r v. DEORAJ, 2018 QCCQ 7572

R. c. Doeraj 2018 QCCQ 7572 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-147312-166 DATE: September 27 th , 2018 ______________________________________________________________________ BY THE HONOURABLE MÉLANIE HÉBERT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. DEORAJ Hermina Accused ______________________________________________________________________ JUDGMENT ON VOIR-DIRE ______________________________________________________________________ INTRODUCTION [ 1 ] Ms.

Deoraj stands trial for having committed an aggravated assault on her partner, Philip Francis. [ 2 ] Mr. Francis was stabbed shortly after 14:00. Ms. Deoraj was arrested at 14:31 for his attempted murder. She was given her rights twice and transported to the police station. After the booking procedure, she spoke to a lawyer and was brought to a holding cell where she stayed for approximately five and a half hours. While she was in her cell, she went to the bathroom twice, she received food and she was given a blanket and Tylenols.

She was brought to a video interrogation room for questioning by officer Doucet at approximately 21:00. Less than an hour later, she admitted stabbing Mr. Francis. [ 3 ] The prosecution is seeking to introduce Ms. Deoraj’s confession into evidence, arguing that it has shown beyond a reasonable doubt that the confession was made voluntarily. [ 4 ] This is contested by the defence who argues that the cumulative effects of the inducements made by officer Doucet to Ms. Deoraj during her questioning, the oppressive conditions in which Ms.

Deoraj was arrested, detained and later questioned, the use of improper police trickery as well as Ms. Deoraj’s personal characteristics raise a reasonable doubt as to the voluntariness of the confession. [ 5 ] Ms. Deoraj’s personal characteristics to which the defence is referring include the fact that she had been the victim of conjugal violence. According to the defence, this made her particularly vulnerable and this vulnerability was exploited by the police officers who interacted with her. [ 6 ] After having analysed all of the circumstances surrounding Ms.

Deoraj’s confession, the Court is convinced, beyond a reasonable doubt, that Ms. Deoraj voluntarily made the confession. As a result, the Court declares Ms. Deoraj’s confession as admissible evidence. CONTEXT [ 7 ] As there are numerous relevant facts to the question at issue in this matter, what follows is not only a review of the evidence tendered during the voir-dire but it also includes the Court’s conclusions regarding that evidence. A. The relationship between Ms. Deoraj and Mr. Francis [ 8 ] In the course of the voir-dire , the defence sought to file three police reports to prove that Mr.

Francis was arrested, on three occasions between February 2013 and October 2016, for assaulting and/or threatening Ms. Deoraj. The prosecution agreed to the filing of these reports in lieu of the testimony of the arresting officers. [ 9 ] It was agreed by the parties that the statements made by Ms. Deoraj and which were reflected in these reports were not admissible into evidence to prove the truth of their content but only served to explain why the police arrested Mr. Francis. Keeping that in mind, what follows is a

summary of these three police reports.

[ 10 ] On February 2, 2013, the police were called to Ms. Deoraj’s apartment. Upon arrival, the officers met with Ms. Deoraj and Mr. Francis. Both were intoxicated by alcohol. Ms. Deoraj reported that Mr. Francis had been violent with her in that he had pulled her hair. Mr. Francis was arrested for assault. [ 11 ] On March 10, 2015, Ms. Deoraj called the police stating that she was being assaulted by her partner, he was pulling her hair. When the police arrived at Ms. Deoraj’s apartment, Mr. Francis was getting ready to leave. For her part, Ms. Deoraj was crying and she told the officers what happened. Mr.

Francis, who was intoxicated, was arrested for assault. [ 12 ] On October 6, 2016, the police were called to Ms. Deoraj’s apartment. She reported that Mr. Francis, had been violent with her as he had pulled her hair on three occasions and that he had also threatened to kill her before leaving the apartment. Ms. Deoraj was hysterical and did not stop yelling. The officers who intervened could smell an odor of alcohol emanating from her. They arrested Mr. Francis for assaulting and threatening Ms. Deoraj.

He was drunk and the officers smelled a strong odor of alcohol emanating from him. [ 13 ] This evidence proves that Mr. Francis was arrested on three occasions for having assaulted or threatened Ms. Deoraj. It does not prove that Mr. Francis actually assaulted or threatened Ms. Deoraj on these three occasions. [ 14 ] As for the day of the stabbing, on December 3, 2016, the evidence shows that Mr. Francis was bound by conditions aiming to protect Ms. Deoraj that included not being at her apartment and/or not being in her physical presence [1] . [ 15 ] That being said, Mr.

Cantin, a neighbor who lived at 3900 Barclay, testified knowing Ms. Deoraj and Mr. Francis as he occasionally hung out with them. According to him, Mr. Francis was Ms. Deoraj’s partner. Mr. Cantin often saw them together, in the building or in the neighbourhood. As explained below, Mr. Cantin saw Ms. Deoraj and Mr. Francis together on Ms. Deoraj’s balcony on the day of the stabbing. [ 16 ] Mr. Cantin testified that Mr. Francis was always drunk. Drinking did not however make him violent. It made him more talkative. As for Ms. Deoraj, Mr. Cantin described her as someone who complained all the time, mostly about Mr.

