R. v. Henoche, 2019 NLSC 61

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Henoche , 2019 NLSC 61 Date : March 14, 2019 Docket : 201808G0006 Her Majesty The Queen v. Jonathan Henoche Before: Justice George L. Murphy Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: January 22 – 23, 2019 and March 1, 2019

Summary: A voir dire was held to determine the admissibility at trial of certain oral statements made by the Accused to the Royal Canadian Mounted Police. The only issue was whether the Accused had an operating mind at the time the statements were made. The Court found that the Crown had proven beyond a reasonable doubt that the Accused did have an operating mind at the time the statements were made and thus the statements were voluntary and could be admitted at trial. Appearances: Jennifer E. Standen Appearing on behalf of Her Majesty The

Queen Robert B. Hoskins Appearing on behalf of Jonathan Henoche Authorities Cited: CASES CONSIDERED: R. v. Oickle, 2000 SCC 38; and R. v. Whittle (1994), (SCC), 92 C.C.C. (3d) 11, 116 D.L.R.(4th) 416 (S.C.C.). STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] The Accused, Jonathan Henoche (the “Accused”), is charged with the offence commonly referred to as arson under section434 of the Criminal Code, R.S.C. 1985, c. C-46 and a related offence of a breach of probation under

section 733.1(1) of the CriminalCode. [2] At the upcoming trial of the Accused, the Crown seeks to introduce certain statements made by him as follows: a. oral audio recorded statements made by the Accused to OCC operator Sharon Hobbs on August 19, 2016; b. oral statements made by the Accused to Constable Danny Earle and Constable Joshua Seaward on August 19, 2016; and c. an audio and video recorded statement given by the Accused to Sergeant Francis Flynn on August 19, 2016. [3] A pre-trial voir dire was held to determine whether these statements were admissible and this is my decision on that voir dire. the law [4] The burden is on the Crown to show beyond a reasonable doubt that the statements were voluntary.

Stated another way, thestatements will not be admissible if it is determined they were made under circumstances that raise a reasonable doubt as to voluntariness(R. v. Oickle, 2000 SCC 38). The Supreme Court of Canada in Oickle outlined the legal analysis to be carried out in assessing thevoluntariness of statements made by an accused to persons in authority. The analysis requires a consideration of the following factors:threats or promises, oppression, the lack of an operating mind, and police trickery.

The Court in Oickle made it clear that the analysis iscontextual in nature and a judge must be cognizant of the entire circumstances and the particularities of the accused who made thestatement. [5] In this case, the Defence concedes that there were no threats or promises, no oppression, and no police trickery. The onlyissue in this case is that of operating mind. In R. v.

Whittle (1994), (SCC), 92 C.C.C. (3d) 11, 116 D.L.R. (4th) 416(S.C.C.), Sopinka, J. for the majority said of the operating mind test at page 936: In my opinion in the circumstances this does not imply a higher degree of awareness than knowledge of what the accused is saying andthat he is saying it to police officers who can use it to his detriment. [6] Later at page 939, he said: The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she issaying and to comprehend that the evidence may be used in proceedings against the accused.

Indeed it would be hard to imagine what anoperating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an activechoice, the relevant test is: Did the accused possess an operating mind?

It goes no further and no inquiry is necessary as to whether theaccused is capable of making a good or wise choice or one that is in his or her interest. [7] Therefore, the sole question for me to decide is whether the Crown has proven beyond a reasonable doubt that the Accusedhad an operating mind when he gave the statements under consideration. position of the parties

[ 8 ] The Defence submits that the Accused did not have the requisite cognitive ability to satisfy the operating mind component of the voluntariness test for the entire period of his interaction with the Royal Canadian Mounted Police (“RCMP”) on August 19, 2016. The submission was based on the argument that the statements were the product of a troubled mind resulting from the background of the Accused and his personal circumstances, including in particular his addictions and mental health issues.

The Defence also referred to the possibility that the fact the Accused was not taking certain prescribed anti-psychotic drugs before he came into custody and while he was in custody could have impacted whether he had an operating mind.

