R. v. Butler, 2019 NLSC 184

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Butler , 2019 NLSC 184 Date : October 22, 2019 Docket : 201901G0524 Her Majesty The Queen v. Philip Charles Butler Restriction on Publication: Pursuant to subsection 648(1) (and subsection 645(5)) of the Criminal Code , no information regarding any portion of the trial at which the jury was not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict. Before: Justice Valerie L. Marshall Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: September 11, 12, 13, 16, 17, 2019

Summary: The Crown applied for a ruling on the admissibility of the Accused’s statement to police. HELD: There is reasonable doubt about whether the statement was made voluntarily. It is therefore not admissible at trial.

Appearances: Alana Dwyer and Scott Hurley Appearing on behalf of the Crown Karen Rehner and Timothy O'Brien Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Oickle, 2000 SCC 38; R. v. Cairney, 2009 ABQB 123; R. v. Di Long Feng, 2015 BCSC 455; R. v. Hoilett(1999), (ON CA), 136 C.C.C. (3d) 449 (Ont. C.A.). STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985 c. C-46. REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] The Accused, Philip Butler, has been charged with second degree murder under section 235(1) of the Criminal Code ofCanada, R.S.C. 1985 c. C-46.

He is accused of murdering his brother, George Butler, on May 21, 2018. His jury trial is scheduled tocommence January 27, 2020. The Crown seeks a pre-trial ruling on the admissibility of the Accused’s recorded statement to the police. BACKGROUND [2] On the evening of May 21, 2018 at about 8:30 p.m., the Accused was arrested at his residence in Conception Bay South. Hewas transported to RNC headquarters, where he eventually spoke with legal counsel by phone. The Accused chose to be interviewed bypolice in the absence of legal counsel.

The recorded interview started close to midnight that evening, and ended shortly after 4:30 a.m.on the morning of May 22, 2018. [3] The Crown filed this application seeking a ruling from the Court that the Accused’s recorded interview/statement to police wasmade voluntarily, and is admissible at trial.

SUMMARY OF EVIDENCE [4] At the hearing the Crown entered as an exhibit the enhanced audio recording of the interview (consent exhibit #2); along witha transcript of that recording (consent exhibit #1). All Counsel acknowledged that there were some inaccuracies in the transcript, and itwas to be used only as an aid. Some of the inaccuracies were corrected at the hearing. [5] The Crown also entered as an exhibit the video/audio recording of the Accused while he was in the interview room (exhibitL.A. # 1). This was viewed in Court.

In addition to the recorded interview, the video/audio recording further portrayed a period of aboutan hour preceding the commencement of the interview, when the Accused was waiting in the interview room. The Crown did not seek aruling on the admissibility of that portion of the video/audio recording leading up to the commencement of the interview; nor did theCrown seek a ruling on the Accused’s utterances made from the time of arrest, up until the interview commenced.

Rather, thisapplication was restricted to the issue of the voluntariness of the Accused’s statement, being the recorded interview, which commencedjust before midnight, and ended shortly after 4:30 a.m. on May 22, 2018. [6] At the hearing, the Crown called four police officers to testify: Constable Jamie Cleary, who was the arresting officer;Constable Lisa Anderson, who began and conducted the majority of the interview; Sergeant William Rossiter, who conducted the latterpart of the interview; and Constable Alexandra Mackey, who was part of the command triangle of the investigative team, and whomonitored the interview from a separate room. [7] Constable Cleary described the circumstances of the arrest of the Accused.

He testified that on the evening of May 21, 2018,

he responded to a dispatch call regarding a possible homicide at a residence on Comerford’s Road, Conception Bay South. He and two other officers arrived at Comerford’s Road at approximately 8:25 p.m. At around 8:30 p.m., Constable Cleary arrested the Accused in the residence. He read the rights and caution to the Accused. [ 8 ] At the time of arrest, Constable Cleary smelled alcohol on the Accused’s breath. However, he described the Accused to be very aware, and not under any apparent distress.

Constable Cleary indicated that he observed the Accused had minor injuries, but nothing life threatening. [ 9 ] Constable Cleary’s evidence was that the Accused wanted to speak to a lawyer; and Constable Cleary made efforts at the scene to contact a lawyer. The efforts were unsuccessful. At about 8:50 p.m., they departed Comerford’s Road and the Accused was transported to RNC headquarters. Constable Cleary’s evidence was that they arrived at headquarters around 9:14 p.m. [ 10 ] Subsequent to their arrival at headquarters, Constable Cleary made exemplary efforts trying again to contact a lawyer for the Accused.

Specifically, he not only made several phone calls to the lawyers suggested by the Accused, he also went and knocked on a lawyer’s door for the Accused. The Accused eventually spoke with a lawyer. [ 11 ] Constable Cleary described the Accused’s demeanor as calm and polite. During the course of Constable Cleary’s interaction with the Accused, and prior to the interview commencing, the Accused did make several utterances. For example, the Accused indicated that his brother had stuck a needle in the Accused’s arm; and that the Accused thought he was going to die.

These comments raised no concerns for Constable Cleary. [ 12 ] Constable Anderson was assigned to interview the Accused. She took him to the interview room shortly after he had spoken with his lawyer. The Accused’s conversation with the lawyer had been very brief. According to Constable Anderson’s evidence, that conversation was from 10:34 p.m. to 10:38 p.m.

Constable Anderson asked the Accused if his lawyer was coming to headquarters, and he indicated that was not the case. [ 13 ] As stated, the Court viewed the video/audio recording of the Accused in the interview room during the period of about an hour leading up to the beginning of the interview. The beginning of the video depicted Constable Anderson entering the room shortly after 11 p.m. The Accused was seated, and wrapped in a tin foil blanket. Constable Anderson had a brief conversation with the Accused about food, drink, and cigarettes. She asked the Accused when he ate last.

He indicated that he had been smoking crack for two days. He indicated to Constable Anderson that he was really cold; and he requested a cigarette. Constable Anderson left the room, and another officer remained in the room with the Accused. The Accused conversed with the officer in the room. [ 14 ] Shortly before 11:30 p.m., the video showed that an officer accompanied the Accused out of the interview room for the purpose of seizing his clothes.

The Accused let that officer know that his brother had hepatitis C. [ 15 ] At around 11:51 p.m. on the video, the Accused returned to the room clothed in white coveralls and sneakers. The white coveralls were referred to in evidence as a Tyvek suit. Constable Anderson then came in the room, and she again asked if the Accused wanted anything. She then proceeded to again leave the room to ask someone to try to get the Accused a cigarette. The video depicted the Accused subsequently putting on a second Tyvek suit over his first one. [ 16 ] Next on the video, Constable Anderson returned to the room.

She turned on the machine to start the audio recording (consent exhibit #2) and to commence the interview, just before midnight on May 21, 2018. She indicated that the time of commencement of the interview was 11:59 p.m.; however, the video showed it was closer to 11:58 p.m. [ 17 ] Constable Anderson’s evidence was that throughout the interview, the Accused was sober, alert, relaxed and appeared able to comprehend. She had no concerns, whatsoever, for his well-being. Her evidence was that the Accused did not appear to be in any physical distress, nor did he appear to need medical assistance.

She acknowledged that he complained of being cold, even though the room was warm, and he was wrapped in a blanket. The video portrayed the Accused lying on the floor with the blanket during a portion of the interview. [ 18 ] As shown in the video, at the outset of the interview, Constable Anderson clearly expressed to the Accused to let her know if he was hungry, thirsty or too cold. She also assured the Accused he would get a cigarette; however, she made it clear to the Accused that providing the cigarette was not contingent on his talking to her.

She further confirmed that the Accused had been read his rights, that he had spoken to a lawyer, and that he understood his lawyer’s advice. She indicated to the Accused that he did not have to speak to the police. He indicated that he understood. [ 19 ] Shortly after the interview started, the Accused raised medical concerns. To begin with, at around 12:06 a.m., the Accused expressed surprise that no one had brought him to hospital yet. Constable Anderson did not ask why he said that.

