R. v. Pope, 2023 NLSC 141

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Pope , 2023 NLSC 141 Date : October 26, 2023 Docket : 201801G5227 His Majesty the King v. Craig Pope 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 Glen L.C. Noel Oral Reasons for Judgment Place of Hearing: St.

John’s, Newfoundland and Labrador Dates of Hearing: September 14, 25, 26, 27 and October 17 and 19, 2023 Date of Oral Judgment: October 26, 2023

Summary: The Accused made statements to the police after his initial detention and subsequent arrest for second-degree murder. The Crown applied seeking an admissibility ruling on the voluntariness of the statements.

HELD: The statements were voluntary and the Crown is permitted to use the statements for the intended purpose of cross-examining theAccused, if he testifies at trial. Appearances: Shawn I. Patten and Kathleen O'Reilly Appearing on behalf of the Crown Mark J. Gruchy and Kathy P. Moulton Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R v. Tessier, 2022 SCC 35; R. v. Spencer, 2007 SCC 11; R. v. Oickle, 2000 SCC 38; R. v. Singh, 2007 SCC 48;R. v. Kelly, 2019 NLCA 23; R. v. Bools, 2016 ONCA 554; R. v. Roberts, 2016 NLTD(G) 19; R. v.

Lavallee, 2018 ABCA 328, leave toappeal refused [2019] S.C.C.A. No. 41; R. v. I. (L.R.), (SCC), [1993] 4 S.C.R. 504; R. v. G. (B.), (SCC), [1999] 2 S.C.R. 475; R. v. McGregor, 2020 ONSC 4802; R. v. Lambert, 2018 NLCA 39; R v. Reid, 2013 NLTD(G) 64; R. v.Viner, 2010 MBQB 306; R. v. Garnier, 2017 NSSC 339; R. v. Garnier, 2020 NSCA 52; R. v. Lavallee, 2012 ONSC 2623; R. v. Payeur,2005 BCPC 155; R. v. Bharwani, 2017 ONSC 649; R. v.

Castellano, 2023 ONCA 45 REASONS FOR JUDGMENT Noel, J.: INTRODUCTION [1] The Accused, Craig Pope is charged with the second-degree murder of David Jonathan Collins on 7 September 2017 at St.John’s, NL. Mr. Pope’s trial by Judge and Jury is to commence on 14 November 2023. [2] This is my ruling on the Crown’s pre-trial application to have statements Mr. Pope made to members of the RoyalNewfoundland Constabulary (“RNC”) declared admissible for the purpose of cross-examining Mr. Pope, if he testifies at trial in his owndefence.

The Crown is not seeking to enter the statements as part of its case in chief. [3] The issue for my determination is whether the Crown has established beyond a reasonable doubt that Mr. Pope made thestatements voluntarily. background [4] To determine voluntariness, I must consider the statements in the context of the totality of the exchanges and interactionsbetween Mr. Pope and the police on the dates in question. The Voir Dire Testimony and Police Interviews [5] I heard the testimony of eleven RNC officers called by the Crown. They testified as to their involvement with Mr.

Pope on 7(until 1:24 a.m. on the 8th), 9, 10, and 11 September, 2017. I listened to audio exchanges that Mr. Pope had with officers on those dates,and watched video recordings of Mr. Pope while he was either alone or with officers in an interview room at RNC Headquarters. [6] Mr. Pope did not testify on the voir dire and called no evidence. [7] The Crown is seeking specifically to admit the recordings from 7 September (First Interview) and 11 September (SecondInterview).

As a guide for assessing evidence and the recordings, the Crown provided transcripts of these interviews and the two otherinterviews that took place with Mr. Pope on 9 and 10 September in preparation for the Second Interview. [8] In the First Interview, Mr. Pope denied any knowledge of, or involvement in, the stabbing of Mr. Collins. [9] The Second Interview came at Mr. Pope’s request and consent. He wanted to re-engage with Cst. Dillon (now SergeantDillon) for the purpose of rectifying what he had earlier told her in the First Interview. Mr. Pope was in custody and taken to RNCHeadquarters.