Francis or her mother. While he testified that he has seen Mr. Francis and Ms. Deoraj arguing, he stated never having seen Mr. Francis being physically violent with Ms. Deoraj nor Ms. Deoraj being physically violent with Mr. Francis. He also testified never having seen Ms. Deoraj with bruises. [ 17 ] That evidence shows that Ms. Deoraj and Mr. Francis had a difficult relationship that involved alcohol, dissatisfaction and arguments. B. The day of the stabbing [ 18 ] On December 3, 2016, at approximately 12:30, Mr. Lebel parked his car close to the apartment building located at 3900 Barclay.

He was picking up his friend Mr. Cantin, who lives in this building. [ 19 ] As he got out of his car, he noticed a couple walking on the sidewalk. He had never seen that couple before. The woman, whom he identified as Ms. Deoraj [2] , was screaming at the man. He was under the impression that she was accusing the man of having slept around and that she was trying to get rid of him. She was verbally aggressive. She seemed upset, angry. As for the man, he was following Ms. Deoraj passively and he seemed drunk. [ 20 ] According to Mr. Cantin, Mr. Lebel came to his apartment at approximately 12:00.

While they were walking together towards Mr. Lebel’s car, Mr. Cantin saw Ms. Deoraj on the balcony of her apartment located at 3890 Barclay. She was yelling at Mr. Francis. He could not understand what they were arguing about. [ 21 ] Mr. Lebel and Mr. Cantin went shopping. When they came back, a police car and an ambulance were parked in front of the apartment building located at 3890 Barclay. Mr. Francis was being carried out on a stretcher while Ms. Deoraj was in handcuffs [3] . [ 22 ] The testimonies of Mr. Lebel and Mr.

Cantin regarding the argument that each of them witnessed on December 3, 2016 is not contradicted. When compared to one another, they differ slightly on only one issue: the time at which Mr. Lebel arrived at Mr. Cantin’s apartment. [ 23 ] When the timing issue is set aside, their testimonies are consistent. Mr. Lebel saw Ms. Deoraj yelling at Mr. Francis on the sidewalk while he was on his way to pick up Mr. Cantin. When Mr. Cantin came out of his apartment with Mr. Lebel, he saw Ms. Deoraj yelling at Mr. Francis on the balcony of her apartment. [ 24 ] The Court finds the testimonies of Mr. Lebel and Mr.

Cantin in relation to the argument that they each witnessed as being reliable and credible. It proves that Ms. Deoraj was with Mr. Francis on that day and that she was upset, angry and yelling at him. It also proves that Mr. Francis, was drunk but there is no evidence that he was violent. C. The arrest [ 25 ] On the same day, at approximately 14:24, officers Pelissier and Gélinas were dispatched to assist two other police officers in relation to a stabbing that occurred at 3890 Barclay, apartment 3.

They were in a police car, dressed in their police uniform. [ 26 ] They arrived at the apartment building approximately three minutes later and saw a police car and an ambulance parked in front of the building. According to the information known to them at that time, the victim was a man and the suspect was a woman and she had fled the scene. [ 27 ] They remained close to the building entrance to ensure that no one came in and to secure the crime scene.

Officer Gélinas entered the building and from where he was standing, he could see officers Potvin and Martel and two ambulance technicians tending to the male victim on the first floor staircase landing.

[ 28 ] A woman, who was later identified as Ms. Deoraj, came in the building’s entrance. She seemed agitated. Officer Gélinas told her that she could not enter because of the ongoing police intervention. She continued walking as if she had not heard officer Gélinas. When officer Gélinas told her that she could not go any further, she replied that she lives in apartment 3. [ 29 ] At that point, the male victim, who was still on the first floor staircase landing, yelled that she was his attacker. Officer Gélinas immediately handcuffed Ms. Deoraj.

He did not wait for his partner to assist him because of safety concerns, as she could still be carrying the weapon used for the stabbing. [ 30 ] During the voir-dire , officers Pelisier and Gélinas were cross-examined on the proper procedure to follow to handcuff a suspect. Officer Pelisier testified that it was proper procedure for a police officer to wait for his partner to handcuff a suspect in order to avoid having to use force and thus limit the risk of injuring the suspect in the process. Officer Gélinas testified that police officers are taught how to handcuff a suspect alone.

The manner in which a suspect will be handcuffed depends on the circumstances of the intervention and as a result, can vary. In the matter at hand, he decided not to wait for his partner before handcuffing Ms. Deoraj for safety reasons. His testimony in this regard is not contradicted. The Court finds that the concern for safety expressed by officer Gélinas was reasonable in light of the facts known to him at that time and thus, warranted his decision to immediately handcuff Ms. Deoraj. [ 31 ] Ms. Deoraj, who was still agitated while being handcuffed, did not offer resistance.

