)) HER MAJESTY THE QUEEN Applicant – v. –, 2010 ONSC 6272

CITATION : R. v. Jimmy Alfredo Jorgge, 2010 ONSC 6272 COURT FILE NO.: 09-50000459-0000 DATE: 20101203 SUBJECT TO A PUBLICATION BAN ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN Applicant – and – JIMMY ALFREDO JORGGE Respondent )) )) )) )) ) ) Anna Trbovich , for the Applicant Royland Moriah , for the Respondent HEARD: November 8,9,10,12, 2010 J.

WILSON J: RULING ON THE ADMISSIBILITY OF STATEMENT GIVEN BY mR. jORGGE ON jULY 23 AND jULY 24, 2008 [ 1 ] On July 23, 2008, Jimmy Alfredo Jorgge was arrested by police in his condominium when the police executed a search warrant authorizing a search for date rape drugs and related items. [ 2 ] Mr. Jorgge is charged with administering a stupefying drug to Ms. R. on July 18, 2008, with intent to enable himself to commit the indictable offence of sexual assault contrary to

section 246(b), and with sexual assault contrary to section 271(1) (

a) of the Criminal Code , R.S.C. 1985, c. C-46. [ 3 ] When Mr. Jorgge was arrested he made certain utterances. Shortly after his arrest, Mr. Jorgge gave a three hour statement to the police. The Crown seeks to admit into evidence at this trial the statement given by Mr. Jorgge to the police following his arrest, as well as the letter of apology written to Ms. R. after making his statement to the police. The defence argues that the Crown has not proven beyond a reasonable doubt that the statement and the letter were voluntarily given. The defence has not raised the issues of whether Mr. Jorgge’s right to remain silent or his right to counsel under ss. 7 and 10(

b) of the Canadian Charter of Rights and Freedoms were violated. [ 4 ] No issue is raised by the defence with respect to the conduct of the police during the search of Mr. Jorgge’s apartment pursuant to the search warrant or the arrest. The defence does not challenge the admissibility of the utterances made when Mr. Jorgge was arrested. Clearly Mr. Jorgge was given his rights to counsel on several occasions and was appropriately cautioned. The police arranged for Mr. Jorgge to speak to duty counsel.

He did speak to duty counsel in private before being interviewed. [ 5 ] The focus of this application is with respect to the nature of the questioning of Mr. Jorgge and specifically whether the interviewer used a threat or inducement to obtain the statement. The Crown’s Position

[ 6 ] It is the Crown’s position that there was no oppression in the atmosphere and manner of questioning, and that the interviewer did not use threats or inducements to encourage Mr. Jorgge to divulge information. [ 7 ] Mr. Jorgge, at all times during the questioning, remained calm and cool to the point of nonchalant, and clearly held his own. He divulged very little information, and was very resistant to committing to any answer or any question. [ 8 ] Throughout the entire interview, Mr. Jorgge vigorously denied administering a drug to Ms. R. in spite of very aggressive and persistent questioning.

He denied to the end of his statement that he knew of Ms. R’s condition, and admitted that only in hindsight it was at best an error of judgment on his part to have sexual intercourse with Ms. R. given the circumstances, and that he felt badly. [ 9 ] The Crown challenges the defence suggestion that the interviewer used a threat or inducement. The interviewer used the theme throughout the questioning whether this incident with Ms. R. was a one-time incident, or whether Mr. Jorgge was a sexual predator that cruised Lavalife on a regular basis to find vulnerable women for sex.

This was more than just a theme in the questioning. [ 10 ] Based upon the evidence, it is the Crown’s position that the interviewer had bona fide concerns coming into the interview that Mr. Jorgge may be a serial sexual predator. These concerns voiced by the interviewer to Mr. Jorgge during the interview were genuine, although providing the option of this being a one-time incident was part of a technique of minimizing to Mr.

Jorgge his culpability in an attempt to illicit a confession. [ 11 ] This was not a case of using a ruse or trickery to obtain a favourable statement from a person under arrest. [ 12 ] The Crown further contends that, even if the comments made by the interviewer may be perceived as a threat or inducement, the statement by the interviewer had very little influence upon Mr. Jorgge. He divulged very little until the end. The apology letter was Mr. Jorgge’s idea and the letter is carefully written – it does not admit to the commission of a sexual assault, and categorically denies administering a drug. Mr.

Jorgge acknowledges in his statement and in the apology letter that he made an error of judgment and feels badly, but that he was unaware of Ms. R’s condition at the time of the sexual activity. [ 13 ] The Crown asserts that the voluntariness of the statement has been proven beyond a reasonable doubt. [ 14 ] Although the Crown acknowledges that there are some monologues by the interviewer, it submits that generally the interview is a back and forth discussion. Although few admissions were made, aspects of Mr. Jorgge’s evidence confirm the evidence of Ms.

R. and the statement is relevant and probative to the charge of sexual assault. This trial is proceeding before me, and therefore there is no issue of prejudice by having the theory of the Crown reinforced to the jury by the interviewer monologues during questioning. The Defence Arguments [ 15 ] The defence challenges the admissibility of the statement on several grounds. [ 16 ] The primary submission of the defence is that the interviewer used the threat of pursuing other similar criminal charges by alleging that Mr. Jorgge was a sexual predator when Mr.

Jorgge gave unsatisfactory answers to questions with respect to the charges involving Ms. R. The defence argues the interviewer was offering an inducement to not pursue the other potential proceedings if he answered the questions relating to Ms. R. in a satisfactory manner.