For these reasons, the Defence argued the Crown had not met its burden. [ 9 ] The Crown argued that a review of the entirety of the evidence establishes beyond a reasonable doubt that the Accused did in fact have an operating mind at the time the statements were made. evidence [ 10 ] Defence counsel in his submissions referred to the Accused as a lost soul and it is difficult to disagree with this characterization. The Accused has a long history of substance abuse, addictions, and mental health issues which he described for the Court.

He was born and raised in Nain but moved to Happy Valley-Goose Bay because he was homeless in Nain. At the time of his arrest in August of 2016 he was living in supportive housing in Happy Valley-Goose Bay. His life has been impacted by the suicide of many family members and loved ones, including his mother and girlfriend. The Accused himself testified that he has had suicidal tendencies since the age of 12 or 13 and since being incarcerated at Her Majesty’s Penitentiary he has been placed in the unit for inmates who are suicidal some 30 to 40 times.

The Accused also testified that he hears voices, smells dead people, and sees black figures. He said this has been happening since he was 13 years old and happens regularly with the most recent occasion being the night before he testified in court on the pre-trial hearing. The Accused testified that he could not recall speaking with the RCMP on August 19, 2016. I will address more fully the evidence of the Accused about what he recalls from his interaction with the RCMP on that date later in the Analysis

section of this Judgment. The Accused was the only witness called by the Defence. [ 11 ] As for the evidence presented by the Crown, I heard from three witnesses, namely Sergeant Francis Flynn and Constables Danny Earle and Joshua Seaward. There was also introduced into evidence an audio recording and a transcript of same of a telephone call the Accused made to the RCMP on August 19, 2016.

As well, there was an audio and video recording and transcript of same of a statement the Accused gave to Sergeant Flynn on August 19, 2016. [ 12 ] The arrest of the Accused for the subject charges came about in a somewhat unusual manner. In the early morning of August 19, 2016, the Accused called the RCMP in Happy Valley-Goose Bay. His call was directed to the communication centre for the RCMP (referred to as the OCC) and he spoke with an OCC operator there named Sharon Hobbs. The call was recorded. The Accused first asked to speak to Kenny Maher and then Mark Blackmore.

Both were officers the Accused knew from previous dealings with the RCMP. The purpose of the call by the Accused was to ask the RCMP to do an investigation on him. He told the OCC operator that he had burned down a house on Montagnais Street in Happy Valley-Goose Bay in the spring of that year. [ 13 ] The OCC operator proceeded to connect the Accused with Constable Danny Earle who was on duty that night in Happy Valley-Goose Bay.

Constable Earle spoke to the Accused who he had known for several years and the Accused told him what he had done and that he wanted Constable Earle to meet him at 4 Mesher Street. [ 14 ] Constable Earle and Constable Seaward then proceeded to 4 Mesher Street where the Accused was waiting for them on the street. Both police officers were in uniform and they travelled there in a marked RCMP vehicle. The officers were not certain if they travelled there in one police vehicle or separate vehicles but there is no doubt that at least one marked police vehicle showed up at the scene.

The Accused was arrested and read his rights and police caution. He then proceeded to again tell the police what he had done. The Accused was taken back and placed in the holding cells at the RCMP detachment in Happy Valley-Goose Bay. [ 15 ] The following morning, Sergeant Flynn, who at the time was a member of the Serious Crime Unit at the RCMP detachment in Happy Valley-Goose Bay, took over the matter. He went to the holding cells where the Accused was being held and spoke to the Accused.

He then took him to an interview room where the Accused gave a video and audio recorded statement in which he confessed to breaking into and setting fire to the house of John Neville on Montagnais Street. analysis [ 16 ] As previously noted, the Accused in his testimony on the voir dire claimed that he could not recall speaking to the RCMP on August 19, 2016. He also said he could not recall making the telephone call to the RCMP and speaking to the OCC operator. Further, he said he did not know why he called the RCMP, what he told them, or that what he said could be used against him at a trial.

