex gloves during the robbery.

He said nothing about other participants in the robbery. [ 12 ] The videotape of the questioning, which I viewed, does not show either Detective Mullen or Tsianos as threatening or overbearing. [ 13 ] After the Defendant’s statement was completed, headshot RIKKI photos were taken of the Defendant before he was lodged in the cells. Black and white -- and later colour sets -- of those photos were identified by one of the officers. [ 14 ] The colour print of one of those pictures shows a dark bruise and a bump on the Defendant’s left temple.

[ 15 ] The defendant’s evidence is that Detectives Mullen and Tsianos threatened him and beat him in interview room B until he agreed to give a statement admitting participation in this robbery and addressing Mr. H’s role in that (and other) crimes, despite his protests that he knew nothing. The Defendant testified that Detective Tsianos slapped him in the face repeatedly, and that when the Defendant curled into a fetal position, Detective Tsianos elbowed him and hit him in the ribs.

The Defendant testified further that at one point in the interrogation, Detective Mullen advised him that this could “all be over” if he was honest; when the Defendant insisted he knew nothing about the robbery, Detective Mullen bashed his head against the wall, pushed his head down to the table where he was seated, and Detective Tsianos hit the left side of his head. The Defendant testified that Detective Mullen then punched him in the genitals.

The Defendant said that later in the interrogation, he was told to remove his shirt and hit in the torso; the officers then removed his pants and pushed him to the floor, where Detective Mullen kicked him in the genitals. [ 16 ] The Defendant’s evidence is that he agreed to provide a statement admitting his own involvement in the robbery, stipulating that he would not implicate anyone else. He says that the detectives reviewed with him the information that he should include in the statement before taking him to the video room.

The Defendant’s evidence is that he began the statement twice, and was stopped by the officers because they found his mien or his responses unsatisfactory. The defendant testified that after each pause and correction the officers inserted a fresh DVD in the recording equipment. [ 17 ] The Defendant was questioned aggressively by Crown counsel as to why he did not file a complaint about the police misconduct he alleged. He testified that he had considered this idea, but was afraid to complain because of possible reprisals by police. [ 18 ] I heard from 4 additional defence witnesses. • Dr.

H V has been the Defendant’s doctor since he was a small child. Dr. V testified that he examined the Defendant on September 20, 2013, after the Defendant came to him reporting that he had been beaten by police. The Defendant complained of feeling pain “all over” and of headache. Dr. V noted 5 areas of bruising—the left temple, two areas of the chest, the left hip and the back of the left knee. Some bruising was extensive—for example, a bruise on the chest was 9x5 centimetres. Dr. V was concerned that the Defendant might have internal injuries, and sent him for x-rays, which proved negative.

The Defendant returned to see Dr. V on September 23, 2013, complaining of dizziness and blurred vision. Dr. V did not detect a neurological problem, but advised the Defendant to go to an emergency ward if his condition worsened. • L P is a friend and former girlfriend of the Defendant. She was in an intimate relationship with him in September 2013. She testified the Defendant had slept at her home on the evening of September 17, 2013, where they had sexual relations. She had seen him unclothed and noted no injuries anywhere on his body.

She testified further that the Defendant called her from his home upon his release from custody on September 19, 2013, advising her of what had happened. She went to his home, and they travelled back to her residence where she took photos of bruises of various parts of his body. Nine of those photos were entered into evidence, and were identified by the Defendant as showing bruising on his left temple, butt cheek, back, calf, torso and elbow. Ms. P’s evidence is that some of these bruises worsened—grew darker—in the days after she took these pictures. Ms.

P testified that she noted an injury on the Defendant’s penis, but that he would not permit her to photograph that area of his body. • C L is the Defendant’s mother. The Defendant lives with her and his sister and father. Mrs. L testified she attended court on September 19, 2013 to assist in obtaining the Defendant’s release, and they returned home. Her evidence is that the Defendant advised her what happened to him, and that after he showered she saw some bruising on his body. She applied an Asian ointment to his bruises. • J K is a long -time friend of the Defendant. He works for the YMCA as a personal trainer.

He testified that on September 18, 2013, he and the Defendant were tanning together at Mr. K’s home, planning to go on to the Y to work out. The Defendant was wearing shorts and had removed his shirt; Mr. K observed no injuries on his body. Mr. K was present for the arrest of the Defendant at the Y, and called his older brother to advise what had happened. On September 19, 2013 after his release, the Defendant called Mr. K, who came to his home. He advised Mr. K of what had happened to him, and removed his shirt to illustrate. Mr. K testified that he saw bruises on the Defendant’s torso and back and on his head.