Specifically, the defence objects to the statement made by the interviewer at pages 243-244 of the transcript: “Okay, ‘cause save me … save me from thinking that you are the kind of guy that does this … on a constant basis ‘cause I really don’t wanna make a whole … project out of you….” [ 17 ] The defence raises concerns about the Reid method of questioning used by the interviewer. The method is designed to question a suspect under arrest with the objective of seeking to evoke a confession. The method uses a repetitive, aggressive manner of

questioning in a controlling atmosphere that cuts off answers by an accused person if the answer is not satisfactory. [18] In all of the circumstances, the defence argues that, having regard to the overarching principles outlined in R. v. Oickle,2000 SCC 38, [2000] 2 S.C.R. 3, 147 C.C.C. (3d) 321, the Crown has not met the burden of proving beyond a reasonable doubt that thestatement given by Mr.

Jorgge and the letter written by him were voluntary. [19] In the alternative, the defence argues that because there were so many lengthy monologues by the investigating officer andso many interruptions of the accused during his answers, where his answers were cut off, that the statement should not be admitted asrelevant or probative. The General Legal Principles for Admissibility of a Statement [20] The Crown bears the onus of proving beyond a reasonable doubt that any statement given by an accused person isvoluntary. Any statement given is presumptively inadmissible unless the Crown meets this burden of proof.

The focus of inquiry is uponvoluntariness, which overlaps with the reliability of any confession given. [21] The principles surrounding the confessions rule enunciated in R. v. Oickle are founded on the two goals of protecting therights of accused persons while not overly limiting the ability to investigate and solve crimes. As Iacobucci J. stated, for the majority inR. v. Oickle, at para 33: In defining the confessions rule, it is important to keep in mind its twin goals of protecting the rights of the accused without undulylimiting society's need to investigate and solve crimes.

Martin J.A. accurately delineated this tension in R. v. Precourt (1976), (ON CA), 18 O.R. (2d) 714 (C.A.), at p. 721: Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mindthat the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of havingcommitted the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminalinvestigation... .

On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive andcalculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible... .

All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of eitherof these objectives. [Emphasis added] [22] Iacobucci J. confirmed Wigmore’s characterization that voluntariness is a “shorthand for a complex of values” (at para. 70)protecting individual freedom, but also ensuring that the police must obey the law while enforcing the law. [23] In R. v.

Oickle Iacobucci J. identified and integrated two main themes in the jurisprudence, namely the exclusion ofstatements induced by threats or promises in accordance with the rule confirmed in Ibrahim v. The King, [1914] A.C. 599, 24 Cox. C.C.174 (P.C.), and the “operating mind” requirement, addressed in cases such as R. v. Hebert, (SCC), [1990] 2 S.C.R. 151,R. v. Horvath, (SCC), [1979] 2 S.C.R. 376, and R. v.

Whittle, (SCC), [1994] 2 S.C.R. 914, whichbroadened the original scope of the confessions rule. [24] Thus, even if a statement is not induced by the classic scenario of “fear of prejudice or hope of advantage,” statements canbe excluded if the circumstances or conduct of the authorities raise doubts about whether the accused was able to make an informeddecision about whether to speak to the police or remain silent. The conduct of the police in conducting the questioning is a focal concern. [25] These principles are outlined in paras. 68 and 69 of Oickle:

68 While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all, because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger.

If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision. 69 The doctrines of oppression and inducements are primarily concerned with reliability.

However, as the operating mind doctrine and Lamer J.’s concurrence in Rothman , supra , both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness “that focuses on the protection of the accused’s rights and fairness in the criminal process”: J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule.

Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence.

If a confession is involuntary for any of these reasons, it is inadmissible. [Emphasis added] [ 26 ] The relevant factors in assessing voluntariness include whether the police used threats, promises, oppression, trickery or lies in obtaining the statement. [ 27 ] The operating mind doctrine is also an aspect of the voluntariness inquiry; that is, does the accused person know that what he is saying to the police may be used to his detriment?

The requirement of an operating mind is not a discrete inquiry, but rather is part of the contextual analysis of the voluntariness of a statement. [ 28 ] The defence did not raise a challenge whether Mr. Jorgge’s rights to counsel pursuant to

section 10(

b) of the Charter were respected. However, he does rely on the circumstance during the questioning that when Mr. Jorgge stated that he should not be speaking to the police and should be speaking to his counsel, in response the police officer ignored the comment and simply continued with the questioning. Consequently, the defence suggests these facts contribute to an atmosphere of oppression. [ 29 ] The application of the confession rule is contextual and is essentially a consideration of all of the relevant factors in the facts of each case. There is no hard and fast rule as to voluntariness.

My role is to consider all of the circumstances surrounding the giving of the statement to determine whether these circumstances and facts, considered cumulatively, give rise to a reasonable doubt about the voluntariness of a statement given. [ 30 ] I must take into account all of the surrounding circumstances to determine whether the Crown has proved beyond a reasonable doubt that the statement given by Mr. Jorgge was voluntary. The Factual Allegations of the Complainant giving rise to the Charges [ 31 ] Ms. R. met Mr. Jorgge on line in the Lavalife long term relationship

section of the website. They exchanged email communication, telephone communication and on July 17, 2008 decided that they would have a date and meet face to face. [ 32 ] They met sometime after 10 p.m. on July 17, 2008 outside Mr. Jorgge’s condominium located at 4 Elsinore Path in the City of Toronto. They drove a short distance away to a nearby park bordering Lake Ontario and shared a bottle of red wine that the Applicant had provided. Approximately two hours later they drove to Mr. Jorgge’s apartment so that Ms.

