R. v. Ashley, 2010 ONCJ 590

Citation: R. v. Ashley , 2010 ONCJ 590 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Ms. M. Pecknold, ) for the Crown ) — AND — ) ) CHEVER ASHLEY ) ) Ms. E. Thomas, ) for the accused ) lipson J.: RULING ON THE ADMISSIBILITY OF MR. ASHLEY’S STATEMENT TO DETECTIVE ECKLUND [ 1 ] This is a ruling concerning the admissibility of a lengthy video-taped statement made to a detective by the accused, Chever Ashley.

He has pleaded not guilty to charges of unauthorized possession of a firearm, possession of a restricted firearm with ammunition, careless storage of a firearm, possession of a firearm knowing its possession is unauthorized and possession of a weapon. The Crown alleges that on August 3, 2009 Mr. Ashley was in possession of a loaded 40. calibre semi-automatic handgun. At the time of the alleged offences, the accused was living with his 62 year old grandmother Olga Gayle at 7 Glamorgan Avenue, Apartment 912.

Overview of the evidence on the voir dire [ 2 ] The evidence on the voir dire is that shortly after 10 a.m. on August 3, 2009, Mr. Ashley was taking a shower in his residence. While Mr. Ashley was in the shower, his grandmother entered the bathroom and noticed her grandson’s jean pants on the floor. She also noticed a handgun that was tucked into one of the pants pockets. Ms. Gayle immediately called 911. She told the dispatcher what she had discovered and advised that she would leave the front door unlocked so the police could enter the apartment.

Minutes later armed Toronto Police Services officers arrived at the apartment. They found Mr. Ashley and his grandmother in the kitchen area. After a brief struggle, the accused was handcuffed. An officer located a handgun in a pair of shorts on the bathroom floor. Mr. Ashley was arrested for possession of a firearm. One officer, P.C. Riegert, testified that after Mr. Ashley was handcuffed, the accused’s demeanour appeared to be “calm, indifferent and stoic”. [ 3 ] Upon arrest Sgt. Relph advised Mr. Ashley of his right to counsel and also cautioned him. Relph transported the accused to 41 Division.

Following the booking process, Sgt Relph placed a call on behalf of the accused to duty counsel. He placed Mr. Ashley in interview room “C” of the C.I.B. office at 11:23 a.m. so that the accused could consult with counsel in private. Duty counsel called back at 12:25 p.m. and spoke with the accused. At 1:24 p.m. another officer escorted Mr. Ashley to a room equipped with video equipment and left the accused with Detective Ecklund for questioning. [ 4 ] Detective Ecklund conducted a video-taped interview with Mr. Ashley that lasted approximately one and half hours.

At the outset of the interview, Detective Ecklund introduced himself to Mr. Ashley and advised him of his charges. He also advised Mr. Ashley of his right to counsel and offered him the opportunity to call another lawyer. The accused declined and confirmed with the detective that he was satisfied with the advice he had received from duty counsel. Detective Ecklund re-cautioned Mr. Ashley and also gave the accused the secondary caution. I am satisfied that the accused understood that he was not required to make any statement to Detective Ecklund. The lengthy interview that followed covered many areas including Mr.

Ashley’s background, family ties, relationship with his grandmother and girlfriend, recent day to day activities and his future plans. Approximately an hour into the interview, the subject of the handgun was raised, not by Detective Ecklund but by the accused. At page 35 of the transcript, the officer asked Mr. Ashley whether he had gone downtown on the weekend to celebrate Caribana. The following exchange took place: Ashley: No Ecklund: Oh really? Not into that? Ashley: ‘Cause the same reason why I have the gun is the same reason why I don’t go to Caribana. Ecklund: Same reason you have the gun?

Ashley: Same reason I don’t go to Caribana. Ecklund: Tell me more about that. [ 5 ] Mr. Ashley then told the detective in considerable detail about why he required a gun and how he came into possession of the firearm that had been seized by the police in his residence. Mr. Ashley also informed Detective Ecklund that when he had got out of the shower that morning, he realized that his grandmother had discovered the gun and had phoned the police. The accused also commented that when the police were in the apartment, Ms. Gayle told him that she thought he had the gun to kill her.

[ 6 ] The issue in this voir dire relates to events alleged to have occurred while Mr. Ashley was in interview room “C”, before he was taken to the video-equipped interview room. [ 7 ] Mr. Ashley testified that Detective Ecklund entered room “C” and asked him if he knew what he had been charged with. Ecklund also told him that there were only two people in the apartment-the accused and his grandmother. Ecklund then told him “So whose gun is it? If it’s not yours, it’s your grandmother’s.” During cross-examination, Mr.

