R. v. M.D., 2015 ONCJ 608

Information No. 2811 998 14 12696 Citation: R. v. M.D. , 2015 ONCJ 608 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. MD R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE M.S. FELIX on September 14, 2015 at OSHAWA, Ontario INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 517(1) OF THE CRIMINAL CODE. ANY PUBLICATION CONTRARY TO

SECTION 517 IS A CRIMINAL OFFENCE. INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE BY ORDER OF THE HONOURABLE JUSTICE M.S. FELIX, ONTARIO COURT OF JUSTICE DATED JULY 10, 2015. APPEARANCES : J.A. Barrett Counsel for the Provincial Crown S. Yeghoyan Counsel for the Applicant INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 517(1) OF THE CRIMINAL CODE. ANY PUBLICATION CONTRARY TO

SECTION 517 IS A CRIMINAL OFFENCE.

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE BY ORDER OF THE HONOURABLE JUSTICE M.S. FELIX, ONTARIO COURT OF JUSTICE DATED JULY 10, 2015. MONDAY SEPTEMBER 14, 2015 R E A S O N S F O R J U D G M E N T FELIX, J. (Orally): Introduction : The applicant is charged with allegations of sexual assault, contrary to

section 271 of the Criminal Code of Canada , and sexual exploitation, contrary to

section 153.1(1) of the Criminal Code of Canada , arising from an investigation in July, 2014. He seeks the exclusion of a statement he provided to the Durham Regional Police on July the 11th, 2014, because of an asserted violation of

section 10(

b) of the Charter of Rights and Freedoms . He concedes the voluntariness of the statement. The Durham Regional Police were investigating a sexual assault allegation. The complainant was an adult female with physical or mental disabilities. The Crown allegation is that the applicant was a caregiver for the complainant, and inappropriate criminal sexual conduct occurred. The circumstances of this Charter application revolve around the statement provided to the police by the applicant. The applicant asserts that he was detained at the time of the statement. This detention triggered an obligation on the police to provide him with his rights to counsel in compliance with

section 10(

b) of the Charter . The respondent submits that the applicant spoke freely and voluntarily. He was not detained. There was no such obligation to provide rights to counsel. As such the Charter application hinges on a determination as to the issue of detention. Detention : In R. v. Grant , 2009 SCC 32 , [ Grant ] the Supreme Court of Canada set out the following test at paragraph 44:

44 In

summary we conclude as follows: 1) Detention under subsections 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 2) In cases where there is no physical restraint or legal obligation it may not be clear whether the person has been detained.

To determine whether the reasonable person in the individual circumstances would conclude that he or she had been deprived by the state, of the liberty of choice, the court may consider inter alia the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance, maintaining general order, making general inquiries regarding a particular occurrence or singling out the individual for focused investigation.

b) The nature of the police conduct, including the language used, the use of physical contact, place where the interaction occurred, the presence of others and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age, physical stature, minority status, level of sophistication. In R. v. Moran (1987), 36 Criminal Code of Canada 3d 255, Ontario Court of Appeal, Mr. Justice Martin for the Ontario Court of Appeal, set out the following considerations at paragraph 82: "I venture to suggest that in determining whether a person who subsequently is an accused was detained at the time he or she was questioned at the police station by the police. The following factors are relevant.

I do not mean to imply, however, that they are an exhaustive list of the relevant factors nor that any one factor or combination of factors or their absence is necessarily determinative in a particular case. These factors are as follows: 1 . The precise language used by the police officer in requesting the person who subsequently becomes an accused to come to a police station and whether the accused was given a choice or expressed a preference that the interview be conducted at the police station, rather than at his or her home; 2 .

Whether the accused was escorted to the police station by the police officer or came himself or herself, in response to a police request; 3 . Whether the accused left at the conclusion of the interview or whether he or she was arrested; 4 .

The stage of the investigation, that is whether the questioning was part of the general investigation of a crime or possible crime or whether the police had already decided that a crime had been committed and the accused was the perpetrator or involved in its commission, and the questioning was conducted was conducted for the purpose of obtaining incriminating statements from the accused; 5 . Whether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated; 6 .