R. could use the washroom. [ 33 ] When the complainant exited the washroom, the Respondent had already poured her another glass of red wine. They socialized and talked and some time after consuming some of this wine, the complainant began to feel ill, and became nauseous and dizzy. She passed out in the den and when she came to Mr. Jorgge was no longer there. She observed the Respondent lying under the sheets in his bed.

The complainant continued to feel ill and lay down face first on the Respondent’s bed on top of the sheets, fully clothed. [ 34 ] The next thing the complainant remembers is the Respondent removing her pants. He then forcefully grabbed her buttocks and penetrated her anus with his tongue. She also remembers the Respondent penetrating her vagina with his penis as she continued to lie face down on the bed. The complainant was aware of what was happening to her but could not move or speak. She did not consent to this sexual activity.

[ 35 ] The complainant next remembers waking up early the next morning lying face down on the Respondent’s bed, naked from the waist down. She observed the Respondent sleeping beside her. The complainant observed that her jeans were on the ground beside the bed with her underwear inside them. She got dressed and left the apartment. [ 36 ] The complainant drove home, walked her dog and then slept for approximately eight hours.

She then contacted the Respondent via text messaging and asked, “Did you at least use a condom last night?” The Respondent replied via text messaging, “Yes no worries, why did you leave without saying anything?” [ 37 ] The complainant spoke to her therapist, a rape crisis center and her sister. Later she attended Women’s College Hospital. She received medical attention and completed a Sexual Assault Evidence Kit. On July 21, 2008, the complainant contacted police to report the incident.

The Arrest and the Chronology prior to beginning the Questioning [ 38 ] On July 23, 2008, the search warrant was executed and Mr. Jorgge was arrested. [ 39 ] Officer Crozier called Mr. Jorgge on his cell phone and left several messages for him. At 7:24 p.m., the Respondent returned the officer’s call. She advised the Respondent that the police were inside his apartment and needed his presence. The Respondent asked what this was about. She advised that it was an urgent matter and needed his presence. Mr. Jorgge again asked what this was about and if everything was okay.

The officer advised that she did not want to discuss the matter on the phone and needed him to attend. Mr. Jorgge stated, “Should I prepare myself?” [ 40 ] At 8:20 p.m., Mr. Jorgge arrived at his apartment and was placed under arrest by Officer Crozier for sexual assault. He responded, “Sexual Assault!” Officer Crozier also advised the Respondent that he was being arrested for the charge of administer drug for sex. He responded, “Drug for sex? I never did drugs.” She explained the charge was for administering drugs, not using them and advised that the police will explain the allegations at the station.

She also advised Mr. Jorgge that he would be taken to 22 Division. The Respondent replied, “22 Division?” [ 41 ] Thereafter, Mr. Jorgge was hand-cuffed and given a pat down search. Officer Crozier then advised him of his rights to counsel. He was also advised that he did not have to say anything and that everything he said could be used against him in court. Officer Crozier advised that police were executing a search warrant and the original warrant was shown to Mr. Jorgge.

He inquired about his cat, and was advised that he could use the phone at the station to make arrangements, and that the police had given the cat food and water. [ 42 ] Mr. Jorgge was then escorted to the scout car. The Respondent was placed in the rear of the car and advised again of the reason for his arrest and his rights to counsel. [ 43 ] At 8:24 p.m., Mr. Jorgge was taken to 22 Division station. At 9:30 p.m., the Respondent had an opportunity to speak to duty counsel. [ 44 ] At 10:20 p.m., Officer Stapleton began the interview with Mr. Jorgge that concluded at 1:10 a.m. Only he and Mr.

Jorgge were present in the interview room. Parameters and principles of the Reid technique for questioning used during the interview with Mr. Jorgge [ 45 ] Officer Stapleton had just completed a two week course at the Canadian Police College in Ottawa about forensic interviewing techniques used primarily for suspects who are under arrest. He received training in the “Reid technique.” Ketchum P.C.J. discussed the nature of this technique in R. v. M.J.S. , 2000 ABPC 44 , 263 A.R. 38 at paras. 18-19 :

… This is an investigative technique pioneered by John E. Reid and Associates, Inc. of Chicago, Illinois, U.S.A. 19 The Reid technique involves a skilful development of “themes” and suggestions put to the suspect in a rapid fire and high intensity manner where the interrogator stays in complete control of the situation.

On the rare occasions when there is an opportunity for the accused to respond any disagreement is immediately ignored or overridden and, in particular, any denial is countered with a shift to another theme, or cutoff remark such as “we are beyond that point – we know you did it” this technique is used over 40 times.

Many of the “themes” place blame away from the accused, or minimize any international wrong doing. … [ 46 ] The objective of the application of the Reid technique taught at the program is to illicit confessions from those under arrest. [ 47 ] Officer Stapleton confirmed that the method taught includes various means to establish initial rapport between the interviewing officer and the accused while obtaining general information, followed by a direct accusation with respect to the charges outstanding. The interviewer asks not whether the crimes were committed, but why.

The interviewer closely controls the interview and interrupts the accused person if he or she is denying involvement. The interviewer develops several themes with respect to questioning that keep on being repeated or adapted as required throughout the interview. There are often monologues by the interviewer when the accused person is cut off if the accused denies the interviewer suggestions. The interviewer reiterates the theme or police theory. [ 48 ] The use of the Reid technique and the admissibility of confessions has been considered in several cases resulting in confessions.

