) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 3327

CITATION : R. v. Thompson, 2013 ONSC 3327 COURT FILE NO.: 12-4-684-0000 DATE: 20130610 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – AARON THOMPSON Respondent ) ) ) ) ) ) ) ) Craig Harper , for the Crown Brian Ross , for the Respondent ) ) HEARD: June 4, 5 and 6, 2013 L. A.

Pattillo J. (Orally) Introduction [ 1 ] Aaron Thompson is charged with three counts of armed robbery and 13 counts involving possession of firearms arising out of the theft of 10 guns during a home invasion on December 24, 2011 and the subsequent seizure by the Toronto Police Service (TPS) of four of the guns during the execution of a search warrant on December 31, 2011. [ 2 ] At the outset of the trial, the Crown requested a voir dire to determine the admissibility of three oral statements and one video statement given by Mr.

Thompson to the police at 32 Division in the early hours of January 1, 2012, following his arrest. [ 3 ] For the reasons that follow, I have concluded that the Crown has established on the evidence beyond a reasonable doubt that the oral statement made by Mr. Thompson to Officer Young at approximately 12.20 am on January 21, 2012 was voluntary and it is accordingly admissible at the trial. I am not satisfied, however, that the Crown has met their onus in respect of the two oral statements and the video statement that follow. As a result those statements are not admissible in evidence at the trial. Facts [ 4 ] Mr.

Thompson was arrested in Mississauga at approximately 10 pm on December 24, 2011 for possession of guns. He was transported to 32 Division where he was booked and placed in Interview Room 2 in the Major Crime Unit (“MCU”). [ 5 ] At 9:56 pm on December 24, 2011, Detective Michael Mullen and his partner Detective Constable Liam Wauchope from the TPS Holdup Squad along with other officers executed a search warrant at 20 Hotspur Road, Apartment 101 in the City of Toronto. During the search, four firearms were seized and the three occupants of the apartment were arrested.

The individuals were taken to 32 Division where they were booked and placed in interview rooms. The seized firearms had been stolen from a gun collector, along with six other guns, during a violent home invasion on December 24, 2011. The search concluded at approximately 1 am on January 1, 2012. [ 6 ] Detective Warren Young who was also a member of the Holdup Squad, attended at 32 Division at 12:10 am on January 1, 2012 to assist with the processing. He was not involved in the execution of the search warrant or the arrest of Mr. Thompson.

At 12:20 am, while he was in the MCU at 32 Division, he heard a knock on the door of Interview Room 2. He was aware that Mr. Thompson was under arrest and in the room. He opened the door and Mr. Thompson said he wanted to go to the washroom. [ 7 ] Officer Young escorted Mr. Thompson down the hall about 100 feet to the washroom. Along the way, Mr. Thompson spoke to him and said: “I got 11 kids, I can’t go down for this. Someone brought those guns over. I didn’t have anything to do with the robbery. I can’t go down for this.” Nothing else was said. Mr.

Thompson used the washroom for about a minute, following which Officer Young escorted him back to Room 2. At 12:23 am, he placed him back in the room and told him to sit and relax and someone would come to see him. [ 8 ] Officers Mullen and Wauchope arrived at 32 Division shortly after the completion of their search of apartment 101 at 20 Hotspur. Among other things, they met with Officer Young in the MCU. Officer Mullen said that Officer Young told them that Mr. Thompson didn`t want to speak with a lawyer and wanted to speak with police.

[9] At approximately 2:37 am on January 1, 2012, Officers Mullen and Wauchope entered Room 2. Both Officerssaid that Mr. Thompson immediately put his finger beside his lips, said “sush” and pointed to the wall adjoining another conferenceroom. Officer Mullen asked Mr. Thompson if he had a concern about speaking to them there and he said yes. At 2:38 am they then tookMr. Thompson down the hall 100 to 150 meters to a small conference room. [10] Officer Mullen testified that when they got to the conference room, he told Mr. Thompson that he needed toexplain a few things to him. Mr.

Thompson said that he didn’t mind talking but he was nervous and wanted to talk off the record anddidn’t want the officer writing anything down. At that point, Officer Mullen stopped writing. He said he then advised Mr. Thompson ofthe charges he was facing, gave him his rights to counsel and the standard cautions. He requested that he give them a video statement.Mr. Thompson indicated he did not want to speak to his lawyer. He also expressed concerns about giving a video statement and made itclear that he did not want to do that. Mr.