The nature of the questions: whether they were questions of a general nature, designed to obtain information or whether the accused was confronted with evidence pointing to his or her guilt; 7 . The subjective belief by the accused that he or she is detained, although relevant, is not decisive because the issue is whether he or she reasonably believed that he or she was detained. Personal circumstances related to the accused include such as low intelligence,

emotional disturbance, youth and lack of sophistication are circumstances to be considered in determining whether he had a subjective belief that he was detained." The Grant analysis requires consideration of "significant physical or psychological restraint." ( Grant , at para 44 ) Based on the evidence on this application I find that there was no significant physical restraint. At the time the applicant provided a statement the applicant was not under arrest. He was not handcuffed or restrained in any way.

The only physical contact prior to arrest was that occasioned by a polite, friendly greeting, when Detective Loughlin and Detective Briese met him in the lobby of the police station. For reasons that I will elaborate on below, I find that he was not confined in the interview room. Further, I find that when I evaluate the circumstances overall, there was no circumstance giving rise to a legal obligation to comply with a restrictive request or demand made by police.

The remaining consideration with respect to psychological restraint is whether a reasonable person would conclude that by reason of the police conduct in this case the applicant had no choice but to comply. Relevant to this objective test and all three conclusions I make the following findings: Prior to the Request for the Applicant to Attend the Station 1. The police were investigating an allegation of sexual assault. 2. The police did not have a statement from the alleged complainant of sexual assault. 3.

The alleged complainant of the sexual assault had development deficits and there was some concern as to whether she could provide a statement concerning the allegations. 4. The police did not possess reasonable and probable grounds to believe that a criminal offence had occurred prior to the interview with the applicant. 5. The police had a public duty to investigate an allegation of a criminal offence. 6. Detective Loughlin had the benefit of an O.P.P. synopsis. This material identified the applicant as a person potentially involved in the allegations.

The police were within the proper parameters of a criminal investigation in their effort to seek to speak to the applicant. 7. The police had determined that the applicant was a person of interest. 8 . The police had determined that the applicant was a suspect. 9 . The police had not determined that the applicant would be arrested that day. 10 . That Detective Loughlin enlisted the assistance of a specialized officer to do the interview, and the interview was held at the specialized sexual assault unit office does not mean that the police had made a decision to arrest the applicant.

This was really a product of the

schedule of the applicant and frankly the convenience of the specialized officer, Detective Briese. This was not an attempt to lure the applicant to the area or to facilitate his capture. The Request to Attend the Police Station

1. Detective Loughlin contacted the applicant by telephone on July the 10th, 2014 and asked him to attend the police station. Theapplicant was not told the reason why he was being requested to attend. I am not concerned that the police failed to provide details overthe phone. In this day and age police officers are repeatedly cautioned by courts on a daily basis to make efforts to permanently recordstatements with witnesses, suspected and defendants. It is therefore not surprising that Detective Loughlin, an experienced detective,declined to get into the details over the phone. 2.

The applicant was not available on the day he was contacted. He told the police he had just returned from an excursion and he neededto unload his vehicle. He told the police that his spouse would be unable to perform this task. He also advised the police that he wastired from the commute. Detective Loughlin did not insist on his attendance at the station at that moment. 3. Detective Loughlin offered to send a police car to pick up the applicant. Again the applicant declined. This was accepted byDetective Loughlin without protest. 4. Detective Loughlin suggested the following day.

For a third time the applicant declined. He indicated he had a golf game with a teeoff at 9:00 a.m. 5. Finally an agreement was reached wherein the applicant would attend the police station at 3:00 p.m. the following day. The wordagreement is used deliberately in this judgment. Detective Loughlin did not insist on an earlier meeting. Detective Loughlin Detectivedid not seek to accelerate the time table. Detective Loughlin did not take any other action to expedite the interview. The reason why hedid not take any further steps is because he knew he did not have the authority to do so.