At the commencement of the Second Interview, Cst. Dillon confirmed Mr. Pope’s consent and the order granted to bringhim to RNC Headquarters. She confirmed he was not under arrest and not detained, but he was in custody and could not leave, however,he could withdraw his consent at any time. She reread him his rights and caution, including his right to speak to counsel.

[ 10 ] Mr. Pope advised Cst. Dillon at the commencement of the Second Interview: “I just want to tell the truth and get it over with and go on with my life.” Mr. Pope maintained he did not stab Mr. Collins. He stated there was a confrontation between him and Mr. Collins in a taxicab, and Mr. Collins came after him with a knife after he jumped out of the cab and ran while Mr. Collins was swinging the knife at him. Mr. Pope identified the name of another person who intervened in the altercation and stabbed Mr. Collins. Detention and Arrest of Mr. Pope [ 11 ] At approximately 3:35 p.m. on 7 September, Cst.

Kennedy, a member of the Police Canine Unit, was dispatched to Alderberry Lane. Prior to arriving at Alderberry he received information on the police radio that his attendance was not required, and the person of interest or suspect had left in a taxi and the taxi had gone to Whiteway Street, Keegan Court area. Cst. Kennedy arrived in that area at 3:46 p.m. [ 12 ] Cst. Kennedy observed two males exiting “the Courts” on Elizabeth Avenue and crossing the street toward Paton Street. Another officer advised he had been speaking to one of the males and a second male had gone into a doctor’s office on Paton Street. Cst.

Kennedy, wearing police attire and standard protective gear, approached Mr. Pope and told him he matched the description of a suspect in an assault with a weapon. He told Mr. Pope he was being detained for this reason. Cst. Kennedy immediately handed Mr. Pope over to Cst. Hogan, who took custody of Mr. Pope. [ 13 ] Cst. Hogan at 3:53 p.m. advised Mr. Pope he was detained under an investigation for an assault, and based on the nature of the assault, if the victim succumbed to his injuries the scope of the investigation would change to murder. He read Mr. Pope his rights and caution from his police issued card. Mr.

Pope advised he understood the caution and that he wished to speak to a lawyer. He was agreeable to speaking to a lawyer at RNC Headquarters, a more private place, rather than in the backseat of the police car. [ 14 ] Cst. Hogan spoke to Mr. Pope’s lawyer, Robert Regular, and at 4:16 p.m. handed the phone over to Mr. Pope in a private room to speak to Mr. Regular. [ 15 ] Mr. Pope had a cut on his lip. He did not seek medical attention. If he did, Cst. Hogan would have arranged for it. [ 16 ] Mr. Pope was placed in the video interview room at around 4:33 p.m. Mr.

Pope asked how long he was going to be there, and the officer told him he didn’t know. The officer brought Mr. Pope a glass of water, and indicated if he needed anything else to let him know. [ 17 ] Cst. Bishop, the File Coordinator for the investigation, at 4:47 p.m. advised Mr. Pope he was under arrest for assault with a weapon and that jeopardy may change; if the victim died, the charge would be upgraded to murder. Mr. Pope is heard indicating he didn’t do it, and he can’t go through this again. He had not long gotten out of jail and did not want to go back again. [ 18 ] Cst.

Bishop read him his rights and caution and asked him if he understood. He stated, “I don’t mind talking to you.” He asked what happened and who was the victim. He indicated he was just talking to his lawyer. Cst. Bishop asked if he wished to speak to his lawyer again. He stated he had lots of alibis. [ 19 ] Cst. Dillon, when she started interviewing Mr. Pope, advised him that Mr. Collins had died and the charge was now homicide. She asked if he understood, and he acknowledged “it makes sense,” but inquired “who did you say it was?” Cst. Dillon confirmed David Collins.

