R. v. Yogananthan, 2018 ONCJ 544

CITATION: R. v. Yogananthan , 2018 ONCJ 544 DATE: April 17, 2018 Information Number 17-4362 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. UMAJAN YOGANANTHAN R E A S O N S F O R D E C I S I O N V O L U N T A R I N E S S DELIVERED BY THE HONOURABLE MR. JUSTICE S.N. LATIMER On April 17, 2018 at Kitchener, Ontario

APPEARANCES A. McMaster Counsel for the Provincial Crown A. Fiszauf Counsel for Umajan Yogananthan TUESDAY APRIL 17, 2018 R E A S O N S F O R D E C I S I O N LATIMER J. (orally) These are my Reasons for Decision on the Crown Application to admit certain utterances as voluntary, specifically: statements orutterances allegedly provided by Mr. Yogananthan to a police officer following the completion of breath testing in the early morning ofJune 15, 2017. The Supreme Court of Canada condensed and re-stated the concessions rule in 2000 in R. v. Oickle 2000 SCC 38 , [2000] 147CCC (3d) 321 in an 8-1 Ruling.

The majority of the court stated as follows at paragraphs 68 and 69 and again at 71: “While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basicidea is quite simple. First of all, because of the criminal justice system’s overriding concern not to convict the innocent, a confessionwill not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrowIbrahim rule and the oppression doctrine recognize this danger.

If the police interrogators subject the suspect to utterly intolerableconditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Betweenthese two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to theentire circumstances surrounding a confession in making this decision.” “The doctrines of oppression and inducements are primarily concerned with reliability.

However, as the operating mind doctrine andLamer J.’s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception ofvoluntariness “that focuses on the protection of the accused’s rights and fairness in the criminal process”: J. Sopinka, S. N. Lederman andA. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule.

Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right tosilence, this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.” Going to paragraph 71: “Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts haveexcluded confessions made as a result of relatively minor inducements.

At the same time, the law ignored intolerable police conduct if it

did not give rise to an “inducement” as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above.” The test is a two-step analysis. First, is the statement voluntary in the sense it was the product of an operating mind and Mr. Yogananthan’s will was not overborne by inducements such as promises or threats or an oppressive circumstance.

This is a contextual analysis that looks at the entire circumstances of the accused/officer interaction. Secondly, there is an examination into potential police trickery that would shock the conscience of the community. I accept, as Mr. Fiszauf said, that conduct that perhaps amounts to police trickery but does not meet the shock the conscience test, should nevertheless be considered on the broader voluntariness inquiry.

Providing information to an arrested party about their right to silence is a prophylactic measure designed to ensure that people understand the right and what consequences will follow from speaking to a person in authority. This information is provided in what we call the “police caution”. There are two types of police cautions commonly referred to in criminal court: a primary and a secondary caution. There is no magic language to a caution, although it seems in each province the language becomes standardized.

The Ontario language of the primary caution - contained in pre-printed form on police notebooks and other documents - is as Constable Chen provided to Mr. Yogananthan. The primary caution is meant to relay that someone does not have to speak to the police; that they have the right to remain silent; that if they do speak, it may be used against them. This caution assists in ascribing a state of mind to someone who chooses to later speak to the police. Presumably, they are doing so knowing that (

a) they do not have to and (

b) that it may be used against them. The secondary caution, not provided in this case, serves to remind a detainee that if other officers have said something or done something that interferes or contradicts with what the primary caution indicated, they should ignore it or it should not influence their decision to speak to the present officer. This is often provided when an officer is dealing with an arrestee who has previously been dealt with by another officer or officers. The presence or absence of a caution is not determinative of the voluntariness of a statement to a person in authority.

It is a factor, often an important one, in assessing whether the Crown has met its burden. I have heard the arguments of both parties. The following factors are relevant to my conclusion that the Crown has not proven these statements voluntary beyond a reasonable doubt. 1 . A youthful adult was arrested for the first time by the police. When the primary caution was read, he had just been arrested. I accept this would have been a stressful experience. 2 . At the police station, prior to receiving legal advice, he was asked a series of question on something called the “detain sheet” or “prisoner log”.

These questions, I am told, are not investigation-specific but aimed at the safety of all detainees, including this one, in the police station. I make no comment on the 10(

b) aspects of this practice but note that this practice has the potential, in a particular case, to undermine the earlier caution. 3 . The accused was made subject to a 254(3) breath demand compelling him, by operation of law, to take

part in a breath testing procedure. I accept, as Mr. McMaster argues, the language of the demand is clear or at least fairly clear and on its face, excludes questioning. However, I do note that I have been told that this detainee was questioned additionally by the breath technician during the testing. 4 . There is, in my mind, a sufficient nexus between the breath testing and Constable Chen’s later questioning to warrant a secondary caution on the fact of this present case.

The manner in which Constable Chen approached the questioning, starting with certificates and moving towards incriminating questions, has the potential to confuse the arrestee with regard to what his legal right to silence involved in the circumstances. Given the age of the accused, his lack of experience in the criminal justice system, his alcohol consumption and the fact that he had earlier been questioned before 10(

b) implementation, and then compelled to provide breath samples, and then questioned

during that test process, and finally now being questioned again, in the absence of a clear break between the compelled process and Chen’s questioning, leaves me with a reasonable doubt regarding whether Mr. Yogananthan knew that he did not have to speak to Chen. 5 . The fact that Mr. Yogananthan spoke to counsel is important and relevant to this analysis but it does not erase or cure the doubt that otherwise exists in my mind. The absence of a secondary caution in the circumstances of this case leaves me with a reasonable doubt.

In the absence of evidence from the breath technician, I cannot place any meaningful weight on what was said or advised in the breath room. Further, as Mr. Fiszauf pointed out, the secondary caution is backwards looking, not forward. The fact that Mr. Yogananthan received legal advice and had some awareness of that advice, as evidenced in the statement itself, does not cure this doubt. 6 . Leaving aside any potential 10(

b) implications, of which I presently make no comment, the officer’s comments with regard to the legal advice received, using the metaphor of counsel advising the accused to jump off a cliff, is not helpful from a voluntariness perspective. In Regina v. Worrall [2002] O.J. 2711 is a judgment of Justice Watt, at the time sitting on the Ontario Court, General Division. His Lordship said at paragraph 106: “Voluntariness implies an awareness about what is at stake in speaking to persons in authority or declining to assist them.” The circumstances of this case leave me with a doubt about whether Mr. Yogananthan was so aware. The Crown’s Application is dismissed.