He said that the Defendant’s mother was crying, and applying salve to his bruises. Rule in Browne v Dunn [ 19 ] I will deal at this point with the submission by the Crown that much of the evidence from the defence offends the rule in Browne v Dunn. [ 20 ] Although Detectives Mullen and Tsianos were asked about whether they assaulted or threatened the Defendant, it was not put to them that defence counsel intended to introduce independent evidence on this point calling their credibility into question, evidence that included photos of the Defendant taken after his release.

The Crown did not object to this evidence at the time it was introduced by the defence. She did not offer any reply evidence. In submissions, however, she raised the issue as to whether this evidence offended the rule in Browne v. Dunn .

[21] In my view, the rule in Browne v. Dunn was breached by the failure of the defence to put to the detectives the independentevidence that the defence intended to introduce --to support the claim that the Defendant was assaulted by them -- and to give theofficers an opportunity to respond. However, as set out in Sopinka’s Law of Evidence in Canada, the rule is designed to accord fairnessto witnesses and the parties, and is not absolute[1]. The extent and manner of its application is to be determined by the judge in all thecircumstances of the case.

Factors to be considered include whether notice is given to a witness that his credibility is in issue or whetherit is obvious from the nature of the testimony that credibility is in issue. [22] In this case, it was clear at the outset of the hearing that the credibility of both detectives was in issue. Both officers in chiefdenied that they assaulted or threatened the Defendant. Both officers testified in chief that they had not been alone with him prior to thevideotaping.

Detective Mullen identified in chief the black and white RIKKI photos of the Defendant, on which no injury was apparent.The Crown had the option of calling reply evidence if she believed that either officer needed to address any new points raised by thedefence witnesses, and did not. In my view, fairness does not require that I exclude the evidence of the defence witnesses other than theDefendant himself. The Law [23] A confession in an out-of-court statement by an accused person can only be admitted into evidence if the Crown establishesbeyond a reasonable doubt that the statement was made voluntarily.

If the statement was not voluntary, than there is a concern about itsreliability as well as the fairness of the trial process. [24] The Supreme Court of Canada held in R. v. Oickle (2000) 2.S.C.R. 3 that a confession can be found to be involuntary if it isobtained as a result of police threats or promises, oppression, or other police trickery, or the absence of an operating mind. [25] As the Defendant testified in this voir dire, I must approach the analysis of the facts following the direction given by theSupreme Court of Canada in R. v.

W.(D.) (1991) (SCC), 1 S.C.R. 742: • If I believe the Defendant’s evidence that he was threatened and beaten into giving his statement, then I must find in his favour onthis issue. • Even if I do not believe his evidence, if that evidence raises a reasonable doubt in my mind as to whether the statement was madevoluntarily, I must find in his favour. • Even if the Defendant’s evidence as a whole does not leave me with a reasonable doubt, I may find that he made the statementvoluntarily only if the rest of the evidence that I do accept proves this issue beyond a reasonable doubt. [26] Caselaw has established that there is no requirement that the WD analysis be carried out in any set order, as long as the logicof the analysis is followed.

Analysis Crown evidence [27] The transport officers Apostolopoulos and Bartlett, who conducted the strip search of the Defendant, gave uncontroversialevidence. D.C. Apostolopoulos testified that he was aware that one purpose of such a search was to have evidence as to a Defendant’scondition upon entering a station for questioning, to aid in any subsequent investigations of police misconduct. [28] Defence counsel alleged a number of reasons why I should not rely on the evidence of Detective Mullen and DetectiveTsianos. • She submits that Detective Tsianos was evasive and Detective Mullen defensive. I do not agree.

Both officers gave their evidencein a straightforward manner. Each officer’s evidence was internally consistent and consistent with the other officer’s testimony. Theofficers were helpful midway in the hearing in supplying the colour set of the RIKKI photos of the Defendant.

These photos (unlike theblack and white photos) clearly showed bruising on the Defendant’s left temple. • Counsel submits that the Crown’s evidence is deficient in that there is no video of what occurred in interview room B and nocorroboration from other officers as to what Detective Mullen and Detective Tsianos were doing in the four hours that the Defendant wasin interview Room B before his video statement was taken. Such evidence would have been helpful to the Crown, but I do not draw a

negative inference from the fact that it was not offered. • Counsel submits that the detectives’ evidence that they spent four hours on paperwork and prepatory investigation before interviewing the Defendant is implausible, and should not be accepted. However, this was a cold case, six years old. I do not find it implausible that the detectives would want to attempt gather some information before interviewing the Defendant.