She proceeded to reread him his rights and caution because the charge was upgraded to a homicide. Analysis Issue: Has the Crown established beyond a reasonable doubt the voluntariness of statements Mr. Pope made, in whole or part, to police officers on 7, 9, 10 and 11 September 2017? [ 20 ] First, I will set out the guiding law and authorities on the admissibility of statements made by the Accused to persons in authority. [ 21 ] The law I am to apply is settled and not in dispute between the parties: R v. Tessier , 2022 SCC 35 , at para. 68 ; R. v. Spencer , 2007 SCC 11 , at para. 12 ; and R. v.

Oickle , 2000 SCC 38 . Law on Proving Voluntariness of Statements to Police [ 22 ] All statements made by an accused to a “person in authority” must be proven to be voluntary before the statements are admissible at trial. Although this is known at common law as the “confessions rule,” the statements need not necessarily constitute a confession or contain inculpatory omissions. [ 23 ] The out-of-court statements of Mr. Pope will not be admissible if made under circumstances that raise a reasonable doubt as to voluntariness ( Oickl e, at para. 68 ).

The Crown bears the persuasive or legal burden of proving voluntariness beyond a reasonable doubt. [ 24 ] The inquiry is to be contextual and fact-specific. I am required to weigh the relevant factors of this particular case ( R. v. Singh , 2007 SCC 48 , at para. 35 ; R. v. Kelly , 2019 NLCA 23 , at para. 40 ). [ 25 ] The voluntariness of a statement is determined by considering the following factors: a. Threats or promises; b. Oppression; c. Operating mind; and

d. Police trickery. [26] Threats or promises, oppression and the operating mind doctrine are to be considered together and “should not be understood asa discrete inquiry completely divorced from the rest of the confessions rule” (Oickle, at para. 63).

On the other hand, the use of “police... trickery” to obtain a confession “is a distinct inquiry ... [given that] its more specific objective is maintaining the integrity of thecriminal justice system” (at para. 65). [27] The factors identified are not a checklist – ultimately, I must determine, based on the whole context of the case, whether thestatements made were reliable and whether the conduct of the police served in any way to unfairly deprive Mr. Pope of his free choice tospeak during the police interviews. [28] The “twin goals” of the confessions rule must be kept in mind.

That is, protecting the Accused against the admission ofunreliable statements and his free will, while not “unduly limiting society’s need to investigate and solve crimes” (Oickle, at para. 33). Position of the Parties The Crown [29] Mr. Patten notes the Crown is not obligated to call every officer to testify that had contact with Mr. Pope leading up to thestatements (R. v. Bools, 2016 ONCA 554, at para. 5; R. v. Roberts, 2016 NLTD(G) 19, at para. 30; and R. v. Lavallee, 2018 ABCA 328,leave to appeal refused [2019] S.C.C.A. No. 41, at para. 36). There was one RNC officer that had some contact with Mr.

Pope duringthe relevant time that was not called to testify. The Defence is not taking any issue with the fact that the officer did not testify on the voirdire. [30] With respect to the evidentiary record, the two substantive interviews of Mr. Pope were video-recorded. There were someinteractions with the officers that were not recorded. There is no rule of law that requires all interactions between the police and suspectbe recorded (Oickle, at para. 46; and Kelly, at para. 41). Nevertheless, during the First Interview and Secord Interview when Cst.

Dillonstopped the interviews for breaks, a DSS recorder was used to capture all exchanges between Mr. Pope and the officers outside of theinterview room. The DSS recordings also appear in the transcripts. [31] The Crown submits, and I agree, in this case there is no evidence that any of the officers threaten the Accused either overtly orsubtly, and there is no evidence of police trickery. [32] The Crown’s Brief addresses the law pertaining to inducements, oppression and operating mind. Mr.

Patten, in his oralsubmissions, expanded on the law and reviewed very carefully the evidence that he submits demonstrates the Crown has met the burdenof proof for establishing voluntariness of Mr. Pope’s statements. [33] Police are permitted to offer certain inducements to a suspect to obtain a confession. I agree with Mr. Patten that the SupremeCourt of Canada has clearly set out the legal test for improper inducements.