Rather, the following exchange took place: Philip Butler: The hospital probably be the right spot to be bringing me and I’m surprised that nobody has even brought me to a hospital yet Constable Lisa Anderson: Okay and you know what –

Philip Butler: That’s- that’s- that- that and – and – and – and you’re, the way that you talk I just don’t want to say anything to you Constable Lisa Anderson: Okay Philip Butler: Right Constable Lisa Anderson: And you know what – Philip Butler: Like I could probably give you enough information right now that you’d look at me and be like self-defense but I just don’t want to talk to you Constable Lisa Anderson: Okay well just hear me out, I just want to make sure – [ 20 ] After the above exchange, the Accused indicated again that he did not want to talk to Constable Anderson.

Then, at around 12:07 a.m. on the video, the Accused made a clear request to see a doctor. The exchange was as follows: Philip Butler: Have nothing to say to you, I’m sorry Lisa. I have nothing to say to you Constable Lisa Anderson: Okay Philip Butler: I would like to see a doctor Constable Lisa Anderson: Okay, so why would you like to see a doctor?

And you know what I do want to talk to you about what happened right because, ah but again I just wanted to make sure that your- your [ 21 ] In the foregoing exchange, as will be discussed later in this decision, there was no appreciable pause after Constable Anderson asked the Accused why he wanted to see a doctor. Rather than waiting for his response, Constable Anderson deflected his request by saying that she wanted to talk about what happened. The Accused then proceeded to provide information pertaining to the events of the evening before.

Included in that information was that his brother had “jammed a needle” into the Accused, and that his brother had hepatitis C. Further information included that they had been “smoking crack” for the past couple of weeks. [ 22 ] Instead of seeking medical attention for the Accused, Constable Anderson continued with the interview. At one point on the video, the Accused showed Constable Anderson where his brother hit him with a needle. Constable Anderson stated that it’s “pretty red hey”.

The Accused also provided further information with respect to the evening, including that his brother had hit him with a pipe, and that his brother had sexually assaulted him. [ 23 ] At about 12:26 a.m., the Accused again clearly requested to see a doctor. This second request for a doctor was about 20 minutes after his first request. The Accused then informed Constable Anderson that he was bleeding. Again, instead of seeking medical attention for the Accused, his second request for a doctor was also deflected; and Constable Anderson continued with the interview.

A portion of the exchange at that time was as follows: Philip Butler:

And I really wanna see a doctor Constable Lisa Anderson: Yea Philip Butler: Please Constable Lisa Anderson: Let me just ask you about that so you want to see a doctor you have ahm any injuries right now that Philip Butler: I think my ass is bleeding Constable Lisa Anderson: Okay Philip Butler: I think Constable Lisa Anderson: Kay Philip Butler: There was blood on the toilet paper Constable Lisa Anderson: Okay, and – Philip Butler: I didn’t ah, I didn’t intentionally do anything to provoke George, ahm, whatever happened to him last night, ahm… Constable Lisa Anderson: So what point did he poke you with this needle?

Philip Butler: After I came out of the bathroom [ 24 ] After he provided further information, the Accused then made a third request to see a doctor. Again Constable Anderson did not seek medical attention in response to the Accused’s request. Rather, her response was “… we’ll talk about that…”. That exchange

took place at around 12:29 a.m., as follows: Philip Butler: Can I get that smoke, please? Constable Lisa Anderson: Yea we’ll take a break and ahm and again Philip just ah you know I’m gonna get you a smoke regardless of if you speak to me or not Philip Butler: Mhmm Constable Lisa Anderson: Okay just wanted to Philip Butler: Yea Constable Lisa Anderson: Let you know that okay, can I get you anything else?

Philip Butler: Doctor [1] Constable Lisa Anderson: Okay, would you be ahm okay well I guess I’ll, we’ll talk about that, alright so I’m just gonna step out it’s 12:31 so I’m gonna leave the recordings going okay Philip Butler: Yea Constable Lisa Anderson: Alright [ 25 ] After the foregoing exchange, Constable Anderson exited the interview room, and another officer took the Accused out for a cigarette. The Accused returned to the interview room about 15 minutes later. The officer provided the Accused with a soft drink and water.

The video portrayed the Accused lying down by the heater. [ 26 ] He was still lying by the heater when Constable Anderson came back into the room at approximately 1:10 a.m. At that time Constable Anderson indicated that his seeing a doctor can happen, but she asked if he could wait until they finished talking. The Accused agreed. The following exchange took place beginning at about 1:10 a.m. on the video: Constable Lisa Anderson: Philip how are ya? Are- you hanging in there? Philip Butler:

Yea Constable Lisa Anderson: Yea okay. Do you want me to move this ah I’ll move this blanket just for now, it’s probably, or do you want it? Are you doing – Philip Butler: Uh Constable Lisa Anderson: I’ll just lay it over here for now, okay (moving blanket). Alright did you want to sit up or you wanna stay where you’re to or you’re more comfortable there? More comfortable there, okay, alright okay so it’s 1:12am okay so the officers brought you out for a cigarette? Philip Butler: Yea Constable Lisa Anderson: Okay and you got Pepsi, so other than that are you doing okay?

Philip Butler: Yea Constable Lisa Anderson: Yea, okay, alright so I know that you said that you wanted to see a doctor Philip Butler: Yea Constable Lisa Anderson: So I’m just wondering now ahm you know we can certainly make that happen I’m just wondering like how bad is it bleeding? Philip Butler: I don’t know Constable Lisa Anderson: Okay, how long has it been bleeding for? Philip Butler: A couple hours

Constable Lisa Anderson: Couple hours, okay, okay so you think it’s something that can wait a little bit until we’re finished talking?

Philip Butler: Sure yea Constable Lisa Anderson: Okay alright well again if that changes you let me know, kay Philip Butler: Yea Constable Lisa Anderson: Alright ahm so Philip I’m just trying to understand like I guess what happened right cause you- you- you told me a lot of things but obviously there’s you know for me trying to piece it together in my head I’m just trying to understand I guess a little bit about what happened or a little bit more about I guess the timeline kind of thing, right so I want you to correct me if I’m wrong so you said that George was living away [ 27 ] In the foregoing exchange, Constable Anderson asked the Accused about the bleeding; but she did not mention the other medical issues raised by the Accused, including the hepatitis C, and the sexual assault.

Rather, she then proceeded on with questioning the Accused for approximately another half an hour; and the Accused continued to provide Constable Anderson with information about the events in question. The Accused remained lying on the floor by the heater; until he sat up on the floor at around 1:30 a.m.

At around 1:44 a.m. on the video, a further exchange took place containing the Accused’s fourth request to see a doctor for another medical issue, as follows: Constable Lisa Anderson: Okay so tell me what happened then Philip Butler: We were talking, I told- I already told you that Constable Lisa Anderson: Okay Philip Butler: Stop cutting me off Constable Lisa Anderson: Sorry Philip Butler: Lisa Constable Lisa Anderson:

Okay Philip Butler: Do you want to hear everything? Take your time, take your time Constable Lisa Anderson: And you know what I – Philip Butler: You might have to watch this video and listen to that recording a hundred times before you fucking are able to piece everything together okay I- I- I- Constable Lisa Anderson: Kay I’m sorry, I’m sorry I just, again it’s just me trying to- Philip Butler: Let me see a doctor I want to go see a doctor get out of here go on go do your thing I want to see a doctor I’m having pains in my chest.

I want to see a doctor I’m not saying another god damn word until I see a doctor, I want to see a doctor and I’m having pains in my chest, if I die it’s on your hands… Constable Lisa Anderson: And you know what I’m sorry for cutting ya off I do want to hear Philip Butler: No listen I don’t even want to hear your voice anymore missus I will not speak with you anymore send in Cleary I’m not speaking with you at all get out Constable Lisa Anderson: And why you want- Philip Butler: Get out, get out, get out, get out, get out. Yes my brother is dead. I’m a fucking victim.