In some cases, the statements were ruled to be admissible, and in some cases use of the technique resulted in the statements being ruled inadmissible as the Crown had not proved beyond a reasonable doubt that the statements were voluntary. The Problematic Aspects of the Interview raised by the Defence [ 49 ] The defence argues that Officer Stapleton used a threat or inducement during the questioning when the responses from Mr.

Jorgge were unsatisfactory, when he stated that “… Okay, ‘cause save me … save me from thinking that you are the kind of guy that does this … on a constant basis ‘cause I really don’t wanna make a whole … project out of you.” (Pages 243-244) This statement and others according to the defence implied that if Mr. Jorgge was not forthcoming in his answers that he would face other criminal prosecutions as he may be a serial predator, giving Mr.

Jorgge no choice about whether to answer the questions of the interviewer. [ 50 ] The defence also argues that the method of questioning and the length of questioning contributed to an atmosphere of oppression that form part of the context and circumstances to be taken into account in determining the question of voluntariness. [ 51 ] Clearly, the interviewer used the theme throughout the questioning whether this was a one-time incident, or whether Mr.

Jorgge was a serial sexual predator. [ 52 ] I accept the evidence of Officer Stapleton that, based upon the evidence, he and other members of the team had a genuine concern that Mr. Jorgge may be a sexual predator using Lavalife as a cruising ground to find vulnerable sexual partners. [ 53 ] When the search warrant was executed, the police located a cache of 16 pairs of used women’s underwear of different shapes and sizes in Mr. Jorgge’s closet. They also had information about the frequency and nature of Mr. Jorgge’s Lavalife communications with different women. The police subpoenaed Mr.

Jorgge’s Lavalife records for a 30 day period. He was, according to the Lavalife staff, the most frequent user of the site with numerous contacts with numerous women using the same basic cut and paste message. These facts raised concerns about repetitive predator - like conduct. [ 54 ] The concern that Mr. Jorgge may be a predator and that this was not an isolated incident was a theme present in the questioning: • “I don’t believe you. Also several other officers don’t believe you. The evidence that we have, the Lava life messages, the kind of messages, I don’t believe you.” (Page 109)

• “The charges are gonna go forth ‘cause we essentially had the evidence of her um, everything about you, about the Lava Life and everything which indicates that you are basically capable of doing this. Okay? Am I saying you’re capable? Are you a predator that goes out there…” (Page 116) • “Okay, okay listen to me. Okay? Wh’ – I’m actually starting to get the impression right now is unfortunately, is that maybe you’re not just a one-time incident. … No seriously, I’m starting to get the impression.

I’m starting to get the impression that this is something that you have done before.” (Page 206-07) • “I’m going towards the point of really, really going into your past, and really, like I’m getting concerned the fact that you may be doing this to other ladies. And I’m not shittin’ – ya, I’m not, I’m not shittin’ – ya to scare you. I’m actually thinking like you may be the kind of guy that does this more times.” (Page 214) • “I’m gonna ask you a few things. I don’t, ‘cause I, I’m still not sure if you’re being truthful.

I’m gonna ask you and this essentially, I’m asking you questions and really how I feel or I feel whether it’s a one-time thing or if you’re almost a serial, it really depends on your answer. Okay?” (Page 254) [ 55 ] I accept the evidence of Officer Stapleton that he believed that Ms. R. had been administered a drug in the wine offered to her at Mr. Jorgge’s apartment after she went to his apartment to use the washroom. Ms. R. was a 35 year old school teacher. Her evidence about the symptoms she experienced after drinking wine offered to her by Mr. Jorgge when she passed out lying on her stomach on Mr.

Jorgge’s bed unable to move or speak are consistent with the administration of a date rape drug, not with the consumption of wine. [ 56 ] Confronting Mr. Jorgge with the possibility that he was a serial sexual predator was not a ruse or trickery fabricating evidence by the police, but was a reasonably held belief by the interviewer based upon the evidence. [ 57 ] Defence counsel does not contest that, in the circumstances, the interviewer had an obligation to explore the issue of Mr. Jorgge being a potential sexual predator. [ 58 ] The Reid method utilizes the method of minimalization.

Notwithstanding the officer’s view of the situation, he offered less morally culpable scenarios to Mr. Jorgge to attempt to illicit a confession. Neither scenario was exculpatory, but one scenario may have appeared more palatable to an accused person. He suggested on several occasions that he was not suggesting that Mr. Jorgge did this a lot, but that he did it this one time.

This is seen, for example, at page 214 of the transcript where Officer Stapleton said “I walked in here thinking this is probably a one of [ sic ], you tried it one time…” The Reid method also uses themes that are woven through the interview and are repeated. [ 59 ] Office Stapleton offered Mr. Jorgge the choice between whether this was a one-time incident or a pattern of behaviour. This was a theme that employed minimalization. Throughout the early part of the interview, Officer Stapleton for the most part tried to suggest that while he was concerned that Mr. Jorgge may be a sexual predator, he felt this was Mr.

Jorgge’s first time doing these activities. For example, Officer Stapleton said: • “You’d be what, is this your first time? … Yes. Do I have to (UI) fifth, sixth, tenth time? No I don’t. … Okay, I’m not sitting here judging you saying you’ve done this a lot, but you did this time.” (Page 108) • “Am I saying you’re a bad guy? Hundred per cent not. Am I judging you in any way? No. But you did it this time….” (Page 114) • “Am I saying you’re capable? Are you a predator that goes out there or li’ – you know, does it like ten times, where you have girls coming over on a constant basis and drugging them?