The test is whether the inducements “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”(Oickle, at para. 57). The most important consideration is to look for a quid pro quo offer (a favor or advantage granted or expected inreturn for something) by interrogators. [34] Mr. Patten submits the conditions necessary to constitute oppression are simply not present in this case (Oickle, at paras. 59–62). Mr. Pope did not have to endure inhumane conditions.

He was not deprived of food, water, clothing, sleep, or medical attention. He was not denied access to counsel. The officers did not engage in “excessively aggressive, intimidating questioning for a prolongedperiod of time” (Oickle, at para. 60). [35] The Crown concedes if the First Interview is held to be inadmissible, the Second Interview should not be admissible eitherbecause the first was a substantial factor contributing to the second, the short timespan between the two, and the same investigator wasinvolved in both: (R. v. I. (L.R.), (SCC), [1993] 4 S.C.R. 504, at para. 40; R. v.

G. (B.), (SCC), [1999] 2S.C.R. 475, at paras. 21-26; and R. v. McGregor, 2020 ONSC 4802, at paras. 220-223). The Defence [36] Mr. Gruchy, in his submissions for Mr. Pope, highlights the Supreme Court decision in Tessier (at paras. 68–70), and inparticular the concern for the reliability of statements that are produced by improper police conduct. He submits “coerced-compliantconfessions” (Oickle, at para. 39) or statements are inherently unreliable and therefore involuntary. [37] In the area of inducement, quid pro quo does not need to be explicit.

It can be implicit and the question becomes whether thetotal factual matrix gives rise to a reasonable doubt on voluntariness. [38] Mr. Gruchy submits the First Interview amounts to Mr. Pope saying I wasn’t there while repeatedly asking who is the victimand where did it happen. The Second Interview consists of Mr. Pope saying to the police two days later everything I told you isessentially a lie; now I’m going to tell you the truth. He states at the time of the First Interview Mr. Pope was upset, exhausted andthinking of his daughter. Mr.

Gruchy suggests this raises a reliability concern and the Court must ask why it is so different from the first. When one considers the full contextual circumstances of the First Statement, he submits there is a reasonable doubt as to its reliability. [39] Defence counsel reviewed the evidence that he submits raises a reasonable doubt on voluntariness. Mr. Pope had been detainedfor hours and kept in the interview room. While waiting for the investigating officers to come interview him, he repeatedly asked forcigarettes and was refused.

He expressed distress that the main investigator had not yet come to conduct the interview. During thisperiod, he engaged in acts of self-harm. This is all before the interview with Cst. Dillon commenced. [40] When Cst. Dillon comes into the mix, Mr. Gruchy notes two things occur. First, Mr. Pope finds himself in handcuffs because

Cst. Edmunds, as a member of the second shift watching Mr. Pope, made a decision to handcuff Mr. Pope due to things that happened hours before, whereas the earlier shift of officers had not done that. Mr. Pope ends up in the handcuffs simultaneously to his communication with his lawyer about now being confronted with a murder investigation, and finding himself sitting before the investigator who is about to begin her interrogation. Mr.

Pope inquires of an officer (at p. 7, Transcript), “So these are staying on now… all of a sudden these are on while I’m in here now?” The officer replies they will come off when the investigators return to the room. [ 41 ] Mr. Pope had not eaten since lunchtime and he had not been given a cigarette since his detention. Ultimately, he is permitted by Cst. Dillon to have a cigarette before the interrogation begins. [ 42 ] The second thing that occurs is Cst. Dillon offers to take off the handcuffs as long as Mr. Pope cooperates with her. Mr. Gruchy accepts that Cst.

Dillon explained her rationale for taking this approach, but submits the inquiry is not about Cst. Dillon’s intent. It is about whether Mr. Pope’s statements are reliable or challenged by actions that are improper. Mr. Gruchy frames this interaction between Mr. Pope and Cst. Dillon as both an inducement and an oppressive act. The inducement is: if you cooperate you will not be restrained physically . The oppression is: cooperate or you will be restrained physically .