I’m actually having pains in my chest though I am since I’ve got here I was hoping I would die. Uh I should probably see a doctor… (Sighs)… Constable Lisa Anderson: Sounds like you have a lot going on in your life and you still got a lot going on in your life… And that’s what I’m trying to understand about last night cause you said like you’re a victim and- and you know what it sounds like there was a lot going on there last night. So I’m just trying to understand how all this happened right. Philip Butler:

I don’t know how it (coughs) I don’t know how that ah I should see a doctor go get me a fucking doctor I’m serious I think I’m having a heart attack (coughs) Constable Lisa Anderson: So what kind of symptoms are you having? Philip Butler: Pains in my chest. Jaw, my jaw is fucking Constable Lisa Anderson: Alright I’m just going to step out the officer left you some water there as well okay Philip Butler: Yea ah can somebody step in here when you leave please I Constable Lisa Anderson: Instead of me you mean?

Philip Butler: Yea (unintelligible) I- no I’d rather not be alone is what I’m saying, yeah I’d rather not be alone Constable Lisa Anderson: And why is that? …You got a lot going on [ 28 ] The above exchange contains several pleas by the Accused to see a doctor for another medical concern, being chest pains. Constable Anderson still did not stop the interview, even though she was aware of the Accused’s previous complaints, and that he was now complaining of chest pains.

Rather, as shown in the video, Constable Anderson then proceeded to indicate to the Accused that one of the officers had interviewed his other brother, and she continued asking the Accused questions, for about 15 more minutes. The Accused continued to provide information in relation to what transpired on that evening. [ 29 ] In her testimony, Constable Anderson explained that after the Accused first mentioned chest pains, he did not seem to be in distress and she saw nothing life-threatening.

After he again complained of chest pains and made a further request to see a doctor, she then spoke to the investigative team about it. [ 30 ] More specifically, commencing at around 2:02 a.m. on the video, the fifth exchange in which the Accused requested to see a doctor was, as follows: Constable Anderson: So Darlene picked you up where’d you guys go? Philip Butler: Ah (unintelligible)… Ah, (clears throat) (sighs) I should see a doctor I really should uh… Constable Lisa Anderson: And why do you think you should see a doctor? Philip Butler:

Because I’m having pains in my chest missus Constable Lisa Anderson: Okay I- Philip Butler: I really am Constable Lisa Anderson: Okay Philip Butler: Like I’m not fucking around I got pains in my chest, my jaw is starting to hurt too, well it was tingling first and that is the two main signs of having a heart attack Constable Lisa Anderson: Kay Philip Butler: The next one is the arm starting to go numb or whatever Constable Lisa Anderson: Kay Philip Butler: But that’s already kind of there but I’m more thinking that that’s because I hit my elbow Constable Lisa Anderson: Okay Philip Butler: But I- yea Constable Lisa Anderson: And I’m asking you this I’m just wondering ahm cause it sounds like a lot went on last night, do you have any other injuries I know you said like your- your, your bum you said is- is bleeding your ass is bleeding Philip Butler: Mm

Constable Lisa Anderson: Do you have any other injuries that we should be aware of? Philip Butler: I don’t think so Constable Lisa Anderson: Okay Philip Butler: Why? Constable Lisa Anderson: No I’m just curious cause it sounds like a lot went on last night right with you said he was beating you up and throwing you around and. Kay alright I’m just gonna step out okay and I’ll ah speak to the officers and ahm and again I’m going to leave the recording on okay 2:05 okay [ 31 ] Constable Anderson then left the room to speak with the investigative team.

The Accused waited in the room under the blanket, on the floor, by the heater. At about 2:13 a.m., Constable Anderson returned and finally informed the Accused that they would bring him to a doctor. Her evidence was that the decision to seek medical attention was that of the investigative team. [ 32 ] Constable Anderson also asked the Accused if he would he be willing to have a sexual assault kit done, if he was brought to the doctor. The following was the exchange at about 2:13 a.m. on the video: Constable Lisa Anderson: Yeah okay it’s 2:14.

I just spoke to the officers so ahm we’re gonna ah they’re gonna bring you over to ah to get checked out to see a doctor Philip Butler: Mhmm Constable Lisa Anderson: So you said ah ya know you talked about being a victim of ah sexual assault really with your brother right Philip Butler: Yea Constable Lisa Anderson: Ahm so obviously that’s ahm good information for our file you know what I mean like that’ll- that’ll give us evidence so I’m just wondering now if we bring you over to ah the doctor are you willing to have like a sex assault kit done? Philip Butler: No

Constable Lisa Anderson: No how come? Philip Butler: Cause I’ve been violated enough [ 33 ] Constable Anderson continued to encourage the Accused to get a sexual assault kit done, and she explained that it would be valuable information to have for the investigation. The Accused refused to attend hospital in the Tyvek suit.

The exchange on the video was, as follows: Constable Lisa Anderson: Yeah (sighs) and you know what I worked in the- the sex assault unit for a number of years and I spoke to a lot of people that were ya know in your shoes and I- I’m not saying that I understand what you’re going through cause I don’t but Philip Butler: (Unintelligible) don’t understand Constable Lisa Anderson: Yeah cause I’m just wondering cause that would obviously ahm ya know if you get this kit done that would be valuable information for us to have Philip Butler: Yea obviously Constable Lisa Anderson: For the investigation right Philip Butler: Yeah (sighs) Constable Lisa Anderson: Okay so you don’t think you’re gonna be up for the not be up for it that’s not a good choice of words but you don’t think you’re gonna wanna have that kit done?

Philip Butler: No Constable Lisa Anderson: Okay well what we’ll do is we’ll bring you over to get ahm cle- ya know to get looked at and ah I mean the nurses over there can talk to you about that a little bit more right because I’m obviously not a medical doctor or a nurse so I can’t really talk to you about what it is and what we would require right Philip Butler: Yea

Constable Lisa Anderson: Okay alright so our street patrol officers will bring you over there ahm so I’m just gonna step out and then they will ah Philip Butler: Can I get some clothes? (Moving around) Constable Lisa Anderson: Unfortunately you can’t you can’t have any clothes here right cause one of the officers have to take your clothes right Philip Butler: Yeah I want to stay here then Constable Lisa Anderson: Well- Philip Butler: I’m not going to no hospital like this. Let me know when they’re ready to bring me over to the fucking holding cells or whatever.

I uh… Constable Lisa Anderson: Are you still having pains in your chest? Philip Butler: I’m not worried about it [2] Constable Lisa Anderson: Well we’re obviously concerned about that Philip Butler: Well yes yea (unintelligible) hospital Constable Lisa Anderson: And what are you concerns with going to the hospital? Just cause you don’t have clothes is that what I’m understanding? Philip Butler: I look like a fucking skeet. I’m not going to no hospital looking like a skeet.

Constable Lisa Anderson: Okay. Alright so I’m just gonna step out and let them know okay 2:18 [ 34 ] The video showed that Constable Anderson then left the room; and the Accused remained lying on the floor, by the heater. [ 35 ] With respect to the Accused’s request for clothes to attend hospital, Constable Anderson testified that she was not aware of clothes being available at headquarters. [ 36 ] Constable Anderson came back in the room about 2:24 a.m. on the video. She asked the Accused if he was still awake. She proceeded to encourage him to go to the hospital to get checked.

The exchange commencing at about 2:25 a.m. was, as follows: Constable Lisa Anderson: So the officers are going to bring you over to the hospital to get checked out Philip Butler: Not going Constable Lisa Anderson: They have to though Philip Butler: I’m not going Constable Lisa Anderson: And while you’re over there- Philip Butler: I refuse to go Constable Lisa Anderson: Okay while you’re over there you can speak to a nurse or a doctor and they can explain to you about the whole sex piece like the sex assault kit Philip Butler: I’m not going Constable Lisa Anderson: Okay Philip Butler: You can bring me down to a holding cell or whatever I refuse to seek medical attention [ 37 ] Constable Anderson exited the room.