No, I’m not saying that.” (Page 116) • “And that’s where you probably didn’t understand that when you take a drug and this is why I think this is not your, the fifth […]

or sixth, seventh time. This is probably your first time …” (Page 193) • “I honestly believe you. You’ve never done this before except for last Thursday night…” (Page 202) [ 60 ] At page 206 of the transcript, there is a change in the tone of the questioning from the theme that this was a one-time occurrence, to advancing the serial predator theory. Officer Stapleton challenges the demeanor of Mr. Jorgge as smiling and nonchalant. At page 216, he says that Mr. Jorgge is “calm cool and you’re collective.” [ 61 ] It was obvious that the interviewer was becoming frustrated by the inability of Mr.

Jorgge to commit to any answer. Officer Stapleton proceeded to challenge Mr. Jorgge and said he was changing his mind about this incident being a one-time thing, and now he was of the impression that Mr. Jorgge may be a sexual predator. The statements that the defence says are a threat or an inducement are as follows: • “I [ sic ] starting to feel that maybe Jimmy is not just a one-time guy because the reason why is because you can’t comment in any way or observation about her driving or what, how much she drank. You can’t comment.

I’ve asked you probably ten to twelve time, probably, ten to twelve times, when she’s on your bed how’s she doing?” (Page 209) • “Seriously, Jimmy, you play the game very well…I’m going towards the point of really, really going into your past, and really, like I’m getting concerned the fact that you may be doing this to other ladies. And I’m not shittin’ ya – ya, I’m not, I’m not shittin’ – ya to scare you. I’m actually thinking like you may be the kind of guy that does this more times. I walked in here thinking this is probably a one of [ sic ] you tried it one time …” (Pages 213-214) • “Jimmy.

Am I, is it, am I, am I looking at somebody who has done this like … I’m honestly starting to really honestly believe in my heart. You…I’m looking at somebody right now who has done this before. … This isn’t a one-time thing. … I am really looking at somebody…right now that’s done this before. … The question I have right now is, how many times?” (Pages 240-41) • “Okay, ‘cause save me … save me from thinking that you are the kind of guy that does this … on a constant basis ‘cause I really don’t wanna make a whole … project out of you.” (Pages 243-44) • “... I’m gonna ask you a few things.

I don’t, ‘cause I, I’m still not sure if you’re being truthful. I’m gonna ask you and this essentially, I’m asking you questions and really how I feel or I feel whether it’s a one-time thing or if you’re almost a serial, it really depends on your answers. Okay?” (Page 254) [ 62 ] At page 219 the interviewer confirms that he was changing his opinion about Mr. Jorgge, and began to believe that he was the serial sexual predator. He bases his change of opinion upon Mr. Jorgge’s cool, controlled demeanor.

He stated that: I’m basing it on, on everything, the Lava life, like you, your answers, um the way you are, the casualness of, the fact when, the fact when you were arrested. I was in the apartment and I was listening and there was no shock in your voice. There was no anger in your voice, like how dare someone accuse me of doing this. There was nothing. … [ 63 ] Somewhat later Mr. Jorgge did begin to answer some questions and provide some information about what happened that night, although he was steadfast in his evidence that he did not administer a drug to Ms.

R, and that he was not aware of her condition at the time they had sexual intercourse. In hindsight he acknowledged that when he had intercourse with her she may have been sleeping or passed out. Any information was given in the smallest of ways, using very carefully his choice of words: • “…she didn’t say anything so maybe, maybe it was selfish of me to, you know, ‘cause I was, I was kissing her and I was in the moment and I wasn’t…” (Page 245)

• “I don’t know that she was [passed out] either. At the moment I guess I wasn’t really paying attention.” (Page 255) • “And I, I, I, I did … make a bad call on, on on maybe because I felt, I guess I’m gonna say horny. That I was selfish and thinking of myself.” (Page 264) • “This is the poor judgment. This is me not knowing, this is my, just my poor judgment not knowing.

She didn’t say yes, she didn’t say no, she didn’t, I was just going with the flow of the evening.” (Page 279) • “…first of all ah she may have, yeah, she probably may have fallen asleep.” (Page 309) [ 64 ] Despite Officer Stapleton’s persistent questioning of Mr. Jorgge throughout the interview attempting to illicit an admission that Mr. Jorgge administered a drug, it is notable that Mr.

Jorgge continually resisted this suggestion, making, for example, the following statements: • “You don’t have to believe me” (Pages 105, 109) • “I’ve heard of date-rape but I don’t know what it is, what it’s called, what, where to get it, how, I don’t, I don’t know, I don’t, I did not give her any drugs” (Page 110) • “I’m just not gonna admit to something I didn’t do. I did not administer a drug, so my advice from legal counsel is not to talk about this and…” (Page 228) • “I’m jut [ sic ] denying these allegations.

I did not administer a drug.” (Page 229) [ 65 ] He continued to defend his integrity as a person, in spite of persistent questioning: “I know that I’m a good person. Okay? That I’m, I’m kind and gentle.” (Page 316) [ 66 ] Finally, I note that although using an apology to victims is part of the Reid technique, in this case it was Mr. Jorgge who first suggested the idea of an apology. At page 298, Mr. Jorgge said: “…that, but at any point in time I did not administer any drug. I’ve never administered anyone any drug and it was just a bad call in doing that and I will apologize to Ms.

R.” [ 67 ] The letter of apology is not an admission of committing a sexual assault or administering a drug, but is carefully written acknowledging an error of judgment and that he was not aware of her condition.

