Her Majesty the Queen - v. -, 2020 SKPC 35

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 35 Date: September 1, 2020 Information: 991119402 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Courtney Faye Dillon Appearing: Ms. M. Larson For the Crown Mr. J. Kriegler For the Accused DECISION ON VOIR DIRE F.M. DAUNT , J [ 1 ] Courtney Dillon is charged with stabbing Tonisha Fulton on January 25, 2020. Crown counsel seeks to tender into evidence Ms. Dillon’s videotaped statement to police.

The issue on this voir dire is whether the Crown has proven beyond a reasonable doubt that the statement was voluntary. In other words, has the Crown proven that Ms. Dillon understood her right to remain silent, yet freely and voluntarily chose to give evidence against herself? EVIDENCE ON VOIR DIRE

[ 2 ] At around 11:30 p.m. on January 25, 2020, several members of the Prince Albert Police Service responded to a report of a woman “bleeding out” inside an apartment in the midtown area. On arrival, they found civilians in the hallway, one of whom was attempting to pry open the door. Given the urgency of the situation, Sergeant Tiessen kicked open the heavy door, which fell onto Courtney Dillon, who was sitting on the floor just inside the apartment. This caused an injury to Ms. Dillon’s head and a visible blood trail on her face. Tonisha Fulton was locked inside the bathroom suffering from serious injuries.

While police attended to Ms. Fulton, Courtney Dillon walked away down the hallway toward the exit. She encountered Constable Gahrha, a police officer with two years’ experience. Constable Gahrha noted she was not wearing shoes and her socks had blood on them. Thinking she might have been an assault victim, he asked her if she was okay and whether she needed medical attention. She was calm. She gave him her name when asked. Constable Gahrha could not recall if she had been drinking, although he did not smell anything on her.

He did testify that she might have been under the influence of some other substance, but he admitted to limited expertise in detecting drug intoxication. Constable Grolla then shouted down the hallway for him to arrest her for aggravated assault, which he did. He handcuffed her behind her back, at which point her demeanour changed. Although physically compliant, she started saying “random stuff” and would not provide any information. She said her name was Hitler, for example. Constable Gahrha grew frustrated with her and may have raised his voice.

He escorted her to his police vehicle and placed her in the back seat. [ 3 ] That vehicle is equipped with video recording equipment which is designed to start automatically when the back door is opened. That video, if it exists, was not tendered into evidence. Constable Gahrha testified from memory and from his notes as to what happened in the police vehicle. [ 4 ] Constable Gahrha sat in the driver’s seat in front of Ms. Dillon. They were separated by a silent patrolman, but the sliding window was likely open.

Constable Gahrha usually spoke loudly and clearly when reading a suspect his or her rights and warnings. At 11:41 p.m., he read Ms. Dillon her right to counsel, which she said she understood. She said she did want to talk to a lawyer. He then read the police warning verbatim from the card provided, which reads: You need not say anything. You have nothing to hope from any promise of favour, and nothing to fear from any threat, whether or not you say anything. Anything you do say may be used as evidence. Do you understand? Ms.

Dillon replied, “Yeah.” [ 5 ] Constable Gahrha then drove to the police station, taking the most direct route, which he estimated would take five to seven minutes. He could not recall any specific conversation with Ms. Dillon during this time, although he usually tries to engage detainees in chit chat. He denied speaking to her about the offence for which she was arrested. Once at the station, he estimated the process of seizing her clothing and patting her down for safety would take “five minutes max.” He noted the time of the call to Legal Aid as 12:14 a.m., ending at 12:17 a.m.

He testified he then placed her in the interview room to take her warned statement. At this point in his career, he had taken between three and five statements from accused persons. [ 6 ] The time stamp on the video begins at 23:52 or 11:52 p.m. on January 25 and ends at 00:01, or 12:01 a.m. on January 26. Constable Gahrha testified that the time and date were correct.