Sometimes inducements and oppressive acts can overlap – they can be the same act. [ 43 ] Defence counsel submits this is the context for the commencement of the interrogation process, and with Cst. Dillon attempting to immediately build rapport with Mr. Pope by referring to their past encounters. [ 44 ] Mr. Gruchy reminds me that portions of the statements may be found to be voluntary and others involuntary. It is not an all-or- nothing approach. [ 45 ] The Defence is not asserting there was any type of harsh, abrasive or aggressive conduct on the part of Cst. Dillon or other officers.

The question is whether the Court has any reasonable doubt that Mr. Pope may have been saying what he did because of the totality of the conditions that existed at the time of the taking of the statements ( Oickle , at para. 71 ). There is no burden on Mr. Pope to prove that the conditions that existed produced unreliable statements; it is a matter of the Crown’s burden and reasonable doubt arising from the totality of the evidence. Assessment of the Evidence and Application of the Law [ 46 ] It is paramount that I assess the voluntariness of statements from the perspective of the Crown’s burden of proof.

If the evidence leaves me with a reasonable doubt on the voluntariness of statements, I must declare such statements to be inadmissible. Statements can be inadmissible, in part, without the entirety of the statements being so. [ 47 ] The operating mind doctrine requires the Crown to show that Mr. Pope possessed the limited cognitive ability to understand what he was saying and to comprehend that the statement might be used as evidence in criminal proceedings: ( Tessier , at paras. 8 ; and R. v. Lambert , 2018 NLCA 39 , at paras. 8 and 14 ).

The Accused need only point to evidence that puts in issue whether he had an operating mind at the time the statements were made ( Tessier , at para. 84 ). The burden remains on the Crown to satisfy me beyond a reasonable doubt that the statements were voluntary. [ 48 ] I will consider Mr. Pope’s challenges to the voluntariness of his statements in assessing whether the Crown has satisfied the burden of proof. As identified by counsel for Mr. Pope, I will address five specific concerns relating to the reliability of the statements and whether Mr. Pope’s will was overcome: 1.

His mental vulnerability and fragility; 2. Sleep deprivation; 3. Provision of cigarettes as inducement; 4. Use of handcuffs as inducement; and 5. Delay in providing food during the First Interview. [ 49 ] I accept Mr. Gruchy’s submission that I must not assess the concerns raised in isolation, but holistically in the context of all the circumstances and the totality of the evidence. [ 50 ] Assessing the evidence as a whole, I find the officers treated Mr. Pope with dignity and respect. He was dealt with politely and courteously throughout.

I find all the officers were credible and reliable witnesses, and I accept their evidence on the interactions with Mr. Pope. [ 51 ] Mr. Pope was given the right to speak to counsel and he availed of the opportunities to do so. He chose to speak to the police officers after speaking and consulting with counsel. [ 52 ] He was not denied water or soda drinks, food or bathroom breaks. I find Mr. Pope was treated humanely and decently by all the officers. [ 53 ] Cst. Dillon conducted the interviews skillfully and with utmost professionalism. She proceeded firmly but fairly in questioning Mr. Pope.

I was impressed with her ability to listen to Mr. Pope’s answers, take notes of what he was saying and then repeat almost verbatim back to him so she could confirm his answers. [ 54 ] Within just hours of the alleged stabbing and death of Mr. Collins, Cst. Dillon, in the First Interview, related to Mr. Pope the investigative details the police had thus far gathered to ascertain whether he had any involvement in the stabbing of Mr. Collins. She methodically questioned Mr. Pope on the timing and particulars of his whereabouts on that day.

[ 55 ] Cst. Dillon did not use any police trickery or falsify information in her pointed and precise questioning of Mr. Pope. At one point in the First Interview (at pp. 88 and 89, Transcript), Mr. Pope restates, “I had nothing to do with this.” Cst. Dillon confirms she is trying to be fair with him, relates she appreciates he is being cooperative with her, and needs to sort through some inconsistencies in his statements. Mr. Pope indicates that “in this type of environment” she is asking “tricky questions.” Cst. Dillon reassures him that she is “not trying to ask tricky questions.” Mr.