As a result, officer Gélinas did not have to use force to restrain her. Ms. Deoraj never complained that the handcuff or the handcuffing process hurt her or caused her pain. Officer Gélinas’s testimony in this regard is also not contradicted. There is thus no evidence that the manner in which Ms. Deoraj was handcuffed caused her pain, harm, or injury. D. The right to information [ 32 ] After having handcuffed Ms.

Deoraj, in a calm voice, officer Gélinas informed her that she was under arrest for attempted murder, that she had the right to remain silent, that she had the right to speak with a lawyer and that she would be able to do so at the police station. She looked and listened to officer Gélinas as he was talking and seemed to understand her rights. It was 14:31. [ 33 ] Officer Gélinas stepped outside with Ms. Deoraj to allow for the victim’s evacuation. They walked to the police car where he reiterated that she had been arrested for attempted murder.

He also reiterated her rights to remain silent and to speak with a lawyer once they reached the police station. He asked her if she understood and she said that she understood. It was 14:33. [ 34 ] Officer Gélinas’ testimony regarding the information that he provided to Ms. Deoraj and her reaction is not contradicted. [ 35 ] The defence argued that arresting Ms. Deoraj for attempted murder was abusive and meant to impress or intimidate her. In light of the circumstances known to officer Gélinas, the Court finds that his decision to inform Ms. Deoraj that she was being arrested for attempted murder was reasonable.

It allowed Ms. Deoraj to properly understand the jeopardy that she was facing and decide if she wanted to exercise her right to counsel and her right to remain silent or if she preferred to cooperate with the police. In short, officer Gélinas’ decision in this regard was neither problematic nor abusive and it does not reflect an attempt to impress or intimidate Ms. Deoraj. [ 36 ] The defence also argued that not allowing Ms. Deoraj to immediately call a lawyer was abusive and meant to make her feel powerless. The Court finds no merit to this argument. When cross-examined on why he did not allow Ms.

Deoraj to call a lawyer before they left Barclay street, officer Gélinas answered that he could not provide her with the privacy needed to call a lawyer on site and that he thought that she would be able to speak with a lawyer quicker if they just left for the police station. In short, officer Gélinas assessed the situation and decided that leaving immediately for the police station was the best course of action to provide Ms. Deoraj with a reasonable opportunity to speak to counsel. There is no evidence to support the argument that officer Gélinas’ decision was abusive and meant to make Ms.

Deoraj feel powerless. There is also no evidence that Ms. Deoraj felt powerless as a result of not being able to call her lawyer before leaving for the police station. E. The search [ 37 ] After informing Ms. Deoraj of the reason for her arrest and of her rights, officer Gélinas asked officer Martel, a woman, to search Ms. Deoraj. Ms. Deoraj was searched beside the police car and then placed in the backseat of the car. While Ms. Deoraj was still agitated, she was calmer than before. The evidence reveals nothing problematic with the execution of this search. F.

The drive to the police station [ 38 ] Officer Pelissier drove the car while officer Gélinas sat in the front passenger seat. They left Barclay street at 14:43 for the police station. [ 39 ] While in the car, officers Pelissier and Gélinas did not speak to Ms. Deoraj. They did not try to get her to confess to stabbing Mr. Francis and di not engage in a conversation with her in order to make her talk. As for Ms. Deoraj, she did not speak to officers Gélinas and Pelissier and did not seek their assistance nor make any request during the trip. [ 40 ] Half-way to the police station, officer Gélinas noticed that Ms.

Deoraj was crying. She did not seem in pain, did not complain nor make any request and thus, officer Gélinas did not intervene. He attributed her tears to the emotions associated with the fact that she was the suspect in her partner’s stabbing. According to his assessment of the situation, Ms. Deoraj did not need assistance at that point. There is no evidence that contradicts his testimony in this regard and his assessment of the situation is reasonable, in light of the evidence tendered. G. The booking procedure [ 41 ] Officers Pelissier and Gélinas arrived at the police station at 15:02 and brought Ms.

Deoraj to the booking station. By that time, she had stopped crying. They followed the standard booking procedure and asked a female officer to search Ms. Deoraj. During the

booking process, Ms. Deoraj was asked for the name of the lawyer with whom she wanted to speak and she asked for Me Sandiford. The evidence reveals nothing problematic with the booking procedure. H. The right to speak with a lawyer [ 42 ] At 15:25, officer Gélinas called Me Sandiford and, as there was no answer, he left a message. He advised Ms. Deoraj that Me Sandiford was not available and that he had left her a message. He suggested to Ms. Deoraj that she speaks with a legal aid lawyer and she agreed. Officer Gélinas’ testimony on the manner in which these events unfolded is not contradicted.

There is no evidence that officer Gélinas pressured Ms. Deoraj into agreeing to speak with a legal aid lawyer or forced her to do so. Thus, the Court concludes that it was Ms. Deoraj’s choice to speak with the legal aid lawyer, in light of the fact that Me Sandiford was not available. [ 43 ] Officer Gélinas called the legal aid lawyer at 15:27. Ms. Deoraj spoke with the lawyer for approximately seven minutes, between 15:30 and 15:37. There is no evidence that after having spoken to the legal aid lawyer, Ms.