Ashley added that Detective Ecklund also told him that the police might have to go back and charge his grandmother. Mr. Ashley was not sure if those were the exact words used by Detective Ecklund but the message was clear that if he didn’t confess to possessing the gun, the police would arrest his grandmother. The accused testified that he gave a statement because he didn’t want his grandmother to be arrested. [ 8 ] Detective Ecklund was in the CIB office when Sgt Relph put Mr. Ashley in interview room “C”. He denied having any contact or conversation with the accused when Mr. Ashley was in interview room “C”.

The detective also denied that he threatened to arrest Mr. Ashley’s grandmother. [ 9 ] Detective Ecklund testified that while the accused was in room “C”, he was busy investigating the case at his desk including phoning other police sources for information about Mr. Ashley. Detective Ecklund was not even sure which room the accused had been placed and testified that he wished to interview the accused only in the videotape-equipped room. He explained that the videotape-equipped room was more comfortable and quieter than interview room “C”. There were swivel chairs and windows.

Detective Ecklund believed that the accused would be more relaxed and forthcoming in that room. Detective Ecklund also wanted any discussion with Mr. Ashley to be videotaped. Positions of the parties [ 10 ] The defence submitted that the Crown has not proven beyond a reasonable doubt that Mr. Ashley’s videotaped statement was voluntary. Ms. Thomas argued that Detective Ecklund exploited the close relationship between Mr. Ashley and his grandmother in order to obtain a confession. It was submitted that Mr.

Ashley’s evidence should be believed or at least leave the court in reasonable doubt that the detective threatened to arrest Ms. Gayle unless the accused confessed. Detective Ecklund was present in the main criminal investigative office while the accused was in interview room “C” but the officer had nothing in his notes or little recall as to what he was doing during that time.

It was submitted that the officer’s lack of record and recall is further aggravated by the fact that there was no video surveillance of the accused while he was in interview room “C”. [ 11 ] The Crown submitted that the accused’s statement was voluntary. Ms. Pecknold argued that Detective Ecklund was entirely credible that he did not speak nor did he wish to speak to the accused when Mr. Ashley was in interview room “C”. In his videotaped statement, Mr. Ashley appears relaxed and speaks freely about a variety of topics.

The Crown submitted that there is no evidence that the accused was in any way concerned that his grandmother was going to be charged if he didn’t confess. In fact, the topic of possession of the gun was not even raised until almost an hour into the statement-taking and it was Mr. Ashley who first raised the subject. Principles to be applied [ 12 ] In R. v. Oikle , 2000 SCC 38 (CanLII) , [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38 (S.C.C.) and R. v. Spencer , 2007 SCC 11 (CanLII) , [2007] S.C.J. No. 11 (S.C.C.), the Supreme Court of Canada reviewed the relevant principles to be applied in the voluntariness inquiry.

Those principles can be summarized as follows: 1. At common law the Crown must prove beyond a reasonable doubt that a statement made by an accused to a person in authority is voluntary. 2. The voluntariness inquiry focuses predominantly, though not exclusively, on the ability of the accused to make a meaningful choice whether or not to confess. 3.

In assessing whether or not the accused’s statement is voluntary, the court must consider all the surrounding circumstances, including the accused’s mental state and whether the conduct of the authorities deprived the suspect of making a meaningful choice by reason of threats, inducements, oppression, coercion, trickery, misinformation or other abuse. 4. A promise renders a statement involuntary only if the quid pro quo provides a strong enough inducement to raise a reasonable doubt whether the will of the suspect is overborne.

While a quid pro quo is an important factor in establishing the existence of a threat or promise, it is not by itself determinative. It is the strength of the inducement having regard to the particular individual and his or her circumstances that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement. 5. The examination of all the circumstances must be contextual. This contextual approach recognizes the need to protect the rights of the accused without limiting society’s need to investigate and solve crime.

Fixed or narrow rules do not apply and the voluntariness test cannot be mechanically applied to the facts in any particular case. [ 13 ] Here, the accused contends that Detective Ecklund threatened to charge Mr. Ashley’s grandmother with possession of the handgun unless the accused confessed. Obviously, this issue first requires a factual determination as to whether such a threat occurred. If the court were to find that such a threat was made, the next issue to be determined is whether the quid pro quo consequences rendered the statement inadmissible.