Pope then says, “I know that.” [ 56 ] I will turn to addressing each of the challenges and concerns Mr. Pope raises to demonstrate the police conduct was not oppressive; there was no quid pro quo inducements; and Mr. Pope had the requisite operating mind.

(1) Mental Vulnerability and Fragility [ 57 ] Cst. Dillon testified she was made aware that Mr. Pope had attempted self-harm. I accept her evidence that she would not have interviewed Mr. Pope unless she was satisfied he had the mental capacity and stability to answer her questions. Mr. Pope did not express to Cst. Dillon that he was too emotionally upset and distraught to answer questions. [ 58 ] Cst. Gaudette observed on the monitor outside the interview room that Mr. Pope had wrapped a cord from a floor lamp around his neck. Cst. Fowler who was outside the interview room with Cst.

Gaudette went into the room to remove the cord and lamp. Cst. Fowler reported the incident to his supervisor because he felt Mr. Pope was at risk of self-harm. Subsequently, Cst. Fowler removed a belt that Mr. Pope had taken off and put around his neck. Cst. Fowler requested and received an additional member for support in monitoring Mr. Pope. He testified Mr. Pope had no physical injuries or loss of consciousness from the two self-harm incidents. [ 59 ] The level of rapport that Mr. Pope had with Cst.

Fowler and other officers after the self-harm incidents demonstrates that he had cognitive awareness and an operating mind. Cst. Fowler, over the several hours he observed Mr. Pope, had no concern that Mr. Pope did not understand what he was saying. He felt Mr. Pope appreciated he was a police officer and that Mr. Pope was of “sound mind.” Mr. Pope engaged in discussions concerning his ex-spouse and court proceedings about access to his young child. He wanted someone to contact his mother to make arrangements for care of the child, and Cst. Fowler spoke to Mr. Pope’s mother on his behalf. [ 60 ] Sgt.

Dillon testified Mr. Pope was aware of who she was from some previous dealings between them. She ensured he understood the police caution by having him repeat back to her what it meant. He stated it meant, “it could be used in court” (p. 4, Transcript). She spoke of having “mutual respect” for each other. She advised him, “I do have a job to do” (p. 19, Transcript). Her role was to get “his side of the story” (p. 46, Transcript). Mr. Pope was aware of Cst. Dillon’s role and he fully participated with an operating mind throughout the interviewing process. [ 61 ] Whether Mr.

Pope made good or bad choices to talk to Cst. Dillon is not the issue. He understood he did not have to talk, and he made the choice to talk: ( R v. Reid , 2013 NLTD(G) 64, at para. 36). [ 62 ] Mr. Pope did not ask the officers for medical attention. He had a cut on his lip but did not ask any of the officers for medical attention for this or any other reason including his mental health. T he officers testified they would not have deprived him of medical attention if they felt he needed it, or if he sought it. [ 63 ] Although Mr.

Pope at times was distraught and agitated, the officers did not intimidate or take advantage of his mental vulnerability and fragility to cause his will to be broken: ( R. v. Viner , 2010 MBQB 306, at paras. 29 and 30 ). [ 64 ] He did not speak to the police to escape some intolerable condition either with regard to his state of agitation or mental fragility.

(2) Sleep Deprivation [ 65 ] Mr. Pope was not too tired or sleepy to appreciate the questions he was being asked by Cst. Dillon, and to comprehend that the answers he gave might be used to aid in the investigation and ultimately as evidence on the charge against him. [ 66 ] The video shows Mr. Pope at times taking naps. He did express to Cst. Dillon right from the start when she asked him if he was tired: “I’m droppin’” (p. 2, Transcript), and later in the interview he reiterated he was tired. He is seen in the video a number of times yawning. However, I accept Sgt.

Dillon’s evidence that she would not have continued with the interview if she felt that Mr. Pope was too tired to continue or unaware as to what he was saying. Watching the video reveals he is engaged with Cst. Dillon, responsive to her direct and detailed questioning, and assertive of the details he wants her to know. He was by no means dozing off to sleep during the actual questioning. [ 67 ] His level of engagement is also apparent from listening to the audio of him with other officers on cigarette breaks.