Deoraj complained, expressed dissatisfaction or asked to speak to another lawyer or to Me Sandiford [4] . [ 44 ] After Ms. Deoraj spoke to the legal aid lawyer, she was brought to her cell. Officers Gélinas and Pelissier reported to officer Ouimet, one of the investigators in this matter. They did not have any further contact with Ms. Deoraj. I. The end of officers Gélinas’ and Pelisier’s involvement [ 45 ] There is no evidence that anything else occurred while Ms. Deoraj was in officers Gélinas’ and Pelissier’s custody, that is from the time of her arrest to the time she was taken to her cell.

Officers Gélinas and Pelissier both testified that they did not make any promises or threats to Ms. Deoraj and did not witness anyone making promises or threats to her while she was in their custody. [ 46 ] Throughout that time, Ms. Deoraj did not complain about anything nor make any request. While both officers testified that Ms. Deoraj is petite and that her demeanour is not imposing, they both said that she was not submissive and that she did not appear powerless during their intervention. As for her state of mind, officer Gélinas testified that Ms.

Deoraj was agitated but became calmer as the situation evolved. [ 47 ] Both officer Gélinas and Pelissier testified that this was the first time that they interacted with Ms. Deoraj. They did not know her. There is no evidence that they spoke to her about her relationship with Mr. Francis. J. The detention [ 48 ] At 15:41 and 16:12, while doing rounds in the holding cells, officer Malebra noted that everything was in order with Ms. Deoraj. At 16:41, Ms. Deoraj asked to use the bathroom. She was escorted to the bathroom by officer Morissette. She said that she was cold and she received a blanket.

At 16:49, officer Malebra again noted that everything was in order with Ms. Deoraj. [ 49 ] Officer Di Mateo took charge of the investigation in this matter. He wrote two warrants: a warrant to search the apartment for the weapon and a general warrant to allow for the analysis of the crime scene. Once those warrants were issued, shortly after 17:00, he went to the holding cells to advise Ms. Deoraj of what was going on as she had been in her cell for some time. According to him, keeping the detainees informed helps keep them calm. [ 50 ] He did not enter the cell in which Ms. Deoraj was detained.

He spoke to her from the corridor for about one or two minutes, telling her that search warrants would be executed at her apartment and that she would meet investigators later. Ms. Deoraj was calm, polite and seemed to understand what was going on. She replied “I did not do it, not me”. Officer Di Mateo did not elaborate on that reply, as his goal was not to question Ms. Deoraj. He had no further contacts with Ms. Deoraj. There is no evidence that anything else occurred during this conversation. [ 51 ] At 17:26, while doing rounds, officer Pedreira noted that everything was in order with Ms. Deoraj.

At 17:40, food was served to Ms. Deoraj. At 18:09, 18:38 and 19:12, officer Pedreira noted that everything was in order with Ms. Deoraj. [ 52 ] At 19:17, Ms. Deoraj was given two Tylenols and brought to the bathroom. At 19:41, 20:04 and 20:39 officer Pedreira noted that everything was in order with Ms. Deoraj. At approximately 21:06, Ms. Deoraj was brought to the questioning room. [ 53 ] The evidence shows that during the five and a half hours Ms. Deoraj spent in a holding cell, she was provided with food, allowed to use the bathroom and she received a blanket and Tylenols.

Officers Malebra and Pedreira visited her cell almost every half hour while doing rounds. There is no evidence that Ms. Deoraj made any request which were ignored or that she needed assistance and that it was refused to her. There is also no evidence that Ms. Deoraj complained about the conditions in which she was being detained. Rather, the evidence shows that the requests that she made were answered and that nothing problematic occurred during her detention. [ 54 ] Finally, t here is no evidence that any of the officers with whom she interacted while she was detained made promises or threats to her. K.

The questioning [ 55 ] Officer Doucet was responsible for the Ms. Deoraj’s questioning. He knew that Ms. Deoraj’s partner had been stabbed and that she had been arrested for attempted murder earlier that afternoon. [ 56 ] Before beginning the questioning, he read the police reports that were available at that time and thus knew that witnesses had seen the couple arguing on the day of the stabbing. He also searched the police database. While he does not remember the exact results

that this search yield, he knew, before beginning Ms. Deoraj’s questioning, that she had been the victim of conjugal violence. [ 57 ] Ms. Deoraj’s questioning was recorded on video. The video began at 21:04 and e verything that happened after that time was recorded. [ 58 ] At 21:06, Ms. Deoraj walked in the questioning room. The video shows that the room was small and contained only a table and two chairs. Officer Doucet, who is more than 6 feet tall and weighed, at the time, approximately 280 pounds sat in one of the chairs while Ms. Deoraj, who has a petite stature, sat in the other.