The Accused remained lying on the floor by the heater. Constable Cleary then came in the room shortly after 2:30 a.m. The Accused sat up. He also tried to encourage the Accused to go to the hospital; however, the Accused indicated that he did not want to go dressed as he was in the Tyvek suit.

[ 38 ] Constable Cleary’s testimony was that he was not aware of any efforts to obtain clothes for the Accused. His evidence was the RNC does not have spare clothes. [ 39 ] In the video, Constable Cleary explained to the Accused that there were no clothes available. He also indicated to the Accused that they could put him in another room at the hospital instead of the regular waiting area, but that did not satisfy the Accused. The Accused said he could not do it, and said he’d been through enough. Constable Cleary continued to try to encourage the Accused to go.

Part of the exchange at about 2:32 a.m. was, as follows: Constable Jamie Cleary: Yea something might hah you could- you could be needing- you could need serious medical attention I’m not a doctor and there’s no one in this building now that is okay Philip Butler: Yeah no I’m good, I’m good I’m, bring me to a holding cell, please [ 40 ] Constable Cleary then exited the room. As shown on the video, the Accused lay back down under the blanket, by the heater.

Constable Cleary’s evidence was that he perceived the Accused had refused medical treatment. [ 41 ] The video showed Constable Anderson then came back in the room at about 2:45 a.m. She informed the Accused that the paramedics were coming to take a look at him. [ 42 ] The paramedics arrived around 2:55 a.m. They hooked the Accused up to a heart monitor. They discussed his chest pains, and asked about his drug use. He informed them he had been on a cocaine binge. There was no discussion with the paramedics regarding the alleged sexual assault, bleeding or hepatitis C.

The blood monitor results were good; however, the paramedics informed the Accused that to ensure he was okay, he really needed to go to hospital to get blood work done. The Accused refused to go to the hospital again, but indicated he would if he was given some clothes to do so. The paramedics left the room at around 3:03 a.m. [ 43 ] At around 3:16 a.m., the video portrayed an officer entering the interview room with the paramedics.

The Accused continued to lay under the blanket by the heater while the following exchange took place: Unknown Officer: (Unintelligible) ah look the doctor over at the hospital can’t basically accept your refusal ah given the information you provided so the drug use if you answer some of the paramedics questions here and talk to em they may have ya know they may let ya basically let you medically refuse cause their concern given your the drug use and your what your complaints about chest pain that we might have to force you to go over there and I know you refused Philip Butler: Give me some fucking clothes man I’ll go Unknown Officer: I know that Philip Butler: That’s all I’m asking for Unknown Officer: Philip Philip Butler: Like dude go to Walmart and fucking get some fucking clothes I don’t give a fuck Unknown Officer: It’s 3:30 in the morning

Philip Butler: I’m not going over in this fucking suit Unknown Officer: Philip Philip Butler: It’s not happening Unknown Officer: It’s 3:30 in the morning there’s no- there’s no clothing Philip Butler: Well we can wait till nine o’clock [ 44 ] As shown on the video, the Accused proceeded to answer the paramedics’ questions regarding his use of crack cocaine prior to arrest. The paramedics confirmed with the Accused that he was still refusing to go to the hospital for further testing. One of the paramedics left the room at around 3:19 a.m., apparently to contact and give the doctor that information.

The Accused then signed a refusal of medical treatment form for the other paramedic. That other paramedic left the room around 3:20 a.m. The Accused continued to lay under a blanket, on the floor, by the heater. The paramedics did not return. The Accused was never given clothes, and he did not attend hospital. [ 45 ] The refusal of medical treatment form signed by the Accused was entered into evidence. It was not signed by a doctor, and it did not appear to have been signed by two of the paramedics.

Faint writing suggested it may have been signed by one paramedic. [ 46 ] As shown in the video, Constable Anderson re-entered the interview room again at around 3:29 a.m. She indicated to the Accused that she had contacted the lawyer he had spoken with earlier, and that she had told the lawyer that the Accused had been a victim of a sexual assault. She informed the Accused that the lawyer wanted to speak to him again; however, the Accused said no, and he asked to be taken to his holding cell. Constable Anderson exited the room at about 3:31 a.m., according to the video.

She came back at 3:35 a.m., again requesting that he speak to a lawyer. The Accused again declined, and Constable Anderson again left the room. [ 47 ] Sergeant Rossiter then became involved in the interview as he was asked by the investigative team to continue the interview. The evidence was that Sergeant Rossiter was tasked by the team to focus the Accused on the homicide, and the allegation of sexual assault. His evidence was that he had been informed that an ambulance had been called to respond to the Accused’s chest pains, and he understood that the Accused had been medically cleared.

Sergeant Rossiter had also been told that Constable Anderson had called a lawyer a second time to advise that the Accused was alleging that he was a victim of sexual assault; and although Constable Anderson had offered for the Accused to speak with the lawyer, the Accused had again refused. [ 48 ] As shown in the video, at approximately 3:39 a.m. Sergeant Rossiter entered the interview room. The Accused was laying on the floor. Sergeant Rossiter asked him to sit up, and the Accused complied.

Sergeant Rossiter endeavoured to engage the Accused in conversation, and he asked the Accused a number of questions. [ 49 ] In his testimony, Sergeant Rossiter described the Accused as polite, cordial, alert, able to comprehend, and not in any apparent discomfort. Sergeant Rossiter’s evidence was that there were no signs that he should not interview the Accused.

The following exchange took place at about 3:47 a.m.: Sergeant Bill Rossiter: And it’s like opening up a puzzle with like ten thousand pieces and we’re trying to put the puzzle together and one of the things Lisa brought to the table was you had made a comment that you also were a victim and that she’s of the belief, her understanding that something occurred in the last half a day, a day, day and a half and it’s relevant because it helps us put the puzzle together.

It also provides us an opportunity to make sure A. that you’re ahm physically safe, that we- we have a responsibility to also to make sure that you know you have the a-accessibility to a treatment ahm as part of the- Philip Butler: I’m not gonna get no rape test done

[ 50 ] The video further depicted Sergeant Rossiter unsuccessfully trying to engage the Accused to provide further information in relation to the events. The Accused made some utterances to Sergeant Rossiter, but he did not seem to add anything significant to the information he had already relayed to Constable Anderson. [ 51 ] In the video, Sergeant Rossiter encouraged the Accused to have another conversation with his lawyer.

Sergeant Rossiter also put to the Accused that it would be beneficial for him to go to hospital for medical reasons, and to assist in the investigation. [ 52 ] In the video, the Accused repeated to Sergeant Rossiter several times that he wanted to go to the holding cell. During part of the interview with Sergeant Rossiter, the Accused has his head face down on his hands which were on the table. He eventually again lay under a blanket, by the heater.

The Accused still had concerns over hepatitis C, as he expressed in the following exchange, which took place at about 4:28 a.m. on the video: Sergeant Bill Rossiter: So and I’ll tell you why it’s important there’s a couple of reasons, one I think ah Lisa understands that there was an issue with a needle and Lisa is of the understanding that ah you’re also a victim. So my two questions are about that and then I’ll leave you alone okay so do you think it would be beneficial to go to the hospital for medical reasons?

Philip Butler: Get me some clothes and I’ll go Sergeant Bill Rossiter: Get you some clothes and you’d go. Alright. The other thing is would you go to the hospital ahm I guess for the purpose of assisting our investigation with regards to collecting anything? Philip Butler: I wanna be tested for Hepatitis C Sergeant Bill Rossiter: You wanna be tested for Hepatitis C? Philip Butler: Yea. With regards to getting a rape test done?

Sergeant Rossiter: Okay no I appreciate that like I said I got two questions Philip Butler: Yea just get the fuck out man your two questions are over Sergeant Rossiter: Alright Philip Butler: Your time’s up [ 53 ] Sergeant Rossiter’s evidence was that he was not aware of any efforts to locate clothing for the Accused to go to hospital. Sergeant Rossiter agreed that “in totality”, the true investigative purpose of the sexual assault kit was to assist with the homicide investigation.