He is alert and aware, as demonstrated by his talking about the weather, asking about the whereabouts of an officer he knows personally, and expressing the seriousness of the charge. [ 68 ] The First Interview went until 1:34 a.m. after having commenced at 8:56 p.m., and Mr. Pope having been detained since just before 4:00 p.m. At no point did Mr. Pope indicate to Cst. Dillon that he was too tired to continue or did not want to continue with the interview. I reject any suggestion that Mr. Pope’s sleep deprivation and fatigue caused him to make statements simply to bring the questioning to an end. [ 69 ] As Mr.

Patten noted in his submissions, the First Interview was nowhere near as long as the interview conducted in R. v. Garnier , 2017 NSSC 339 (at paras. 7 , 8 and 27). Despite the lengthy and persistent questioning, the trial judge found the statements voluntary, and the finding was upheld by the Nova Scotia Court of Appeal ( 2020 NSCA 52 , at paras. 31 , 59 and 60). [ 70 ] I fully appreciate at times Mr. Pope was sleeping when Cst. Dillon was not in the interview room, and he stated he was tired. That is not surprising, since it was indeed late into the night for both Mr. Pope and Cst. Dillon.

A suspect being tired cannot justify and prevent the police from doing their job. They had a duty to investigate the fatal stabbing of Mr. Collins. For Cst. Dillon to cease

questioning Mr. Pope because he was tired would have been a dereliction of her duty, unless she believed his condition and mental awareness level warranted her terminating the interview. [ 71 ] I find Cst. Dillon exercised appropriate professional judgment to continue with the interview, notwithstanding Mr. Pope was tired and sleepy at times over the course of that late night.

(3) Provision of Cigarettes as Inducement [ 72 ] The providing of cigarettes to Mr. Pope was not an inducement. [ 73 ] Cst. Dillon did not offer cigarettes to Mr. Pope as a quid pro quo or “attach any strings” to providing him with cigarettes during either of the interviews. If it was an inducement, then it was not strong enough to raise a reasonable doubt about whether Mr. Pope’s will was overcome ( R. v. Lavallee , 2012 ONSC 2623 , at para. 31 ; and R. v. Payeur , 2005 BCPC 155 , at para. 54 ). [ 74 ] Mr.

Pope requested the officers provide him with cigarettes while he was waiting for the First Interview to commence. The officers testified they inquired of their supervisors, and they needed approval before taking Mr. Pope out for a cigarette. [ 75 ] Throughout the First Interview, Mr. Pope was in control of what information he was providing to Cst. Dillon. He insisted he had nothing to do with the stabbing of Mr. Collins and was not in the area of Alderberry Lane at the time the stabbing occurred. Even after Cst. Dillon permitted the officers to take Mr.

Pope out for cigarettes during the First Interview, he continued to insist upon returning to the interview that he was elsewhere at the alleged time of the stabbing and identified alibis and persons who could confirm where he was. Cst. Dillon also repeated the police cautions when Mr. Pope returned from cigarette breaks and reminded him he did not have to speak to her, and ensured other officers did not make any offers, threats or promises to him. [ 76 ] I reject the Defence suggestion that Cst. Dillon’s comment (at p. 96, Transcript), after Mr.

Pope asked for another cigarette break later in the First Interview, was a “subtle inducement.” Cst. Dillon stated: “I told you last time, I’ll tell you again, if you cooperate with me, I’ll cooperate with you. You know what I mean … mutual respect.” Cst. Dillon was merely indicating her respect for Mr. Pope wanting to take a break and allowing him the opportunity, at his request, to have a cigarette before she continued with the interrogation. Taking account of the entire First Interview, I find this comment was not a quid pro quo offer. Cigarette breaks were not offered to Mr.