They were close to one another. That being said, the video shows that the atmosphere in the room was courteous. Officer Doucet remained calm, polite and respectful throughout the questioning, which lasted for less than an hour. When he asked questions, officer Doucet spoke calmly and did not raise his voice. His behaviour was neither hostile, aggressive, intimidating nor threatening. [ 59 ] As for Ms. Deoraj, she was dressed in her clothes. While she looked tired, was emotional at times and cried once, she remained alert throughout the questioning and relatively calm.

She listened to the questions asked by officer Doucet and her answers were coherent. Her voice was weak most of the time but when she wanted to make a point, she spoke louder and in a more affirmative manner. [ 60 ] Officer Doucet began the questioning by introducing himself as a detective who has been a police officer for ten years. He explained how the video room works and mentioned that his partner, officer Roy, was monitoring the questioning from a control room nearby. He told Ms. Deoraj that if she needed anything, like water for example, officer Roy could bring it to her. At that point, Ms.

Deoraj asked for water and it was brought to her approximately two minutes later. She did not ask for anything else like food, for example. [ 61 ] Officer Doucet told Ms. Deoraj that she had been arrested for the attempted murder of Mr. Francis. The discussion that ensued shows that Ms. Deoraj understood the reason for her arrest and the jeopardy that she was facing. Officer Doucet reiterated her rights, including her right to remain silent and explained to her that no one could force her to talk, either by making promises to her or by threatening her. Ms.

Deoraj said that she understood. [ 62 ] At the request of officer Doucet, Ms. Deoraj explained how she was arrested, transported to the operational center and booked, confirming that the police officers did not talk to her before she spoke to a lawyer and that no one made her any promises or threats throughout the process. She did not complain about the manner in which she was arrested, transported, booked nor detained. [ 63 ] At 21:16, officer Doucet asked Ms. Deoraj if she was cold and she said that she was, adding that she was running a fever. Officer Doucet asked for a blanket which Ms.

Deoraj received approximately three minutes later. This shows that officer Doucet was paying attention to Ms. Deoraj’s condition. He testified that he would not have continued to question her if, in his opinion, her health did not allow it. The video shows that Ms. Deoraj was in a proper physical state to be questioned by police. [ 64 ] Officer Doucet then addressed different topics with Ms.

Deoraj including the fact that she owns Disney’s princesses, her children, her grand-children, her living expenses, what she does with her time, her drinking habits and the fact that she smokes. [ 65 ] At 21:25, officer Doucet questioned Ms. Deoraj about her relationship with Mr. Francis. She answered his questions explaining the couple’s problems, including the fact that she had, in the past, called the police as a result of Mr. Francis’ behaviour. At 21:28, Ms. Deoraj expressed the wish to go home.

Officer Doucet continued questioning her and she continued answering his questions. [ 66 ] At 21:30, officer Doucet questioned Ms. Deoraj about the last time Mr. Francis came to her apartment. She answered that she was not home when he was stabbed, explaining that she was at the Western Union counter. She asked officer Doucet to check in her purse for a receipt from Western Union which would prove that she was not home at the time of the stabbing. Until that point, she had been talking with a weak voice while laying her head against the wall and holding the blanket that was provided to her.

Her attitude changed when she began explaining that she wasn’t home when Mr. Francis was stabbed. She spoke louder, in a more affirmative manner, and held her head straight. The blanket fell off from her shoulders and she did not pick it up. [ 67 ] Officer Doucet asked Ms. Deoraj what she had done during the day. She recounted her day, including the fact that she went to see her daughter. When talking about her daughter, she asked if she could call her. Officer Doucet replied that a police officer could call her daughter but that this would have to be done later. Ms.

Deoraj continued answering officer Doucet’s questions speaking in an affirmative manner when explaining that she was not home at the time of the stabbing. When officer Doucet misunderstood her, she did not hesitate to correct him. [ 68 ] During this exchange, officer Doucet never said nor implied that a call to Ms. Deoraj’s daughter would be made only if she confessed or that the call somewhat depended on what she would say or do during the questioning.

He simply said that the call could not be placed now but that it could be placed later. [ 69 ] After this exchange, officer Doucet changed the subject of the conversation. He explained how police investigations are conducted, referring to the use of crime scene experts and of DNA or fingerprint analysis. While providing this explanation, he never said that the police had secured DNA or fingerprint evidence in this matter. He also told Ms. Deoraj that there are often witnesses that can be met by police and who can provide a statement or even evidence in relation to a crime. He asked Ms.

Deoraj if it could be possible that a witness saw her getting out of her apartment building after Mr. Francis was stabbed and she answered that it was not possible. [ 70 ] At 21:46, officer Doucet told Ms. Deoraj that he had to meet with the investigator responsible for this matter. Ms. Deoraj asked for more water. Officer Doucet got her a glass of water and left the room. While she was alone, Ms. Deoraj laid her head on the table and cried. [ 71 ] At 21:49, officer Doucet came back and told Ms. Deoraj that the investigation clearly showed that she had stabbed Mr. Francis.

He told her that she was not a bad person, adding that what unfolded was the result of Mr. Francis’ inappropriate behaviour towards her, referring to the police files that he had read and the fact that Mr. Francis had conditions [5] .