[ 54 ] According to the video, Sergeant Rossiter exited the room around 4:31 a.m. He came back in at 4:36 a.m. with Constable Cleary, and informed the Accused that there were no clothes to give him, but that they were more than willing to take him to hospital. The interview ended. As shown on the video, the Accused is cuffed and taken out of the room at about 4:37 a.m. [ 55 ] Constable Mackey’s testimony provided further background. As stated, Constable Mackey was part of the command triangle of the investigative team. She participated in meetings to determine the direction of the investigation.

Her evidence was that as monitor of the interview, she watched the interview on a screen in a separate room, with headphones. When the Accused was not being interviewed, patrol officers monitored the Accused on a no-volume screen. [ 56 ] Constable Mackey was questioned about the delay in starting the interview. To recap, the Accused had been arrested around 8:30 p.m., but the interview did not start until just before midnight.

Constable Mackey explained the delay allowed time for interview preparation, and to gather information on the investigation. [ 57 ] Constable Mackey was asked why the police did not wait until the next morning to start the interview. Her response was that the police like to start the interview as close to the event as possible. [ 58 ] Constable Mackey’s evidence confirmed that she was aware that the Accused had complained of chest pains. She was also aware that the Accused had requested to see a doctor several times in the course of the interview.

However, she did not think there was a need to intervene when the Accused first complained of chest pains. She was also aware that the Accused had suggested that he had been sexually assaulted, and that he was bleeding. Constable Mackey made the decision to get him to a doctor when the Accused became more persistent about going to the hospital with respect to the chest pains, and after Constable Anderson had stepped out of the room to address the issue. [ 59 ] Constable Mackey’s evidence was that when a suspect complains of chest pains, there are concerns of voluntariness of the statement.

Her evidence was also that the Accused’s complaint had to be dealt with, and indeed it was protocol to deal with the Accused’s request to see a doctor. She suggested that there is always a concern as to the well-being of a person being interviewed. [ 60 ] Constable Mackey’s evidence confirmed that she was also aware that while the Accused wanted to go to the hospital because of the chest pains, he did not want to go to the hospital in the Tyvek suit. She described this as a “curve ball”, and a novel situation. She confirmed that there were no efforts made to get any clothes for the Accused.

Further on this, Constable Mackey’s evidence was that the RNC do not have access to clothing, and she was not aware of a suspect ever having been provided with clothing. Further, when police process a suspect it is normal to seize a suspect’s clothes, and to provide the suspect with a Tyvek suit, and footwear. [ 61 ] Constable Mackey confirmed that the RNC’s legal counsel was contacted to discuss the circumstance of a suspect wanting medical attention, but not wanting to go because of lack of proper clothes. She also suggested that consideration was given to the option of forcing the Accused to go to hospital.

However, that option was ultimately rejected, as Constable Mackey said that it risked injury to the Accused and the officers. Rather, the plan adopted was to try to persuade the Accused to go to hospital. As a result, efforts were made by Constable Anderson and Constable Cleary to convince the Accused of the importance of going to hospital. The efforts were unsuccessful. Ultimately, the decision was made to contact the paramedics. [ 62 ] Constable Mackey’s evidence was that after the paramedics checked out the Accused, the paramedics called the doctor.

Constable Mackey had a brief conversation with the doctor, because the doctor had requested to talk to Constable Mackey about what she knew of the Accused’s drug use. [ 63 ] Constable Mackey was aware that the Accused had signed the refusal of medical treatment form; however, she was not certain as to whether the doctor had signed off. The copy of the refusal of medical consent form signed by the Accused was entered as exhibit A.M. #2. It was not signed by the doctor, and Constable Mackey agreed it appeared to have been possibly signed by only one of two of the paramedics.

However, it was her understanding that the doctor was comfortable with the refusal. [ 64 ] With respect to the Accused’s allegation of sexual assault, Constable Mackey indicated that during the investigative team’s first meeting with Constable Anderson at about 12:30 a.m., they discussed the prospect of having the Accused do a sexual assault kit. [ 65 ] Constable Mackey suggested that there was even a debate at that meeting with respect to obtaining a search warrant to get the kit done. Ultimately, a warrant was not the chosen route.

The RNC also went so far as to even prepare a consent form to be signed by the Accused, for the sexual assault kit. The form was not presented to the Accused.

It was entered in evidence as exhibit A.M. #1. [ 66 ] Constable Mackey’s evidence was that it was made clear to Constable Anderson to try to get the kit done, as it was important evidence primarily required for the homicide investigation. [ 67 ] With respect to Sergeant Rossiter’s involvement with the interview, Constable Mackey’s evidence was that Constable Anderson had hit a roadblock in the interview, and this was why Sergeant Rossiter was asked to step in.

He was requested to get further information on the timelines and the sexual assault, to encourage the Accused to go to hospital for his chest pains, and to also try to get the sexual assault kit done. Sergeant Rossiter was to also try to get the Accused to speak to a lawyer. [ 68 ] As shown in the video, the Accused made numerous requests to go to the holding cell.

With respect to these requests, Constable Mackey indicated that this was not a concern, and such is a common request for people being charged so as to get out of the interview. [ 69 ] Like the other officers who testified, Constable Mackey’s evidence was that she saw no signs of the Accused being in pain, or discomfort. She also had no concerns as to the Accused’s level of alertness, sobriety or tiredness. She acknowledged that the Accused did spend extended periods of time while in the interview room lying on the floor, under a blanket.

However, her assessment was that he did not show signs of exhaustion; and that he would readily interact. Further, Constable Mackey’s evidence was that the length of the interview was not a concern; and when it eventually became apparent that the Accused did not want to speak to Sergeant Rossiter, the interview was concluded.

[70] In cross-examination, Defence Counsel put to Constable Mackey that the Accused had, in the course of the interview,complained eight separate times of chest pain; Constable Mackey did not disagree with this assertion. Further, she did not disagree withthe assertion that the Accused had asked four times to see a doctor before Constable Anderson suggested it could be arranged. Further,she did not disagree that he had asked two more times for a doctor before the paramedics arrived.

She also did not disagree that theAccused had asked to go to a holding cell eighteen times in the course of the interview; and that nine times he had asked to get alternateclothes to go to hospital. ISSUE [71] The issue to be determined is whether the Accused’s statement was given voluntarily. ANALYSIS [72] With respect to the statements made by the Accused in the course of the interview, the Crown bears the onus of satisfying theCourt that the statements were made voluntarily. The standard of proof is beyond a reasonable doubt. [73] As submitted by Counsel, the leading case on voluntariness is R. v.

Oickle, 2000 SCC 38. The analysis to be undertakenrequires consideration of whether there were any threats or promises (generally referred to as inducements); whether there wasoppression; and whether the Accused had an operating mind. [74] Oickle suggests that all these three factors are to be considered in an analysis of voluntariness; and the analysis is to becontextual. The Supreme Court of Canada underscored the need for a contextual analysis when they stated at paragraph 71 of Oickle, asfollows: 71 Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one.

In the past, courtshave excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable policeconduct 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 asto the confession's voluntariness, taking into account all the aspects of the rule discussed above.

Therefore a relatively minor inducement,such as a tissue to wipe one's nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep,heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, supra. On the other hand, where thesuspect is treated properly, it will take a stronger inducement to render the confession involuntary.

If a trial court properly considers allthe relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for "somepalpable and overriding error which affected [the trial judge's] assessment of the facts": Schwartz v. Canada, (SCC),[1996] 1 S.C.R. 254, at p. 279 (quoting Stein v. The Ship "Kathy K", (SCC), [1976] 2 S.C.R. 802, at p. 808) (emphasisin Schwartz). [75] The use of police trickery is a fourth consideration with respect to an analysis of voluntariness. However, unlike the other threefactors, it is a distinct inquiry (Oickle, at paragraph 65).