Thompson told the Officers that he had nothing to hide and stated that he didn’t want to remainin custody because he has 11 children who depend on him. Officer Mullen said that he explained to him that he couldn’t be releasedgiven the offences involved. [11] During the discussion, Mr. Thompson told the officers in some detail how he came to be involved with theguns found at 20 Hotspur and who it was he dealt with. He offered to recover the missing guns if he got back on the street.

When theOfficers asked him how he was going to get the guns back, he told them he had sold four of the guns on the street and was owed moneyfor them. Mr. Thompson denied he knew anything about the home invasion. He also said that tenant at 20 Hotspur knew nothing aboutthe guns. [12] Officer Mullen denied that he or Officer Wauchope had made any threats or offered any inducements to Mr.Thompson during the course of their discussion in the conference room. [13] Officer Wauchope evidence of what occurred both in Room 2 and in the conference room was essentiallysimilar to Officer Mullen`s.

He said they only went into Room 2 to advise Mr. Thompson of the charges. When they got into theconference room, he said Mr. Thompson was nervous and concerned for his safety. Mr. Thompson wanted to be released and when theytold him that was not going to happen, Mr. Thompson then told them everything. [14] The discussion in the conference room with Mr. Thompson lasted approximately 52 minutes following whichthe Officers took him to a room in 32 Division that was equipped with video equipment. Beginning at 3:37 am, Mr.

Thompson gave avideo statement in response to questions put by the officers. [15] Following the video statement, Officer Wauchope escorted Mr. Thompson back to Room 2 in the MCU.Officer Wauchope said he spoke with Mr. Thompson for 15 to 20 minutes during which time he obtained some additional informationconcerning the phone number of a suspect. [16] At around five or six am, after completing the required paper work, Officers Mullen and Wauchope returned tothe Holdup Squad Office. Officer Mullen prepared 14 pages of notes summarizing what was discussed with Mr.

Thompson during their52 minutes in the conference room. The notes are not word for word. At approximately 6:30 am, Officer Wauchope read OfficerMullen’s notes and concurred they were accurate. He made no changes and initialled each page. He made no notes of his own about thediscussion with Mr. Thompson in the conference room. [17] Mr. Thompson also testified. He agreed with Officer Young’s evidence about what he said on the way to thewashroom. He said it was in response to a comment by Officer Young to the effect that he was looking at a lot of time for this.

Hedenied that he put his finger to his mouth and said shush when the two officers entered Room 2. He said the officers told him they weregoing to take him to a more comfortable room. [18] Mr. Thompson said the first thing he remembered when they got into the conference room was the officersasking for his help and commenting that his criminal record was not that bad. He told the officers that he was willing to talk to them ifthey let him out on bail. They said it depended on whether his information panned out. He told them he did not want to speak on therecord until they had a deal.

He was afraid for his safety and that of his family. He agreed that during the discussions that he declined theOfficers numerous requests to make a video statement. [19] He said their discussion resulted in an agreement between them that he would answer their questions, gavethem a video statement and recover the missing guns, and in exchange, they would let him out on bail. He said they made clear to himthat he would still be charged for possession of the guns. [20] After their agreement, Mr. Thompson answered the officers’ questions.

He told the officers how he becameinvolved with the guns found at 20 Hotspur and gave them names and locations of the people he dealt with. He agreed that what he toldthe officers as reflected in Officer Mullen`s notes was substantially true except for a few things including that he had not been read hisrights or cautioned and he had not sold any of the guns on the street or was owed money for them. At the end of the discussion in theconference room, they went to the video room. Before the video was turned on, the Officers told him not to say anything about theagreement on the video.

They told him they would only ask him a few questions but they asked him a lot more. [21] When the video was over, he answered some additional questions from Officer Wauchope which he felt waspart of the agreement. After that, the Officers told him they were sorry but they had made a mistake and because he had an outstandingweapons prohibition order for five years, they could not release him on bail and the deal was off. He said he was upset and angrybecause he felt he`d been conned by the Officers. The Law [22] Statements made to a person in authority are inadmissible unless they are voluntary.