[ 72 ] Ms. Deoraj denied stabbing Mr. Francis. Officer Doucet reiterated that the investigation showed that she had stabbed Mr. Francis. He also reiterated that she was not a bad person and referred to the fact that Mr. Francis had cheated on her. He added that the police had met with witnesses who had seen her having an argument with Mr. Francis on that day around noon. She denied that fact. Officer Doucet again said that she was not a bad person, referring to the fact that she called 9-1-1 and reported that Mr. Francis had been hurt. [ 73 ] Officer Doucet told Ms.

Deoraj that her daughter and her grand-daughter deserved to know why she had stabbed Mr. Francis. In what seems to be a bad choice of words, he said that she needed to release herself from all those years, meaning that she would feel better if she told the truth. At that point, Ms. Deoraj began explaining the circumstances surrounding the stabbing. She confessed to stabbing Mr. Francis in her apartment earlier that day. [ 74 ] At 21:58, officer Doucet asked Ms. Deoraj how she felt and she replied that she felt sorry about stabbing Mr. Francis.

He asked her if she wished for a police officer to call her daughter and she said yes. They both got up and left the room. Ms. Deoraj was taken back to her cell shortly after 22:00. Neither officer Doucet nor his partner officer Roy had any further contacts with Ms. Deoraj. ANALYSIS [ 75 ] The confession rule is concerned with voluntariness, broadly defined [6] . It aims at ensuring that a statement made by an accused to a police officer is admitted into evidence only where the accused has made the meaningful choice to speak [7] .

The onus to establish the voluntariness of a statement lies with the prosecution and it must be proven beyond a reasonable doubt [8] . [ 76 ] The confession rule has twin goals: protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes [9] . Properly conducted police questioning is a legitimate and effective tool in criminal investigation [10] .

Thus not all means used to convince an accused to admit guilt are improper [11] . [ 77 ] The application of the confession rule is contextual and requires taking into account all the relevant factors to understand whether the circumstances surrounding the confession give rise to a reasonable doubt as to the confession’s voluntariness [12] . These relevant factors include: threats or promises, oppression, the operating mind requirement, and police trickery. These factors must be analysed while keeping in mind the subjective characteristics of the person being questioned [13] .

What follows is the analysis of these factors in the present matter. A. Threats and promises [ 78 ] In assessing whether a confession is the result of fear of prejudice or hope of advantage, the trial judge must keep in mind that in most cases the police will have to convince the suspect that it is in her best interest to confess as few suspects spontaneously confess to a crime. In doing so, the police may offer some kind of inducements, such as for example, a moral or a spiritual inducement.

This becomes improper only when the inducements offered, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the suspect has been overborne [14] . [ 79 ] For example, if a police officer tells a suspect that she will get a lighter sentence if she confesses, the police is offering a quid pro quo, an offer that is conditional upon a confession. This raises the possibility that the confession does not reflect the suspect’s desire to confess but rather reflects her desire to secure the suggested benefit offered by the police.

On the other hand, if the officer tells a suspect that she will feel better after having confessed, the officer has no control over the suggested benefit. There is no quid pro quo as the officer is not making an offer . In short, the existence of a quid pro quo , whether it is a threat or a promise, is an important consideration when assessing this factor [15] . [ 80 ] In the matter at hand, the evidence shows that the police officers who interacted with Ms. Deoraj from the moment of her arrest to the moment that she was brought into the questioning room did not make threats or promises to her.

There is no evidence that they offered inducements to her that would raise a doubt as to the voluntariness of her confession. Thus, the only question left to ask is whether officer Doucet offered such inducements to Ms. Deoraj. In this regard, three issues must be addressed. [ 81 ] First, when officer Doucet indicated to Ms. Deoraj that a police officer could call her daughter later, he was not making her an offer conditional upon a confession. He was simply stating the fact that this could not be done immediately but could be done later.

There is thus no quid pro quo, no promise and no inducement . [ 82 ] Second, when officer Doucet told Ms. Deoraj that she needed to release herself from all those years, he was not making her a promise that she would be freed if she confessed to stabbing Mr. Francis. The evidence shows that English is not officer Doucet’s first language and that what he meant to say was that Ms. Deoraj would feel better if she told the truth. This was nothing but a bad choice of words and the evidence shows that Ms. Deoraj understood what officer Doucet meant to say.

There is thus no quid pro quo, no promise and no inducement . [ 83 ] Third, officer Doucet told Ms. Deoraj that her daughter and her grand-daughter deserved to know why she had stabbed Mr. Francis. He also told her that she would feel better if she told the truth, that she was not a bad person and that what unfolded was the result of Mr. Francis’ inappropriate behaviour. These statements do not contain an implied threat or promise. There is no quid pro quo offered by officer Doucet in exchange for a confession. These are moral inducements suggesting to Ms.