Defendant’s evidence [ 29 ] The Crown submits that the Defendant’s evidence should be rejected completely for several reasons, which are outlined below. • The Defendant’s demeanor on the videotape of the confession does not indicate the distress that would be expected after the vicious assault which he describes. I do not accept that a victim of such an assault should be expected to behave in a particular fashion, and decline to put significant weight on this factor. • The Defendant was evasive in his evidence.

I do not agree. • The Defendant was inconsistent in his evidence before me and in his statements to others (testified to by them) as to the duration of the assaults. The Defendant’s evidence was that it seemed like he was in interview Room B for “24 hours”, and that he had no watch and that there was no clock in the room. He said that he did not have a good sense of the time involved on September 18 th or on the next day when he was released. It was only later that he had more precise times with respect to his arrest, arrival at 54 Division, and time that his statement was videotaped.

That may be a reasonable explanation of variations in the Defendant’s statements as to duration of the assaults. I acknowledge, however, that the Defendant may have exaggerated the duration of the assaults in speaking to others. That does not lead me to reject his evidence entirely on this issue, given the corroborative evidence that exists. • The Crown submits that I should draw a negative inference from the Defendant’s failure to file a complaint about police misconduct. The reluctance of young people from racialized communities to make such complaints has been the subject of comment in other cases.

I do not find the Defendant’s explanation unreasonable, and decline to draw such an inference. • The Crown submits that the Defendant’s failure to ask Dr. V to examine his penis calls his credibility into question. I do not agree. I accept the Defendant’s evidence that the discomfort he felt in this area had diminished by the time he saw Dr.

V, and that he was reluctant to have the doctor examine this area of his body unless it was necessary. • The Crown submits that if the Defendant’s evidence about the beatings he received is accurate, then the court should have received evidence of more serious and extensive injuries. I cannot reach that conclusion based on the evidence before me. There is no expert evidence on this point. As I observed above, the Defendant may have exaggerated the assaults he describes.

That does not lead me to reject his evidence entirely on this issue, given the corroborative evidence that exists. [ 30 ] I recognize that the Defendant has a clear interest in preventing his statement from going into evidence. I accept that the Defendant may have embellished some of his evidence as to the assaults he describes. If the Defendant’s evidence was the only evidence of these assaults before this court, that might not raise a reasonable doubt in my mind as to whether his confession was voluntary.

However, the other evidence—both from independent witnesses and from the transport officers—corroborates his story that he was assaulted in interview Room B prior to giving his statement. That evidence raises a doubt in my mind as to whether the statement was given voluntarily.

Other evidence [ 31 ] I turn to the evidence corroborative of the Defendant’s testimony about the assaults. • The evidence from officers Apostolopoulos and Bartlett establishes that at the time they strip searched the Defendant, they saw no injuries. • The RIKKI head shot photos taken of the Defendant immediately after he gave his video statement clearly shows one of the injuries complained of, the bruising of the left temple.

• The evidence of Mrs. L and of Ms. P and of Mr. K speaks to the bruising of the Defendant observed soon after his release from custody, bruising that was not observed by Ms. P the evening before his arrest or by Mr. K shortly before his arrest. • The photos taken by Ms. P document that bruising. Two of the bruises are so evident that it is not possible that they were missed by the officers conducting the strip search. • The evidence of Dr.

V also establishes that the Defendant suffered from bruising within a day of his release, and that he complained of pain all over his body and of headache. [ 32 ] The Crown in submissions conceded that Dr. V was independent, and that Mrs. L and Ms. P were “sincere”. She argued that Mr. K was not believable, that he was biased and fabricated evidence to help the Defendant—e.g., a bruise on the Defendant’s back, which the Crown asserts was noted by no one else. I do not accept this submission. The bruise in that location was photographed by Ms.

P. [ 33 ] The further submission of the Crown is that the evidence of these witnesses should be discounted because there is no reliable evidence as to when the bruising took place. I do not accept that submission. The evidence noted above at the very least raises a reasonable doubt in my mind as to whether the Defendant was assaulted in interview Room B immediately before his videotaped statement was taken. It is corroborative of his evidence that he was beaten. [ 34 ] I am not persuaded beyond a reasonable doubt that his statement was voluntary, and it will not be admitted into evidence.

Released: November 14, 2014 Signed: Justice E. B. Murray