It is not disputed by all Counsel that there was no suggestion of police trickeryin the case before me. Operating Mind [76] With respect to the factor of the operating mind, the threshold is very low. I refer to paragraph 63 of Oickle, as follows: 63 This Court recently addressed this aspect of the confessions rule in Whittle, supra, and I need not repeat that exercise here.

Brieflystated, Sopinka J. explained that the operating mind requirement "does not imply a higher degree of awareness than knowledge of whatthe accused is saying and that he is saying it to police officers who can use it to his detriment" (p. 936). I agree … [77] After considering all the evidence and the submissions of Counsel, I find that there was nothing to suggest that the Accusedlacked the required awareness of knowing what he was saying; and that he was saying it to police officers who could “use it to hisdetriment”.

Based on the evidence, I am satisfied beyond a reasonable doubt that the Accused had the required operating mindthroughout the interview. Inducements [78] With respect to the factor of inducements, the inquiry is whether there were any inducements offered by the police to theAccused; and if so, whether the presence of such raises a reasonable doubt as to voluntariness of the statement made by the Accused inhis interview with police. [79] In Oickle at paragraph 57, the Supreme Court of Canada clarified that the police are not precluded from offering inducements.

The offering of an inducement only becomes inappropriate if the inducement either on its own, or in combination with other factors,raises a reasonable doubt as to whether the will of an accused was overborne. At paragraph 57 they stated this, as follows: 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 suspectthat it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or incombination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.

On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212, particularly apt: Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated.

If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the [page38] confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.

The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise. [ 80 ] As to whether there was a “quid pro quo” offered by the police in this case, it is not disputed that there were no express threats or promises by the police. Rather, the Defence submitted that the “quid pro quo” was implicit.

Specifically, the Defence submitted that once the Accused sought medical attention, the police created the implication that in order for him to get medical attention, he had to provide sufficient information about the events of the night before. In other words, the Defence suggested that the Accused was induced to provide information about what happened, in exchange for medical attention. [ 81 ] On this point, the Defence referred to the first request by the Accused for a doctor, which was made shortly after midnight, at about 12:07 a.m. on the video.

To recap, when the Accused first requested to see a doctor, Constable Anderson responded by asking him why, followed by: “And you know what I do want to talk to you about what happened... ”. Defence Counsel submitted that in the context of the injuries of which the Accused was complaining, Constable Anderson’s response was essentially a request for information regarding the events of the evening before, which was under investigation. [ 82 ] Crown Counsel suggested that there was a pause between Constable Anderson asking why, and the comment: “And you know I do want to talk to you about what happened…”.

The Crown suggested that the Accused did not respond to the “why”. Instead, he proceeded to voluntarily provide information as to the events in question. [ 83 ] After carefully reviewing the audio recording, and as already stated, I do not agree that there was a pause of any appreciable significance in Constable Anderson’s response to the Accused’s request to see a doctor. Rather, I find that Constable Anderson deflected the Accused’s request to see a doctor.

This finding is based not only on Constable Anderson’s response, but also on her continued questioning of the Accused without addressing his request. [ 84 ] Further, I agree with Defence Counsel’s suggestion that Constable Anderson’s response implicitly linked the prospect of medical attention, with the Accused providing information on how the Accused got the injuries. This, in turn, would require the Accused to provide information on the evening of the events in question.

Indeed, his immediate response included reference to his being jabbed with a needle by his brother, a concern as to hepatitis C, and that he had been smoking crack with his brother for a couple of weeks. [ 85 ] The interview continued, and the Accused’s second request to see a doctor was made at about 12:26 a.m. on the video. By that time, the Accused had already informed Constable Anderson that he had been hit by a pipe, and sexually assaulted by his brother.

After his second request to see a doctor, and as submitted by Defence Counsel, Constable Anderson again deflected the request by asking about the nature of the Accused’s injuries. The Accused then informed Constable Anderson of his bleeding, as he said “I think my ass is bleeding”. Constable Anderson then returned the conversation to the events of the night before. [ 86 ] Then at about 12:29 a.m. on the video, the Accused requested a cigarette, and also made his third request to see a doctor.

Again, Constable Anderson deflected the Accused’s request for a doctor when she responded: “…well I guess I’ll, we’ll talk about that…”. She stepped out of the room, and the Accused was taken for a cigarette. [ 87 ] Defence Counsel suggested that based on these above described exchanges, the clear implication was that if the Accused wanted to see a doctor, he had to provide sufficient information that medical attention was necessary.

In other words, he was induced to provide information about the events of the previous evening in order to access medical attention. [ 88 ] The Defence further submitted that from the point in the interview where the police ultimately did agree to bring the Accused to hospital, the police then implied that the Accused’s access to medical assistance was tied to his getting a sexual assault kit done, and assisting with the investigation.

When Constable Anderson, and then Sergeant Rossiter, spoke to the Accused about going to hospital, they primarily focused on the subject of his participating in the sexual assault kit which would have assisted the police investigation; their secondary focus was on his getting medical treatment. [ 89 ] Defence Counsel further noted that when there was a discussion with the Accused regarding his having a cigarette, there was emphasis on the fact that the cigarette was not an inducement; however, that same explicit language was not used when discussing his access to medical treatment. [ 90 ] By contrast, the Crown submitted that the police were not making any link between the prospect of the Accused obtaining medical treatment, and his continuing with the interview.

Further, the Crown suggested that the Accused provided information freely and voluntarily, and without prompting, even after he asked to speak to a doctor. [ 91 ] The Crown pointed to the part of the interview, after the Accused had been taken out for a cigarette, which was after his third

request for medical attention. Constable Anderson had come back to the interview room at around 1:10 a.m., according to the video. She told the Accused that with respect to his request to see a doctor that they could make it happen. She then asked how bad the bleeding was, and how long he had been bleeding. She then asked if “it’s something that can wait a little bit until we’re finished talking?” The Accused agreed to wait.

The Crown submitted that he continued to provide information in a calm manner, with no signs of distress. [ 92 ] The Crown further pointed to the part of the interview where the Accused asked Constable Anderson whether she wanted to hear everything. The Crown suggested this statement also supported a finding of voluntariness. [ 93 ] In addition, the Crown submitted that when the Accused first asked to see a doctor for chest pains, Constable Anderson did ask about the symptoms; and the Accused was not pressed by her to continue talking, but yet he did continue talking.

The Crown also noted that at no point did Constable Anderson suggest that seeing a doctor was contingent on his talking about the incident. [ 94 ] On this latter point, in my view, when the Accused first complained of chest pains (at about 1:44 a.m. on the video), and again requested medical attention, Constable Anderson again deflected the request; and she proceeded to try to elicit more information on the night in question. She said: “And you know what I’m sorry for cutting ya off. I do want to hear”. She then continued to question the Accused for about 15 more minutes.

Then, at around 2:02 a.m., over two hours into the interview, the Accused again complained of chest pains, and suggested he should see a doctor. Constable Anderson again initially deflected the request; and she continued to ask about the injuries, referring to what had happened the evening before. Finally, she exited the room to speak to the investigative team.

She returned at about 2:13 a.m. to indicate to the Accused that he would be checked out by a doctor. [ 95 ] Further, the responses and demeanor of the Accused (as referenced by the Crown) must be considered in the context of the entire circumstances, including the entire interview. [ 96 ] On this point, I have particularly considered that very early in the interview Constable Anderson was informed by the Accused that he had allegedly been jabbed with a needle; that he had been possibly exposed to hepatitis C; that he had been sexually assaulted; that he was bleeding possibly from the alleged sexual assault; that he had been hit with a pipe; and that he had been on hard drugs for a period of time prior to arrest.

If these allegations were true, then the Accused’s injuries were, in my view, of a nature that should have been attended to with medical expertise. Unlike minor cuts or abrasions, the gravity, nature and extent of the Accused’s alleged injuries would not have been readily apparent to the officer, and therefore required medical consideration. Consequently, I find that these medical concerns raised by the Accused should have been treated as serious concerns.