After viewing the video, however, he testified the time stamp was incorrect because he checks his watch in the video and states, “It’s January 26 th , 15 past midnight.” That stated time is two minutes before Constable Gahrha noted the completion of her three-minute lawyer call. [ 7 ] Neither Constable Gahrha nor Courtney Dillon mention the lawyer call in the video. Constable Gahrha does not reiterate the police warning on the video either, as he felt that was unnecessary. In the video, Ms. Dillon is barefoot and holding her head. She sits quite far from Constable Gahrha and the microphone.

The viewer cannot see her face and her voice is difficult to hear at times. Constable Gahrha asks “How’s your head?” and she replies, “Fine.” The officer tells her his name and asks for hers. She replies, “Hitler.” The officer asks again, and she says “Courtney Dillon.” Constable Gahrha does not ask her if she wishes to make a statement. Instead, he tells her that the room is audio and video recorded then immediately says “Tell me what happened tonight.” She replies, “Nothing.” [ 8 ] He continues to question her. At first, she denies stabbing the victim.

When asked why she stabbed her, she answers “Cause she switched me and my brother’s spots.” During the interview, Ms. Dillon says some strange things. For example, she says someone used her body before she was born into it. She says, “I had a pretty fucked up life, the way I had so much damn blood lines of these.” She said she thinks the victim stole Ms. Dillon from her mother. She says the victim’s name is “Adolph.” At times, the tonal quality of her voice changes, almost like a different person is speaking.

Although Constable Gahrha does manage to focus her on the offence for a short time, much of her interview is rambling and incomprehensible. THE LAW

[9] The leading case on voluntariness is R v Oickle, 2000 SCC 38. The Crown must prove beyond a reasonable doubt that theaccused gave her statement voluntarily. The approach is a contextual one. Although the Supreme Court outlined several factors forconsideration, including threats or promises, oppression, and police trickery, “The ultimate question is whether the accused exercisedfree will by choosing to make a statement.” (R v Singh, 2007 SCC 48 at para 53).

The Court must be satisfied that the accusedpossessed an “operating mind,” that is, she understands what she is saying and that her words can be used against her at trial. (R vWhittle, (SCC), [1994] 2 SCR 914). As McLachlin J. states in R v Hebert, (SCC), [1990] 2 SCR 151at para 166: It starts from the proposition that choice involves not only

an act, but a mental element. On this view, the act of choosing whether toremain silent or speak to the police necessarily comprehends the mental act of selecting one alternative over another.

The absence ofviolence, threats and promises by the authorities does not necessarily mean that the resulting statement is voluntary, if the necessarymental element of deciding between alternatives is absent. [10] Where the evidence of voluntariness is circumstantial, in order to meet the standard of proof beyond a reasonable doubt, theevidence can permit no reasonable inference other than voluntariness. (See R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000 and R vLearning, 2019 SKCA 5 regarding use of circumstantial evidence and proof beyond a reasonable doubt). [11] When a detainee has expressed a desire to contact counsel, police have a duty to hold off questioning until he or she has beengiven a reasonable opportunity to do so. (R v Prosper, (SCC), [1994] 3 SCR 236 and R v Bartle, (SCC), [1994] 3 SCR 173). [12] In order to meet the burden of proof, it is crucial that a sufficient record be made of the interactions between the police and theaccused.

Where audio and video recordings are available but not used or not disclosed, an adverse inference may be drawn. (R vMoore-McFarlane (2001), (ON CA), 160 CCC (3d) 493 (Ont CA) at para 65). ANALYSIS [13] The issue to be decided is whether the Crown has proven beyond a reasonable doubt that Ms. Dillon’s confession wasvoluntary. In other words, being aware of her right to refuse, being aware that her words could be used to incriminate her, did she, afterconsulting counsel, make a conscious choice to speak to the police about the offence for which she was under arrest?

If I am left with areasonable doubt about this issue, the statement cannot be entered into evidence. [14] There is some direct evidence that Ms. Dillon understood her right to refuse to speak to the authorities. Constable Gahrhatestified that she said “Yeah” when asked if she understood her right to remain silent. That interaction occurred at a different time and adifferent location from the statement itself. I must be satisfied she understood her right to choose at the time she made the statement.