Application of the Facts to the Law Caselaw considering the use of the Reid technique of Questioning [ 68 ] Before considering the four part test in Oickle and the facts and circumstances of this case, I turn to consider other cases where the Reid interview technique has been used. [ 69 ] Police officers must be careful in the use of the Reid technique as it is a potent tool that if incorrectly or over enthusiastically used may bring into question the voluntariness of a statement given resulting in a ruling of inadmissibility. [ 70 ] It is clear that use of the Reid technique does not per se render a statement of an accused person inadmissible.

I refer to paragraph 14 of the decision of Justice Wein in R. v. Vicioso (2006), 70 W.C.B. (2d) 592 (Ont. S.C.J.) where she considers the use of the

Reid technique in the case before her, and as considered in other cases: The subtle and skilled use of police interrogation techniques such as the Reid technique adopted by to the police officer in this case, doesnot in and of itself dictate a finding of lack of voluntariness. Concerning the Reid technique, Carthy J.A., concurring with the majority inRegina v. Barrett (1993), (ON CA), 82 C.C.C. (3d) 266 (rev'd on other grounds (SCC), [1995] 1S.C.R. 752) stated: Trained police investigators understand the psychology of criminal behaviour and recognize symptoms of guilt or innocence.

They havemethods of questioning to reveal one or the other, and to draw confessions from the guilty. These tactics and techniques are described infull in Criminal Interrogation and Confessions, 3rd ed., Ingrau, Reid and Buckley. So far as I can see there is nothing offensive in thesetechniques, but the fact that I have never seen them outlined in viva voce evidence on a voir dire suggests that the police may be reticentin publicizing their methods. They need not be. [71] In Regina v. L.F., [2006] O.J. No. 658 (S.C.J.) Justice T. O'Connor stated: The Reid Technique of questioning is not inherently objectionable.

The police must be afforded the necessary latitude to perform theirresponsibilities to society. Inflexible rules must not be allowed to straitjacket their legitimate pursuits. Questioning suspects andwitnesses to a crime is an essential and often the most effective investigative tool the police possess.

However, the protection of theCharter rights of accused persons to fair treatment during investigations, including, for example, the right to be secure againstunreasonable search and seizure or to have used against them only confessions that are voluntarily given to the police, and many others,must be assiduously protected. The court's function is to find the fair and appropriate balance between these competing interests. (at para10) [72] Clearly there must be a balance between the rights of the accused and the need for the police to investigate crime and havetools at their disposal.

I echo the poignant words of Lamer J. (as he then was) at p. 697 of R. v. Rothman, (SCC), [1981]1 S.C.R. 640, stating that: [T]he investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. Theauthorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceitand should not through the rule be hampered in their work.

What should be repressed vigorously is conduct on their part that shocks thecommunity. [73] The use of the Reid technique when it involves monologues by interviewers and cutting off responses from the accusedmay raise special issues with respect to admissibility of a statement including potential prejudice in a jury trial. Admitting a statement insuch circumstances would allow the monologues of the theory of the Crown case to go before the jury, which may cause significantprejudice to an accused person when there is little probative value to the evidence. [74] In R. v. Barges (2005), 68 W.C.B. (2d) 251 (Ont.

S.C.J.), Glithero J. concluded that the statement given by the accusedwas inadmissible as the method used rendered meaningless the right to remain silent. This was a situation where the Crown case wasrepeatedly put to the accused without any meaningful response from the accused.

He stated at para. 90: The technique as used in this case is objectionable in that where anything is said by the accused, he is often not allowed to finish, as itappears to be the police perception that he is going to deny, or where he does say something, it is difficult to say what, if any, parts of thepreceding monologue he is responding to.

It illustrates the problems which lead trial judges to require counsel to ask only one question ata time, so that there is no difficulty in appreciating what the answer means, which would be the case if the questioner is allowed to rollseveral questions into one. [75] In the alternative, Justice Glithero declined to admit the statement as he found that it was not relevant.

He concluded thatthere was so little contribution by the accused, that what was in essence a police soliloquy had very little probative value or relevance,compared to the balancing against prejudice, and hence should not be admissible in evidence. [76] Justice Ricchetti considered the use of the Reid technique in R. v. Morgan, 2010 ONSC 3459, [2010] O.J.

No. 4385 atpara. 24, the “fundamental question is not what technique the police officer used but rather, considering all the circumstances of thepolice questioning and the statements given by the accused, whether the statement was voluntarily given.” He confirmed that it is notthe court’s role to evaluate the utility of the Reid technique, but rather to adjudicate on the admissibility of the end product. [77] One of the methods used in the Reid technique is to minimize the conduct of an accused person and to offer alternatives,including one that appears to be less morally blameworthy than the other.

There is nothing inherently objectionable in this approach to

questioning. (See Oickle at paras. 73-74 .) Clearly, the interviewer in this case was using this technique of minimizing by asking questions such as: “are you a guy that made a bad judgment in one case, or are you a serial sexual predator?” [ 78 ] Another decision very relevant to the issue of minimalization, and whether lines are crossed using this technique, is the decision of Justice Poupore in R. v. Jeffries , 2010 ONSC 4375 , [2010] O.J. No. 3532 at paras. 52 to 54 .

The interviewer in a homicide case gave the accused person two options, and the issue was whether using this technique of choosing between the lesser of two evil options caused the accused to confess. Poupore J. confirmed that the technique used was acceptable moral minimalization that did not render the statement given involuntary: 52 …These police tactics included giving the accused a choice: either she deliberately planned to kill the victim, or else it was a mistake on her part, for which she ought to take responsibility.