The prompt provision of medical attention to address these medical concerns should have been the priority of the police; even though the Accused did not appear to be in distress, and was responding to questions.

Instead, the police pressed on with the interview. [ 97 ] Indeed the information regarding the Accused being jabbed with a needle, in conjunction with the prospect of hepatitis C, was serious enough for the police to stop the interview, and focus on responding to the Accused’s initial request for a doctor. [ 98 ] However, rather than deal with the Accused’s medical requests, and rather than deal with the pressing medical needs alleged by the Accused, Constable Anderson clearly deflected the Accused’s first three earlier requests to see a doctor, and then his fourth later request respecting chest pains.

Instead, she encouraged the Accused to speak about what had happened, and how the injuries had been obtained.

The Accused was not informed of the decision to provide medical attention until over two hours from the time he first requested a doctor. [ 99 ] Considering the entire circumstances, the whole of the evidence, and particularly the deflective responses of Constable Anderson along with her continued questioning, I agree with Defence Counsel and find that there was indeed an implied inducement offered by police to the Accused during the interview; being a quid pro quo of medical attention in exchange for information about the injuries, and the events of the night before. [ 100 ] I also find that it would not be unreasonable to characterize the police officers’ comments regarding the sexual assault kit as a further inducement of medical attention in exchange for assisting the investigation by participating in the kit; particularly when such comments are considered in light of the entire circumstances, and the above described implied quid pro quo of medical attention in exchange for information. [ 101 ] Having said this, I recognize that there was no confirmation in the evidence that the Accused was actually in need of medical attention.

There was no evidence as to what happened the next day, or if any of his allegations and injuries were confirmed through medical attention, or otherwise. However, the onus was not on the Accused to testify and give evidence. The onus was on the Crown to establish voluntariness. [ 102 ] Ultimately, the Accused refused medical attention due to his having to wear a Tyvek suit to hospital. The Accused’s comments in this regard suggest that his refusal of treatment was an attempt by him to preserve his dignity.

Such does not lead to the conclusion that medical attention was neither needed, nor required. [ 103 ] Further, in the absence of evidence suggesting otherwise, it would not be reasonable to assume the Accused’s demeanor, and absence of distress, establish his allegations of injuries were without merit. [ 104 ] In

summary, based on the whole of the evidence, I find that the police failed to appropriately respond to the medical concerns raised by the Accused early in the interview. The nature of Constable Anderson’s responses to the Accused’s requests to see a doctor, and her persistence in questioning him despite his requests, contribute to the finding that a quid pro quo was offered by the police. In making these findings, I have considered all the evidence, including the interview. I also carefully considered the submissions of Counsel, including the excerpts from the interview pointed out by the Crown.

In my view, those excerpts from the interview do not detract from my finding of a quid pro quo . [ 105 ] Moreover, it is reasonable to suggest that if the Accused’s allegations were true, then he was very likely in need of medical attention; and the quid pro quo offered by the police may have been attractive enough to have overborne the will of the Accused.

However, at this point in the analysis, I am not prepared to make a finding that the inducement was strong enough, on its own, to raise areasonable doubt as to whether the will of the Accused was overborne (see paragraph 57 of Oickle). As instructed by Oickle, theanalysis is contextual; and inducements are to be considered in combination with the other factors. Therefore, to fully assessvoluntariness, it is necessary to also consider whether there was an atmosphere of oppression.

Oppression [106] At paragraphs 58 to 60 of Oickle, the Supreme Court of Canada described how an atmosphere of oppression may be created. They stated, as follows: 58 There was much debate among the parties, interveners, and courts below over the relevance of "oppression" to the confessionsrule. Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be nosurprise that the suspect would make a stress-compliant confession to escape those conditions.

Alternately, oppressive circumstancescould overbear the suspect's will to the point that he or she comes to doubt his or her own memory, believes the relentless accusationsmade by the police, and gives an induced confession. 59 A compelling example of oppression comes from the Ontario Court of Appeal's recent decision in R. v. Hoilett (1999), (ON CA), 136 C.C.C. (3d) 449. The accused, charged with sexual assault, was arrested at 11:25 p.m. while under theinfluence of crack cocaine and alcohol. After two hours in a cell, two officers removed his clothes for forensic testing.

He was left nakedin a cold cell containing only a metal bunk to sit on. The bunk was so cold he had to stand up. One and one-half hours later, he wasprovided with some light clothes, but no underwear and ill-fitting shoes. Shortly thereafter, at about 3:00 a.m., he was awakened for thepurpose of interviewing. In the course of the interrogation, the accused nodded off to sleep at least five times. [page39] He requestedwarmer clothes and a tissue to wipe his nose, both of which were refused.

While he admitted knowing that he did not have to talk, andthat the officers had made no explicit threats or promises, he hoped that if he talked to the police they would give him some warmclothes and cease the interrogation. 60 Under these circumstances, it is no surprise that the Court of Appeal concluded the statement was involuntary. Under inhumaneconditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions. Such a confession is notvoluntary. For similar examples of oppressive circumstances, see R. v. Owen (1983), (NS CA), 4 C.C.C. (3d) 538(N.S.S.C., App.

Div.); R. v. Serack, (BC SC), [1974] 2 W.W.R. 377 (B.C.S.C.). Without trying to indicate all thefactors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep, or medicalattention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time. [107] Defence Counsel submitted that in this case, factors creating an atmosphere of oppression were deprivation of clothing,deprivation of sleep, deprivation of medical attention, and deprivation of heat.

Deprivation of heat was identified as a further factor toconsider in R. v. Cairney, 2009 ABQB 123, at paragraph 35. [108] At the outset, I find that the refusal by police to provide the Accused with alternate clothing to attend hospital was not, in thecircumstances of this case, a contributing factor to an atmosphere of oppression. To recap, as stated by Constable Mackey, theAccused’s request for clothing in order to get medical attention, was a “curveball”.

The Accused indicated that he wanted to see adoctor, but that he also did not want to go to hospital in the white suit, because he felt he would look like a “skeet”. Clothes wereapparently not available at headquarters, and the evidence confirmed that no efforts were made to locate clothes for him. [109] Defence Counsel suggested the Tyvek suit worn by the Accused contributed to an atmosphere of oppression. Defence Counselreferred to the case of R. v. Di Long Feng, 2015 BCSC 455, which commented on the practice of putting detainees in the paper whitesuits as possibly contributing to an atmosphere of oppression.

The British Columbia Supreme Court stated this, at paragraph 146, asfollows: 146 The practice of putting detainees in these suits when their clothing is seized is, in my view, one that should be avoided. Thepractice denies the basic dignity of the detainee and, depending on the circumstances of the detention, may contribute to an oppressiveatmosphere.

Police detachments routinely expect to house suspects whose clothing is seized, and they ought to have at hand at least thekind of clothing provided to inmates in long-term incarceration. [110] I agree that there may be certain circumstances when requiring a suspect to wear the white Tyvek suit could possibly contribute toan oppressive atmosphere. Practically speaking, however, the police cannot be expected to maintain a wardrobe to suit the requests ofpersons in custody.

It was not unreasonable for the police to seize the Accused’s clothes in this case; and it is standard procedure when asuspect’s clothing forms part of an investigation. The Accused’s request for alternate clothing was understandable, and appeared to bemotivated by his wanting to maintain his dignity. However, as Constable Cleary explained to the Accused, he could have been separatedfrom the general waiting area at the hospital.

I find that the deprivation of clothing did not, in this matter, contribute to, or create, anatmosphere of oppression. [111] Further, with respect to deprivation of heat, I do not agree with the Defence that there was a deprivation of heat contributing to anatmosphere of oppression. Rather, I agree with the Crown that the police did their best to accommodate the Accused’s complaints ofbeing cold. They provided him with a second Tyvek suit, a blanket, and turned up the heat in the room.