He did not possess reasonable and probablegrounds for arrest. The conversation concerning the request to attend the station was not a demand or direction, nor was it coercive inany way. 6. The applicant voluntarily drove a great distance by himself to the police station, to the interview. (R. v. Pomeroy, 2008 ONCA 521, [2008 OJ No. 2550(QL)(ONCA)para 32) Circumstances of the Statement 1. The applicant was greeted and met by both Detective Loughlin and Detective Briese in the lobby of the police station after 3:00 p.m. 2. There was a friendly greeting. 3.

The applicant was told that Detective Briese would conduct the interview. 4. The applicant was told that Detective Loughlin would be monitoring the interview as it was recorded. 5. There was no language barrier, drug abuse, intoxication, mental health issue or other medical situation apparent during the interview. 6. The applicant was interviewed in a witness interview room. The room was painted, had a comfortable couch and furniture. 7. The applicant was not interviewed in an available interrogation room for accused persons or suspects. 8.

The applicant was advised that the interview was audio and video recorded. 9. The applicant was told that Detective Briese would be truthful and that he should be truthful too.

10. Detective Briese advised the applicant that if he made an error the applicant should feel free to correct him. 11 . Detective Briese advised the applicant that he could use any words he needed, and that he would not cause offence. 12 . Detective Briese said, "Go ahead into it an - and - and figure it all out right? And, uh, um, not that I'm alleging anything, I just want you to know this is vol-volun - that you're in here voluntarily." 13 . The applicant acknowledged, "Yeah." 14 . Detective Briese further advised: "This door is only closed for our privacy, alright?

If any time, Mike, you wanna leave, you just tell me. Alright? And I'll open the door, we'll take you outta here, you're not in here, you're not in custody, you're not...." and it trails off. 15 . The applicant specifically acknowledged each piece of information provided. 16 . Detective Briese further advised the applicant that if he wished to speak to anyone just tell him. 17 . Detective Briese went on to simply ask the applicant, "Do you have any idea why, you're - we're here today?

I don't know." To which the applicant responded, "Yeah, I have an idea." The Detective - Detective Briese asked, "What do you think?" The applicant replied with the first name of the alleged complainant in this matter, and went on to indicate that he had an indiscretion with her. Detective Briese asked what the indiscretion was. The applicant went on to relate an incident of sexual touching. 18 . When the incident of sexual touching was revealed Detective Briese explicitly said that the applicant's jeopardy had changed.

Detective Briese physically demonstrated on the videotape statement an action which I find was designed to stop the applicant from saying anything further. He raised his hand and tried to interrupt the applicant. The applicant was promptly told that he was under arrest and Detective Briese provided the requisite information concerning rights to counsel and facilitated access to counsel. 19 . Of particular note Detective Briese did not even have his police notebook with the wordings of the rights to counsel and caution in the interview room. He had to paraphrase the rights to counsel and caution. 20 .

The disclosure by the applicant was approximately three minutes into the interview. The Applicant's Evidence on the Voir Dire The applicant testified on the voir dire and outlined two considerations relevant to the Charter application. First, he indicated that he felt detained in the interview room because he was concerned about the presence of Detective Loughlin outside the room. He testified that he felt that if he had to leave he would have to encounter Detective Loughlin and this was intimidating to him, because of the size of Detective Loughlin.

Second, he indicated that he felt detained in the room because he understood that he would have to make a request or ask Detective Briese prior to leaving the room. On the evidentiary record before me I am not persuaded by this evidence from the applicant. There are many reasons for this. 1. A plain language common sense review of the record reveals that the applicant voluntarily attended the police station. He was aware the interview was recorded. He was free to leave at any time. He was free to speak to anyone at any time. 2.

The main feature of the interaction between the police and the applicant was polite, respectful, friendly discourse. 3. The police were never observed to be confrontational or aggressive, nor were they alleged to be. 4. There was no objective basis to be fearful or concerned about the physical presence of Detective Loughlin in the office outside of the interview room. 5. The statement was properly conceded to be voluntary. 6. Detective Briese explained that he asked the applicant to let him know if he wanted to leave at any time because that is what most witnesses do.