As the police officer put it, if she was not the type of person who could take responsibility for a mistake, then she was clearly the type of person who planned to stab the victim. The defence submission boils down to the accused being told, "Which type of person are you? Either you accept that you made a mistake, or if you do not, you are in effect telling me that this was a planned and deliberate stabbing."… 53 On my view of the video interview, I am unable to find evidence of vulnerability on the part of the accused to the extent that the defence argues.

Furthermore, I disagree that the accused's repeated right to silence was ignored.

Finally, and against the defence submission, I prefer to characterize the police tactics described above as moral minimizing which, as we have seen does not, in general, render a confession involuntary…. [ 79 ] Poupore J. confirmed that using this interrogation technique, and whether or not a statement is involuntary, must be considered in the context of the response of the individual accused to determine whether his or her will was overcome and the right to remain silent was compromised: 54 Whether or not an accused is vulnerable to the superior power of the state, such that she may be said to have been interrogated under oppressive conditions, is a question to be answered by taking into consideration the particularity of that individual and assessing the robustness of her constitution.

As the English Court of Appeal said in Prager , supra , the issue is whether or not the questioning "by its nature, duration or other attendant circumstances ... so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have remained silent" (at 1119)… [Emphasis added] [ 80 ] Whether circumstances constitute oppression sufficient to raise questions about the admissibility of a statement depends not only on the objective circumstances, but also on how the individual responds to the circumstances.

Poupore J. observed this at para. 54 of Jeffries , supra , as did Wein J. at para. 12 of Vicioso . Indeed, Iacobucci J. in Oickle stated that police have a “need to be sensitive to the particularities of the individual suspect.” (Para. 42) [ 81 ] The defence argued that the question of threats or inducements is an objective standard, and what Mr. Jorgge experienced is not relevant. [ 82 ] Respectfully, I disagree with the defence suggestion that consideration of a threat or inducement is solely an objective test and is “all or nothing”. [ 83 ] The decision of the Supreme Court of Canada in R. v.

Spencer , 2007 SCC 11 , [2007] 1 S.C.R. 500, makes it clear that the subjective response of the individual to the inducement is relevant in determining whether the statement was voluntary: 20 In my view, the trial judge made no error of law in concluding that no offer of leniency was made in respect of Ms. Harrison and that the withholding of a visit to her until at least a partial confession was made was an inducement that was not strong enough to render the accused’s statements inadmissible. It was a relevant factor that the accused had not “lost control of the interview to the point where he and Cst.

Parker [were] no longer playing on a level field ” (voir dire, at para. 35). In Oickle , at para. 87 , Iacobucci J. explicitly recognized that “[t]he absence of oppression is important not only in its own right, but also because it affects the overall voluntariness analysis.” 21 It was also relevant to the particularities of the respondent that, according to the trial judge, he was aggressive and a “mature and savvy participant”, and that he unsuccessfully attempted many times to secure “deals” with the police.

While none of these factors are determinative, it was not an error for the trial judge to consider them in his contextual analysis. [Emphasis added]

[ 84 ] Spencer makes it very clear that not every inducement will render a confession involuntary. A review of the particular facts in each case is necessary to determine whether that inducement led to an accused making an involuntary statement. [ 85 ] Justice Wein points out in Vicioso that the accused did not testify to suggest that the method of questioning resulted in him subjectively experiencing the situation argued by the defence, namely that his will was overpowered. [ 86 ] Similarly, in this case, Mr.

Jorgge did not testify in the voir dire . [ 87 ] However, after hearing argument and after I had advised counsel orally of my ruling, and during the evidence given at the trial, Mr. Jorgge did provide evidence about the statement. I will comment on this evidence in my reasons for judgment for the trial.

A Review of the Factors in Oickle [ 88 ] I turn to consider the factors outlined in Oickle . [ 89 ] The Oickle factors for determining whether a confession is voluntary are: 1) Whether threats or promises were made; 2) Whether there was an atmosphere of oppression; 3) Whether the accused had an operating mind; and 4) Whether there was “other police trickery”. [ 90 ] In oral submissions, counsel for Mr. Jorgge acknowledged that his primary submissions concentrated on the nature of the alleged threat/inducement.

Nonetheless, he argued that the overall atmosphere of the interview resulted in the conditions being oppressive. Counsel raised the length of the interview without a break being a factor of oppression, as well as the location of Mr. Jorgge in relation to the interviewer. He also raised the issue of Mr. Jorgge being far from the door to the interview room, and therefore he was not free to leave. [ 91 ] I find that none of these suggestions contributed to an atmosphere of oppression. Although Mr.

Jorgge did not receive a break or anything to eat for three hours, he was given a bottle of water, and at no time did he ask for a break or anything to eat. Nor do I find that the physical distance between the individuals in the interrogation room in any way oppressive. Mr. Jorgge remained cool and collected throughout the interrogation. Also, when comparing these facts to those in Oickle , where Iacobucci J. did not find oppression, this does not reach the threshold of being an oppressive atmosphere. [ 92 ] In Oickle the Applicant confessed to setting seven of eight fires.

The Respondent underwent a polygraph test for two hours after which he confessed to setting one fire. The Respondent was then interrogated by police for approximately 10 hours until nearly 3 a.m. in the morning. During this questioning he confessed to setting six more of the eight fires.