However, in light of the medicalconcerns raised by the Accused, the fact that the Accused was complaining of the cold should have been considered by the police as apossible red flag, which supported his request to see a doctor. [112] With respect to deprivation of sleep, the Defence referred to the fact that the Accused was arrested at 8:30 p.m., but not moved to

a holding cell until just after 4:30 a.m. There were significant periods of time in the video where the Accused was lying on the floor, by the heater, and underneath a blanket. Further, as submitted by the Defence, the opportunity to rest could hardly be said to have been readily available in light of the conditions which included a hard floor, lights on, and regular interruptions. [ 113 ] While I agree that the Accused did, at times, appear tired in the video, I do not consider deprivation of sleep to be a significant consideration in this case.

As was submitted by the Crown, the Accused was often easily engaged in conversation by the officers. Rather, what is significant is that the police continued with the interview over a period of more than four hours after being apprised of the potential injuries, which required medical attention. [ 114 ] With respect to deprivation of medical attention, Defence Counsel suggested there was nothing in the circumstances to suggest that there was any urgency in obtaining the Accused’s statement. He had been arrested, and therefore reasonable and probable grounds had already been formulated by the police.

Consequently, there was no reason to prioritize the statement over the provision of medical attention. [ 115 ] Granted, as indicated by Constable Mackey, it was understandable that police wanted to obtain the statement from the Accused as close to the event as possible.

However, in the circumstances of this case, given the nature of the Accused’s alleged injuries, I agree that it was incumbent upon police to prioritize the provision of medical attention over the taking of the Accused’s statement. [ 116 ] To elaborate, and as already discussed, I agree with Defence Counsel’s submission that Constable Anderson inappropriately deflected the Accused’s initial requests for medical attention.

Upon being first informed of the Accused’s allegation of being jabbed with a needle, and the prospect of exposure to hepatitis C, the police should have stopped the interview, and offered to facilitate medical attention for the Accused by offering to take him to hospital at that time. That would have been the appropriate response. The need for medical attention was then heightened with the subsequent information that the Accused had allegedly been sexually assaulted, that he was bleeding presumably due to the assault, and that he had been hit with a pipe.

These were all serious medical concerns raised by the Accused which should have been promptly and appropriately responded to by police; by offering and facilitating medical attention for the Accused at the time the concerns were raised. [ 117 ] Further, Constable Anderson had observed the red mark on the Accused’s arm, which was consistent with his allegation he had been jabbed with a needle. The police also observed the fact that the Accused had on two Tyvek suits, and a blanket, in a room which Constable Anderson considered to be warm.

Despite these observations, and the medical concerns raised by the Accused, Constable Anderson, and the other officers who testified, had no concerns about the Accused’s ability to give a statement partly because he appeared to not be in any distress. Rather, the interview continued even though the Accused had made requests to see a doctor, and had raised numerous serious medical concerns. [ 118 ] Indeed, the evidence of Constable Mackey was that it is the protocol of the police to deal with requests by persons in custody to see a doctor.

Yet, even when the Accused first complained of chest pains much later in the interview, and again requested to see a doctor, Constable Anderson still had no concerns about pressing on with her questions. [ 119 ] Further on this point, Constable Mackey suggested that accused persons often complain of chest pains to stop an interview. However, along with the numerous other medical concerns raised early on by the Accused, as well as his drug use, it was not reasonable for the police to not respond to the Accused’s initial complaints of chest pains.

Instead, the Accused’s request for medical attention was not responded to until he vigorously and more persistently again complained of chest pains. This was more than two hours after the interview started. [ 120 ] With respect to the Accused not appearing in distress regarding his medical concerns, I note that the Accused did not appear to be in any distress when he was requesting a cigarette; yet, the police went to efforts to locate such, and satisfy his request.

The police also repeatedly inquired as to whether the Accused wanted food or drink, yet there was nothing to suggest he was in distress due to lack of food or water.

It was not logical for the police to not respond to the Accused’s request to see a doctor for the serious medical concerns he described, simply because he did not appear to be in distress. [ 121 ] After considering all the evidence and submissions, I find that an atmosphere of oppression was created by the police conduct of depriving the Accused of timely medical treatment; specifically, by the failure of police to appropriately respond to the Accused’s initial requests for a doctor.

The atmosphere of oppression continued, and was exacerbated by the subsequent failure of police to appropriately respond to the Accused’s initial complaints of chest pains. [ 122 ] For clarity, I add that this finding of oppression is not diminished by the fact that at one point in the interview (at around 1:10 a.m.) the Accused agreed to hold off on seeing a doctor. At that point in the interview, the Accused’s requests to see a doctor had already been deflected by Constable Anderson on three earlier occasions.

Considering the medical concerns expressed by the Accused, in my view Constable Anderson contributed to the already established atmosphere of oppression by asking the Accused if he could wait a bit on seeing a doctor, until they were finished talking. [ 123 ] Having said this, I recognize and have also considered that the police did eventually strongly encourage the Accused to attend hospital. However, in my view that response was far too late. [ 124 ] I have also considered that the Accused ultimately signed the refusal of medical treatment form.

However, from the video, it was abundantly clear that the Accused still wanted to see a doctor, and that he was willing to go to the hospital and get treatment, if he was given clothes. This was apparent up until near the end of the interview.

In the exchange with Sergeant Rossiter, at about 4:28 a.m. on the video, the Accused continued to communicate his willingness to attend hospital in alternate clothing, and he indicated that he wanted to be tested for hepatitis C. [ 125 ] Further, I have already found that the Accused’s refusal to attend hospital in the Tyvek suit does not logically lead to the conclusion that he must not have been in need of medical treatment. As already stated, if the medical issues and allegations he raised early in the interview were true, then he needed medical attention, despite his refusal.

Indeed, the paramedics suggested that a cardiac event could not be ruled out without his attending hospital for a blood test. Yet, after the paramedics left, the police continued to press

on with questions, and brought in Sergeant Rossiter for the purpose of furthering the interview, and obtaining more information. [126] As well, in my view, the persistence by the police in linking the Accused’s attendance at hospital with his participation in a sexualassault kit, also contributed to the atmosphere of oppression. The Accused had made it clear that he did not want the violation of thesexual assault kit.

Yet the police persisted in encouraging the completion of the kit, as such would further their investigation. [127] The Crown correctly noted that a finding of oppressive conduct, or oppressive circumstances, in and of themselves, do notautomatically lead to the conclusion that a statement is inadmissible on the basis of lack of voluntariness. Rather, the Crown again askedthe Court to consider the Accused’s demeanor throughout the interview.

The Crown submitted that the Accused appeared to be a personin control; he was making demands, and he displayed the necessary self-confidence to withstand an atmosphere of oppression, if such isfound to exist. [128] In support of this submission, the Crown referred the Court to paragraph 24 of R. v. Hoilett (1999), (ON CA),136 C.C.C. (3d) 449 (Ont. C.A.), where the Ontario Court of Appeal stated, as follows: 24 Oppressive conduct by the police, in and of itself, will not in every case render a statement of an accused inadmissible asinvoluntary.

There may be circumstances where an accused person has the self-confidence to withstand the more subtle intimidation thatis communicated by the police through an atmosphere of oppression. Or an accused may have his or her own reasons for believing that itis in their interests to speak to the police so that oppressive police conduct may not have the effect of making a statement involuntary. [129] I agree the Accused did appear to be in control of his emotions, and he only occasionally raised his voice and became irate.

However, based on the whole of the evidence and in the circumstances of this case, I am not persuaded that the Accused had enoughself-confidence to withstand intimidation. A number of other factors, such as drug use or other health concerns, could have impacted theAccused’s demeanor. There is insufficient evidence to presume what should have been the demeanor of a person who experienced whatthe Accused alleged he experienced prior to arrest.

SUMMARY [130] In

summary, as instructed in Oickle, I have considered together the factors of operating mind, inducements and oppression. Afterconsidering the whole of the evidence, and the submissions of Counsel, I have found that the Accused had an operating mind; but thatthere was an atmosphere of opp

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