Pope in exchange for his statements ( R. v. Bharwani , 2017 ONSC 649 , at para. 51 ). The cigarettes were offered to satisfy Mr. Pope’s addiction and not to overbear his will to talk. [ 77 ] Before the Second Interview commenced, Cst. Dillon permitted Mr. Pope to go for a cigarette. Mr. Pope requested the Second Interview. He wanted to speak to Cst. Dillon to confirm his First Statement was not true and to provide a different version of events that it was actually someone else who stabbed Mr. Collins. Cst. Dillon facilitating Mr.

Pope to have a cigarette before the Second Interview was not a means or inducement to get Mr. Pope speaking. I accept Sgt. Dillon’s testimony that smoking is an addiction and that permitting him to have a cigarette was simply so Mr. Pope could satisfy his cravings for a cigarette before starting the interview. [ 78 ] I agree with Mr. Patten’s assertion that there is no requirement for an officer interrogating the Accused to say I am offering you a cigarette, but it is not an inducement for anything you might say . Cst.

Dillon had no such obligation to do so here. 4) Use of Handcuffs as Inducement [ 79 ] Likewise, I consider the comments of Cst. Dillon on handcuffing not in isolation but in the context of the entirety of the First Interview having regard to the particular circumstances of officer safety concerns. Cst. Dillon states (at p. 16, Transcript, 7 September, 2017), “So Craig, I’m gonna have those taken off. Obviously you know the drill. If you cooperate with me, they can stay off.” Mr. Pope replies, “Yeah” to which Cst. Dillon says, “If not, they gotta go back on.” [ 80 ] It was Mr. Pope who stated to Cst.

Dillon even before the handcuffs were removed: “I know you’re only doing your job, but you got the wrong guy in here” (p. 15, Transcript). I find it was Mr. Pope who wanted to talk and tell his story. [ 81 ] I accept Sgt. Dillon’s testimony that the use of handcuffs was for officer safety when Mr. Pope left the interview room, and her own safety while Mr. Pope was being interviewed. She did not have any concerns, so the handcuffs were removed. [ 82 ] In any event, after making the comments to Mr. Pope about the handcuffs, Cst. Dillon was quick to ask Mr.

Pope (at p. 17, Transcript), “Have you been threatened or promised or coerced in any way, shape or form by any officers?” Mr. Pope replies, “No.” Cst. Dillon asks, “By myself?” Mr. Pope reaffirms, “No.” [ 83 ] I cannot see how Mr. Pope’s will was overborne by use of handcuffs when he went for cigarette breaks, and the removal of the handcuffs during the interviews. Even if I were to consider it a “subtle inducement,” it raises no reasonable doubt for me on the voluntariness of the statements. [ 84 ] The evidence clearly demonstrates there was no quid pro quo .

Nothing in what the officers said or in their conduct constituted an inducement, or had the effect of undermining Mr. Pope’s will to speak to the officers ( R. v. Castellano , 2023 ONCA 45 , at paras. 5– 14 ). 5) Delay in Providing Food [ 85 ] Cst. Dillon asked Mr. Pope if he wanted something to eat (at p. 59, Transcript) and then arranged to have a meal brought to him. She continued with the interview while waiting for the food to arrive. [ 86 ] It was a reasonable approach to continue with questioning while awaiting for Mr. Pope’s meal rather than further delaying the interview. Mr.

Pope never expressed he did not want to continue until being fed. When the meal arrived, Cst. Dillon took a break to allow Mr. Pope sufficient time to eat the meal provided.

conclusion [ 87 ] Having considered the circumstances as a whole, I am satisfied the officers did not create an atmosphere of oppression depriving Mr. Pope of his free will. I conclude he willingly spoke to the police, he understood what he was saying and the consequences it may have for him in the criminal proceedings. I am not left with any reasonable doubt on the voluntariness of the statements. Disposition and Order [ 88 ] I find the statements Mr. Pope made to the RNC officers on 7 (into the 8th), 9, 10, and 11 September 2017 were voluntary and order that the statements are admissible.

The Crown is therefore permitted to use the First Interview and the Second Interview for the intended purpose of cross-examining Mr. Pope, if he testifies at trial. __________________________ GLEN L.C. NOEL Justice