Deoraj that she is not a bad person, that she should tell the truth because it will make her feel better and will allow her daughter and her grand-daughter to understand what happened. In light of the context of this case, and taken into consideration Ms. Deoraj’s personal subjective characteristics, these moral inducements are not, in themselves, strong enough to raise a reasonable doubt as to voluntariness of her confession. B. Oppression [ 84 ] Conditions of oppression caused or created by the police can also lead a suspect to make a false confession to escape her

situation. It can also overbear the suspect’s will to the point where she comes to doubt her memory or her claim of innocence, even if true. The factors that can create an atmosphere of oppression include, amongst others, depriving the suspect of food, clothing, water, sleep, or medical attention; denying the suspect access to counsel, excessively aggressive, intimidating questioning of the suspect for a prolonged period of time or using non-existent evidence [16] . [ 85 ] In the matter at hand, the evidence shows that Ms.

Deoraj was treated with respect by the officers who arrested her, brought her to the police station and proceeded to her booking. [ 86 ] She was arrested by officer Gélinas after Ms. Francis identified her as the person who stabbed him. Officer Gélinas decided to handcuff her immediately because he had safety concerns. His concerns were reasonable and his decision to act immediately was justified. That being said, there is no evidence that the manner in which Ms. Deoraj was handcuffed caused her pain, harm or injury. [ 87 ] Officer Gélinas advised Ms. Deoraj that she had been arrested for attempted murder.

His decision in this regard was reasonable and provided Ms. Deoraj with a proper understanding of the jeopardy that she was facing. He also advised her of her right to remain silent and to consult a lawyer once they arrived at the police station. There is no evidence that officer Gélinas purposely delayed Ms. Deoraj’s right to consult with counsel, that he somehow wanted to make her feel powerless by not allowing her to speak with counsel immediately or that she felt powerless as a result of not speaking with counsel immediately. [ 88 ] Officer Gélinas asked a female officer to search Ms.

Deoraj before leaving for the police station. He also asked a female officer to search her during the booking process. There is no evidence that these searches were done in an improper or an abusive manner. [ 89 ] Ms. Deoraj cried in the police car and officer Gélinas noticed. He did not intervene because he attributed her tears to the emotions associated with the fact that she was the suspect in Mr. Francis’ stabbing. There is no evidence that contradicts officer Gélinas’ assessment of the situation. [ 90 ] After the completion of the booking procedure, Ms.

Deoraj spoke to a lawyer for seven minutes, albeit not the lawyer of her choice. It was her decision to speak to the legal aid lawyer, given that Me Sandiford was not available. There is no evidence that she was pressured or forced to speak with the legal aid lawyer. There is also no evidence that after having spoken to the legal aid lawyer, Ms. Deoraj complained, express dissatisfaction or asked to speak to another lawyer or to Me Sandiford. [ 91 ] The evidence shows that during the five and a half hours that Ms. Deoraj was detained she made various requests, which were answered.

Officers Malebra and Pedreira visited her cell almost every half hour while doing rounds and ensured that everything was in order. [ 92 ] Thus, the Court finds that the circumstances surrounding Ms. Deoraj’s arrest, her transport, her booking and her detention were not oppressive. The mere fact that almost six and a half hours had elapsed between her arrest and the beginning of her questioning is also not oppressive, given the circumstances of the present matter. [ 93 ] As for her questioning, it began at 21:06 and lasted approximately an hour.

While the room was small and officer Doucet’s stature is impressive compared to that of Ms. Deoraj, the atmosphere in the room was courteous and even relaxed at time. As stated above, officer Doucet remained calm, polite and respectful and spoke calmly without raising his voice. His behaviour was neither hostile, aggressive, intimidating nor threatening. It was reassuring. [ 94 ] Ms. Deoraj was quickly advised that she could ask if she needed anything. She asked for a glass of water and it was brought to her. A blanket and a second glass of water were brought to her.

She did not ask for anything else and there is no evidence that she needed anything else or that she was deprived of anything. [ 95 ] The fact that officer Doucet questioned Ms. Deoraj in a gentle reassuring manner in order to relax the atmosphere or gain Ms. Deoraj’s trust or attention is not oppressive. As mentioned by the Supreme Court in R. v.

Oickel , “(t)o hold otherwise would send the perverse message to police that they should engage in adversarial, aggressive questioning to ensure they never gain the suspect’s trust, lest an ensuing confession be excluded.” [17] [ 96 ] The fact that officer Doucet explained how police investigations work and referred to DNA and fingerprint evidence is not oppressive. He never said or implied that the police had DNA or fingerprint evidence in this case and there is no evidence that suggests that Ms. Deoraj misunderstood him in this regard.

In fact, when officer Gélinas referred to the possibility that a witness could have seen Ms. Deoraj getting out of her apartment after Mr. Francis was stab, she replied that it was impossible. This clearly shows that Ms. Deoraj properly understood officer Doucet. Thus, this is not a situation where the police used non-existent evidence to overborn the will of a suspect. [ 97 ] While it is true that Ms.