In other words, was the alleged inducement so strong that it rendered the accused’s statement inadmissible? As the Court in Oikle observed at para. 57 : In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. 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. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt whether the will of the subject has been overborne. Analysis

[ 14 ] It is clear that during the videotaped interview of the accused, Detective Ecklund did not engage in any aggressive, persistent or intimidating questioning of Mr. Ashley. In fact, throughout this lengthy interview, Detective Ecklund’s questions were open- ended. The officer maintained a good-natured and even amiable approach vis a vis Mr. Ashley. This was a skilfully conducted interview that successfully elicited a wealth of information from the accused without any resort to promises, threats or inducements. The officer created and maintained a relaxed atmosphere during the interview. Mr.

Ashley appears at ease, comfortable and forthcoming throughout. There is not the slightest suggestion of any quid pro quo offered to Mr. Ashley in exchange for a confession. While I am satisfied that there might have been some potential for the police to exploit the close bond between the accused and his grandmother in order to obtain a confession, there is nothing in the videotaped interview suggesting that the detective had employed such a tactic at an earlier time. [ 15 ] I do not accept Mr.

Ashley’s testimony that prior to the videotaped interview, Detective Ecklund threatened to arrest the accused’s grandmother for possession of the handgun if he did not confess. Nor does his testimony leave the court in reasonable doubt that such a threat was made. I make this finding for the following reasons. [ 16 ] First, Mr. Ashley’s testimony was internally inconsistent regarding the crucial issue of the alleged threat. In chief, Mr. Ashley did not say that Detective Ecklund threatened to charge his grandmother.

He testified that the officer told him only that that there were two persons in the apartment when police seized the gun-Mr. Ashley and his grandmother. The accused testified that he then told the officer it was his gun. He said he told the officer it was his gun in order to spare his grandmother from being arrested. Then, in cross- examination the accused embellished the alleged conversation with Detective Ecklund. Mr. Ashley testified that Ecklund asked him whose gun it was and said “if it’s not yours, it’s your grandma’s so I might have to go back and charge her”.

In my view, this major inconsistency between what Mr. Ashley said in chief and cross examination significantly undermines the accused’s credibility. [ 17 ] I also note that during the entire video-taped interview, Mr. Ashley never expressed any concern that his grandmother might be arrested for, charged with or even suspected of possessing the firearm. Mr. Ashley was very forthcoming with Detective Ecklund.

I have no doubt that had the accused harboured any concern about his grandmother’s legal situation, he would have raised the subject during the lengthy videotaped interview. [ 18 ] I have also taken into account the surrounding circumstances and context of the investigation and statement-taking process. There is no suggestion in the evidence that Ms. Gayle was ever a potential suspect either in the eyes of the police or in the mind of the accused. At the time of the interview, the police were not engaged in a “who dunnit?” type of investigation. The police did not consider Ms.

Gayle to be a potential suspect and Mr. Ashley knew that. After all, it was Ms. Gayle who called the police when she discovered the gun. In testimony. Mr. Ashley said that at the time of his arrest he realized that his grandmother had called the police. She had even left the front door unlocked for the police. The gun was found in clothing allegedly belonging to Mr. Ashley. In all of the circumstances, it would have been implausible, if not ridiculous, for Detective Ecklund to threaten to arrest Ms. Gayle in order to obtain a confession from Mr. Ashley.

Such a tactic would have been unnecessary, unreasonable and unrealistic with no chance of influencing the accused about whether or not to make a statement. [ 19 ] I found Detective Ecklund to be a highly credible witness. His testimony was reasonable and withstood cross-examination. I accept his testimony that he had no interest in speaking with the accused except in the videotape equipped interview room. The police placed Mr. Ashley in interview room “C” in order for him to speak privately with duty counsel.

I am satisfied that is all that happened in that room while Detective Ecklund was at his desk preparing the case. I am satisfied that there was no “off- the- record” questioning between Detective Ecklund and Mr. Ashley. [ 20 ] In

summary, I am satisfied beyond a reasonable doubt that there was no inducement or threat made by Detective Ecklund in order to obtain a statement from Mr. Ashley. [ 21 ] The Crown has met its burden of establishing beyond a reasonable doubt that the videotaped statement made by Mr. Ashley was voluntary. It will be admitted into evidence. Released: December 6, 2010 Signed: “Justice T. Lipson”