They preface the act of leaving or wanting to leave with a statement to that effect or request to leave. 7. The time span between the disclosure by the applicant to the efforts by Detective Briese to stop him by word and gesture is measured in several seconds. 8. I do not find that Detective Briese should have subjectively interpreted the disclosure of an indiscretion as triggering an obligation to immediately cease the interview and provide rights to counsel. The detective did not know what an indiscretion was referable to. Further, the flow of the interview moved quickly to the disclosure by the applicant.

The sequence of events moved quickly. Conclusion For the purposes of a Charter argument, detention refers to a suspension of an individual's liberty interest due to a significant physical or psychological restraint at the hands of a state actor. ( R. v. Suberu , 2009 SCC 33 at para 21 (Suberu) ; Grant , para 44 ) Objectively speaking I must assess whether the police conduct in this case would cause a reasonable person to conclude that that applicant no longer possessed freedom of choice in cooperating with the police. ( R. v.

Suberu , at para 22 .) That he was a person of interest or even a suspect does not determine the issue of detention ( Pomeroy , at para 33 ). In Pomeroy the police had reasonable and probable grounds to arrest for a breach of probation and had made a decision to arrest the defendant for breach of probation. They held off executing this decision in the hopes that Mr. Pomeroy would provide information about a murder investigation. In the case at bar the police had no reasonable and probable grounds to arrest for any offence and did not have the intention to arrest when the gentleman arrived at the police station.

The Court of Appeal had no difficulty with the approach of the police in Pomeroy . In this particular case I do not find that there was much confusion about potential suspects and multiple persons with names similar to the applicant.

Detective Briese described the applicant as a person of interest. Detective Loughlin did not. There was some limited foundation to be concerned about other persons named Mike, who had some contact with the alleged victim, but as a whole the O.P.P. report furnished sufficient information such that it was clear that the applicant was a person who had to be interviewed. The evidence available to the police strongly supported an inference that the applicant was a suspect, but the police had no ability to compel him to attend. They would not have had grounds for example for an arrest warrant.

He was entitled, the applicant was, to come into the interview and say nothing. He was entitled to simply decline to be interviewed. Detective Briese explained that many times interviews happen and there are no criminal charges and the case remains outstanding, which I understood to mean unsolved. Police officers must determine whether or not they have reasonable grounds to believe that an offence has occurred. Where there is no statement from the alleged victim, for whatever reason, this believe must be supported by other evidence. I am convinced that the police possessed a hope that the applicant would speak.

They were entitled to this hope. Consistent with this hope their interactions with the applicant were friendly and polite - I note parenthetically, as they always should be. The tenor of the interaction was not aggressive, oppressive, directive or demanding. The gentleman before the court was not detained and decided of his own free will to speak to the police. The environment was comfortable and he was treated with dignity and respect. The applicant is not a timid person whose free will was overborne by the circumstances.

The truth of the matter, based on all of the evidence on this application is that the applicant is and was a good person. He has contributed to his community and society in many ways. He has some health issues and is devoted to his spouse. What happened that day, in my respectful view, is that he made a choice to disclose to the police. There are many possible explanations for this choice. There may even be multiple reasons that he made this choice, consistent with his previous good character. The application is dismissed.

The statement of the gentleman before the Court is admissible. ...PROCEEDINGS RECORDED BUT NOT TRANSCRIBED (Discussion regarding future dates.) M A T T E R A D J O U R N E D FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Roberta McDowell, certify that this document is a true and accurate transcript of the recording of R. v. MD, in the Ontario Court of Justice held at 150 Bond Street East, Oshawa, Ontario L1G 0A2 taken from Recording No. 2811-102-20150914-084512-10- FELIXMA.DCR, which has been certified in Form 1. September 23, 2015 (Signature of Authorized Person)

Transcript Ordered: September 14, 2015 Transcript Completed: September 23, 2015 Ordering Party Notified: September 23, 2015