After approximately three hours of sleep, the Respondent agreed to accompany the police to the various sites of the fires for a re-enactment of how he did each one. [ 93 ] Speaking to whether this amounted to an atmosphere of oppression, Iacobucci J. stated, at para. 86: To hold that the police conduct in this interrogation was oppressive would leave little scope for police interrogation, and ignore Lamer J.'s reminder in Rothman , supra , at p. 697, that "the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules".

Quite simply, the police acted in a proper manner. Viewing the videotapes and listening to the audiotapes reveal that at all times the police were courteous; they did not deprive the respondent of food, sleep, or water (at para. 119); they never denied him access to the bathroom; and they fully apprised him of his rights at all times (see, e.g., A.R. at pp. 370, 497 and 650). They did not fabricate evidence in an attempt to convince him denials were futile. They comforted him, with apparent sincerity, when he broke down in tears upon confessing.

While the re-enactment was admittedly done at a time when the respondent had had little

sleep, he was already awake when they approached him, and was told that he could stop at any time. And indeed, the Court of Appealdid not directly claim that the police created an atmosphere of oppression sufficient to exclude the statements. [94] Defence counsel concentrated his submissions on the first of the factors from Oickle.

While I have found the officer’sconcerns about potentially repetitive conduct were genuine and reasonable, his statement of “… save me from thinking that you are thekind of guy that does this … on a constant basis ‘cause I really don’t wanna make a whole … project out of you…” could be interpretedas threatening harsher treatment if Mr. Jorgge did not answer his questions.

This could be interpreted both subjectively and objective asbeing a threat or veiled inducement. [95] In considering the impact of the alleged threat or inducement the words of Iacobucci J. from para. 57 of Oickle, should bekept in mind that : In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess.

Thisbecomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise areasonable doubt about whether the will of the subject has been overborne. [96] Although the confrontation by the interviewer and the obvious expression of frustration may have resulted in Mr. Jorggeanswering questions about the sexual interaction that occurred with Ms. R., from my observations of the video of the statement at notime was Mr. Jorgge’s will broken or did he succumb to suggestions of the police potentially tainting the veracity of what was said.

Mr.Jorgge was careful and measured throughout the interview, including his responses after being confronted with the “project” statement. [97] I consider Spencer to be instructive in this regard. Justice Deschamps stated, at para. 15, that “it is the strength of theinducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextualanalysis into the voluntariness of the accused’s statement.” [98] The comment about making Mr. Jorgge a project was an unwise choice of words.

Officers using the powerful Reidtechnique of interrogation must be trained to be careful in their choice of words. [99] However I conclude that this comment, though clearly unwise, did not affect Mr. Jorgge’s ability to choose whether or notto speak to the interviewer. There is no evidence that Mr. Jorgge was overwhelmed by the police tactics, the atmosphere or thethreat/inducement. Mr. Jorgge remained calm and cool to the end of his interview and was careful and measured in what he was preparedto concede. [100] I consider the observations of Watt J. (as he then was) in R. v. Roy, [2002] O.J.

No. 5541 (S.C.J.), aff’d (2003), (ON CA), 180 C.C.C. (3d) 298 (Ont. C.A.) to be instructive. This is another case involving a lengthy interrogation (albeit, at eighthours, much longer than the case at bar), where the accused answered many police questions and refused to answer others. The policewere aggressive but in no case did Justice Watt find that the accused felt compelled to answer a question against his wishes. Rather, HisHonour held, at para. 218: “Roy knew he had a choice. He made it. He decided, for his own reasons, what he would say, and when hewould say it.” Consequently, the statement was admissible.

These observations in the Roy decision appear to apply to the dynamics ofthe interview in this case. [101] There is nothing to suggest that Mr. Jorgge did not have an operating mind. He was steadfast to the end that he did notadminister a drug to Ms. R., and that he was unaware of Ms. R’s state when he had sexual intercourse with her. Any admissions werecontrolled and limited. At best he conceded that his conduct was a selfish error of judgment. He was calm throughout the interview,exhibited no emotion and my observations of the videotape was that he maintained control of what he wished to say throughout.

At onepoint Officer Stapleton observed that Mr. Jorgge had a “strong personality”. I agree with this observation. At no time was Mr. Jorgge’swill overpowered. [102] The police did not “trick” Mr. Jorgge into making any statements. For the reasons outlined I am satisfied that OfficerStapleton believed that Mr. Jorgge may well be a sexual predator and that his questions reflect this belief.

I note that Iacobucci J. foundthat this factor rendering a statement involuntary due to trickery would only be reached in rare circumstances, similar to what Lamer J.said in Rothman – that of “shocking the conscience of the community.” This factor from Oickle is not in issue here.

[ 103 ] Mr. Jorgge suggested that he would like to apologize to Ms. R. He wrote the apology, which was measured and careful in what it contained. [ 104 ] It is of note that after writing the apology letter and at the conclusion of the interview, Officer Stapleton and Mr. Jorgge shook hands. This is not a gesture of a man overwhelmed. [ 105 ] For these reasons I conclude that the Crown has proven beyond a reasonable doubt that the statement made by Mr. Jorgge was voluntary.

The statement is very relevant to the question of consent, and its probative value exceeds any prejudice in admitting the statement into evidence. J. Wilson J Released: December , 2010 CITATION : R. v. Jimmy Alfredo Jorgge, 2010 ONSC 6272 COURT FILE NO.: 09-50000459-0000 DATE: 20101203 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JIMMY ALFREDO JORGGE Respondent RULING CONCERNING ADMISSABILITY OF STATEMENT ____________________________________________ Released: December , 2010