The Accused said he was not taking his prescribed medication for his mental health issues at the time and had been using cocaine and marijuana prior to calling the police. In short, the Accused claimed he could not recall any of the interactions he had with police on August 19, 2016. When asked why he told the RCMP he had broken into John Neville’s house and started the fire, his response was that he was hearing voices.

He also said he did not understand that what he said could be used against him. [ 17 ] Despite the claims of the Accused about not remembering any of his discussions with the RCMP on August 19, 2016, he was able to recall other details of the time period leading up to and after his arrest. For example, he testified he could remember using marijuana and cocaine the evening he called the RCMP and that he had stopped prior to making that call. He remembered where he was using the drugs, testifying it was at his home at 31A Mesher Street.

He also recalled that he was using in his room and that his roommate, Christopher, was home but his roommate, William, was not. He remembered as well in relation to the call he made to the RCMP that he asked the worker at his home for the telephone number. The Accused also agreed on cross-examination that he knew he was asking to speak to a RCMP officer when he specifically asked to speak to Kenny Maher and then Mark Blackmore. [ 18 ] The Accused also remembered being in the cell on the night in question at the RCMP detachment and the condition of the cell.

He recalled not being able to sleep because the lights were on and that he had a blanket but no cellmate. He remembered being offered breakfast and that when he woke up there was nobody else in the cell. The Accused also remembered getting his medications later in the day after he woke up. It was suggested to the Accused on cross-examination that he remembered lots of details of the evening in question

but did not remember giving or making any of the statements. The Accused agreed this was the case. [ 19 ] The Accused also testified that he had not been taking his prescribed medication for his mental health issues since January or February of 2016 prior to when he was released from custody at the Labrador Correctional Centre for an unrelated matter. In direct examination he testified that when he was not taking one particular medication prescribed to him, namely Haldol, he would go crazy or mental.

He was asked on cross-examination how someone would know when he was not taking his medications and his initial response was that he acted weird and talked to himself. Later while being cross-examined, the Accused was asked how he would have appeared at the time given he was not taking his prescribed mental health medications for a long time and his response was “normal” and that you would notice nothing about him.

The Accused was cross-examined about this inconsistency but could offer no explanation for his inconsistent response. [ 20 ] All three of the police officers who interacted with the Accused on August 19, 2016 testified that they noticed nothing unusual about him and had no concerns during their interactions about him understanding what was going on.

All of them described the Accused in a similar manner as being calm and cooperative and wanting to tell them what happened because he “felt bad” and “wanted to get it off his chest”. [ 21 ] The testimony of the officers is consistent with what I saw and heard in the audio and video recorded statement given by the Accused to Sergeant Flynn. Similarly, it is consistent with the audio recording of the initial call made by the Accused to the RCMP when he spoke with the OCC operator. The Accused appeared and sounded very calm and cooperative and clearly wanted to tell the RCMP what he had done.

I saw nothing unusual about the Accused to indicate in any way that he was not fully understanding what he was saying and that what he was saying might be used against him. [ 22 ] I note as well that when the Accused made the initial call to the RCMP he asked for two specific officers, first Kenny Maher and then Mark Blackmore, both of whom he knew.

He was able to tell the OCC operator what he was calling about and what he wanted. [ 23 ] I do not believe the testimony of the Accused that he does not recall any of his interactions with the police relative to the statements he made confessing to the breaking into and burning of John Neville’s house. I simply find it quite improbable that the Accused would remember so many other details of the time period and events in question but nothing about his call to the RCMP or subsequent interactions with Constable Earle and Constable Seaward or Sergeant Flynn.

Further, the testimony of the Accused does not raise a reasonable doubt as to whether he had an operating mind at the time the statements in question were made. There is no doubt in my mind that the Accused knew he was calling the RCMP and knew he was speaking with the RCMP. I also have no doubt that the Accused knew what he was saying and that what he was saying could be used against him. conclusion and disposition [ 24 ] The Crown has established beyond a reasonable doubt that the statements made by the Accused were the product of an operating mind and thus voluntary.

As a result, the statements shall be admissible at the trial of the Accused. _____________________________ George L. Murphy Justice