Deoraj looked tired and emotional at times, that she mentioned having a fever, that she expressed the desire to go home, the evidence shows that neither the fact that she was tired, her emotional state nor her health limited or affected her ability to withstand questioning. The best evidence of this is the fact that when she wanted to convince officer Doucet that she was not home at the time of the stabbing, her attitude changed. She spoke louder, in a more affirmative manner, and raised her head. The blanket fell from her shoulders and she did not pick it up.

This contrasts with her previous behaviour that consisted of laying her head against the wall, speaking in a weak voice and holding the blanket. [ 98 ] That being said, it is normal for a suspect being questioned by the police to feel a certain level of discomfort. She may feel worried, upset, sad, embarrassed or ashamed either as a result of her actions or her arrest and detention. This not enough for a finding of oppression.

As Justice Proulx mentioned: Certes, il est toujours prudent de garder à l’esprit que toute tension ou pression observée chez le sujet face à son interrogateur, liée soit à l’inconfort, l’embarras ou encore la honte que peut ressentir le sujet, à la suite de son arrestation, de sa détention et de la confrontation avec un enquêteur qui le ramène à une réalité qu’il désire oublier à tout prix, se situe de prime abord dans la normale des choses. [18]

[ 99 ] In short, in the matter at hand, there is no evidence that Ms. Deoraj felt discomfort beyond what could be considered the usual discomfort associated with being questioned by the police in relation to the stabbing of your partner. [ 100 ] Finally, officer Doucet’s questions regarding the couple’s relationship were not oppressive. Ms. Deoraj was arrested and was being questioned in relation to the stabbing of her partner. It is normal for officer Doucet to take steps to gain information on the suspect and in such a case, on the suspect’s relationship with the victim.

It is also normal for officer Doucet to question Ms. Deoraj on her relationship with Mr. Francis. This is nothing but good police work. Concluding otherwise would leave police with no room for questioning. In any event, there is no evidence that Ms. Deoraj was vulnerable and that those questions, whether by themselves or combined with the moral inducements mentioned previously, brought her to collapse emotionally and to lose her ability to withstand questioning. [ 101 ] The Court finds that the conditions surrounding Ms. Deoraj’s questioning were not, in themselves, oppressive. C.

Operating mind [ 102 ] The operating mind factor recognises that there is a mental component to the voluntary nature of a confession, albeit limited. This mental component requires the suspect to have sufficient cognitive capacities to understand what she is saying and what is being said. It includes the ability to understand a caution that the evidence can be used against her [19] . [ 103 ] In the matter at hand, the evidence shows that Ms. Deoraj had sufficient cognitive capacities to understand that she had been arrested for the attempted murder of Mr.

Francis and to understand the jeopardy that she was facing. [ 104 ] She understood that she had the right to remain silent immediately upon being advised of that right.

She understood her right to counsel and was able to provide the name of her lawyer, to decide to speak to the legal aid lawyer after being advised that her counsel of choice was not available and to speak with the legal aid lawyer for seven minutes. [ 105 ] In addition to this, the video of her questioning shows that she knew that officer Doucet was a police officer, that everything that she was saying was recorded and could be used against her, that she had the right to remain silent and that no one could force her to talk by making promises or threats. [ 106 ] The answers provided during her questioning, including her attempt to convince officer Doucet that she was not home when Mr.

Francis was stabbed, show that she is fully aware of the issue at stake. Her answers are coherent and relevant to the issues being discussed. She is able to correct statement made by officer Doucet and provide explanations when needed. [ 107 ] There is no evidence that the emotions associated with the situation, the nature of her relationship with Mr.

Francis, the fact that she had been the victim of conjugal violence in the past or the fact she was tired and running a fever affected her to a point where she lost her abilities to understand what was going on or to withstanding questioning. [ 108 ] Thus, the Court concludes that Ms. Deoraj had an operating mind at all times including when she confessed to stabbing Mr. Francis. D. Police trickery [ 109 ] A final consideration in determining whether a confession is voluntary or not is the use of trickery.

While this factor still relates to the voluntariness of a confession, its more specific objective is maintaining the integrity of the criminal justice system. In assessing this factor, the trial judge has to be wary not to unduly limit police discretion. Police officers are entitled to use tricks or other forms of deceit.

What should be repressed vigorously is police conduct that shocks the community such as, for example, a police officer pretending to be a chaplain or a legal aid lawyer [20] . [ 110 ] In the matter at hand, the Court finds that police trickery was not used and thus, this factor has no relevance in the Court’s analysis. E. Combined assessment of all the factors [ 111 ] In the matter at hand, after having taken into consideration all of the circumstances surrounding Ms.

Deoraj’s questioning, including her personal subjective characteristics, the Court finds that the prosecution has proven, beyond a reasonable doubt, the voluntary nature of Ms. Deoraj’s confession. CONCLUSION Therefore, the Court: [ 112 ] DECLARES Ms. Deoraj’s confession as being admissible into evidence. __________________________________ MÉLANIE HÉBERT, J.C.Q. Me Camille Boucher

Attorney for the Prosecutor Me Sharon Sandiford Attorney for the Accused