She was not asked directly whether she chose to make a statement, and so that mental element must be the only rational inference to bedrawn from the evidence in order for the Crown to meet its burden of proof. [15] The statement “Yeah” must be considered in the context of a person who has suffered an injury to her head, who is saying“random stuff” and who might either suffer from a mental illness or be under the influence of some unspecified drug. The interactionbetween Constable Gahrha and Ms. Dillon in his police vehicle either was not recorded or not tendered into evidence.

Constable Gahrhaformed the opinion that Ms. Dillon understood her right to remain silent, and that she was “playing games” by giving nonsensical repliesto his questions. The officer was inexperienced and had no training in detecting drug intoxication or mental illness. Had the recordingbeen made available, the Court would be able to make its own assessment of her behaviour. In its absence, I am left with the“impression” formed by an inexperienced officer. Part of the reason for his opinion is that she seemed quite sane until he told her shewas under arrest.

However, his pre-arrest interaction with her was so brief that it could not have given him any meaningful insight intoher normal behaviour patterns. Furthermore, an arrest is exactly the kind of event that can trigger unusual reactions in the mentally ill,the injured, or the intoxicated. While it is a permissible inference that she understood what was happening and chose to toy with theofficer, it is not the only rational inference in the circumstances. [16] I also have concerns about the quality of the evidence of implementing her right to counsel.

Although there has not been aCharter application alleging a breach of her right to counsel, I must be satisfied the police held off questioning until she had exercisedthat right. There are discrepancies in the times recorded in Constable Gahrha’s notes, in the time stamp, and in the video itself when theofficer checks his watch. If the time stamp is correct, Ms. Dillon consulted counsel after she gave her statement to police. If ConstableGahrha is correct when he says the time is “Fifteen after midnight” on the video, then Ms. Dillon could not have been consulting withcounsel between 12:14 a.m. and 12:17 a.m. Ms.

Dillon was read her rights at 11:41 p.m. It took five to seven minutes to drive her to the

police station, and another “five minutes max” to process her. By 11:51 p.m. to 11:53 p.m., that process would have been complete. If she was not given her lawyer call until 12:14 a.m., it is perfectly plausible that she gave her 10-minute statement before she consulted counsel. She is not asked on the video whether she was satisfied with her lawyer call. That is unfortunate, because it would have provided the Court with evidence that the lawyer call preceded the interrogation. While I am satisfied on the evidence that Ms.

Dillon spoke to Legal Aid duty counsel at some point, I am not satisfied that point was before she made her statement. This is relevant to voluntariness in that the police have a duty to hold off eliciting evidence from a detainee until they have been given a reasonable opportunity to exercise their right to counsel. It also raises a doubt about whether she understood her right to choose not to talk to the police. [ 17 ] Ms. Dillon was not asked whether she chose to speak to police. She was in custody, under the control of the police. She had to go where she was told and do what she was told.

She was told to sit in the interview room. She was not told she could choose to leave the interview room and go to a cell. She was not reminded that she need not say anything. By saying “Tell me what happened,” Constable Gahrha, in effect, ordered her to talk. Her first reply, “Nothing,” suggests that she did not want to speak to the police. In these circumstances, it is a rational inference that she thought she had no choice but to speak to the officer and to answer his questions. [ 18 ] I am not satisfied Ms. Dillon understood what she was saying or that what she said could be used against her at trial.

The interview contains bizarre statements that cast doubt on whether she knew where she was or why she was there. Her voice changes. It is possible she was suffering some sort of psychosis or the effects of drug intoxication. It is possible she suffered a head injury which impacted her cognitive ability. Constable Gahrha is able to focus her briefly on the events in question, but her responses are mostly vague and disjointed.

The nature of her statements, the fact she was holding her head, and her manner of speech all raise red flags and called for further inquiry on the part of police as to her capacity to understand the police warning and her right to refuse to speak to police. I am not convinced she had the mental ability in the circumstances to choose not to make a statement. CONCLUSION [ 19 ] I find the Crown has not proven beyond a reasonable doubt that Ms. Dillon’s statement was voluntary and so it is inadmissible in evidence against her.

Dated this 1st day of September 2020, at the City of Prince Albert, in the Province of Saskatchewan. _________________________ F.M. Daunt, J