The rationale behind theconfessions rule is both reliability and fundamental fairness in the criminal process: R. v. Hodgson, (SCC), [1998] 2

S.C.R. 449, 127 C.C.C. (3d) 449 (S.C.C.). [23] Prior to a statement being admitted at trial, the Crown must establish, beyond a reasonable doubt that it isvoluntary: R. v. Moore-McFarlane (2001), (ON CA), 160 C.C.C. (3d) 493 (Ont. C.A.). The inquiry into voluntarinessis contextual in nature and all relevant circumstances must be considered: R. v.

Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3, 147C.C.C. (3d) 321 (S.C.C.) at para. 47. [24] The determination of whether a statement is voluntary requires consideration of several factors including themaking of threats or promises, oppression, the operating mind doctrine and police trickery: R. v. Spencer, 2007 SCC 11 , [2007]1 S.C.R. 500, 217 C.C.C. (3d) 353 (S.C.C.) at para. 12, referring to Oickle. [25] There is no question that police are permitted to speak with a suspect in aid of a criminal investigation.

To theextent, however, that their questioning is calculated to overcome the freedom of the will of the suspect, that is not permitted and anystatement obtained will be inadmissible. See: R. v. Precourt (1976), (ON CA), 18 O.R. (2d) 714 (C.A.) per Martin J.A.at p. 721. [26] Similarly, inducements made by the police may also result in a statement being held inadmissible. In Oickle,Iacobucci, J., at para. 57 considered when an inducement will become improper: 57 In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession.Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspectthat it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or incombination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App.

R. 207 (C.A.), at p. 212, particularly apt: Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an earlyadmission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even ifpromoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confessionwould be rendered inadmissible. This is not the law. In some cases the hope may be self-generated.

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

The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in theform of a threat or a promise. [27] While there is no absolute rule requiring the recording of statements, the Crown bears the onus of establishinga sufficient record of the dealings between the suspect and the police: Oickle at para. 46; Moore-McFarlane at paras. 64 and 65.

Indiscussing the onus on the Crown in such circumstances, Charron J.A., as she then was, stated at para. 65 in Moore-McFarlane: However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onusmay be readily satisfied by the use of audio, or better still, video recording.

Indeed, it is my view that where the suspect is in custody,recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to themaking of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be amatter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has beenprovided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt. [28] The statements by Charron J.

A. in Moore-McFarlane concerning the importance of recording interactionsbetween the police and suspects have been subsequently adopted and commented upon by the Court of Appeal. In R. v. Ahmed (2002), (ON CA), 170 C.C.C. (3d) 27 (Ont. C.A.), the Court stated at para. 19: 19 The reason our courts have focused so heavily on the desirability of recording the interactions between police officers and accusedpersons upon arrest, is to avoid these credibility contests at trial on the crucial issue of whether any coercion, oppression or inducementled to the accused to make the impugned statement.

This court held in Moore-McFarlane that as long as recording equipment isavailable, the failure to record will generally preclude a finding of voluntariness, except in the circumstance where the police officer didnot set out to interrogate the suspect. Consequently, the question of the officer's intention is also a critical one on the voir dire.

Therefore,where there is no recording, and the issue of the officer's intention is in dispute, that is one of the circumstances where the trial judgemust carefully analyze the conflicting evidence and give reasons which clearly explain why the judge either accepts the evidence of thepolice officer or officers, or conversely, why that evidence is rejected or is insufficient to satisfy the judge beyond a reasonable doubt. Discussion [29] The issue which arises from the evidence is whether Officers Mullen and Wauchope offered Mr.

Thompson aninducement to obtain his statement (and the subsequent video statement and statement to Officer Wauchope) which was strong enough toraise a reasonable doubt as to whether Mr. Thompson`s will was overborne (Oickle, para. 57). [30] I turn first to the evidence of Mr. Thompson. While I accept some of his evidence of what occurred at 32

Division in the early hours of January 1, 2012, I am not prepared to accept his evidence in its entirety. I have reached this conclusion based on a number of concerns I have about his evidence. He said that the first time he was read his rights or cautioned was on the video but the booking video sometime earlier that evening clearly shows that is not right.

He said he didn`t know why he had been arrested that night but his brief conversation with Officer Young on the way to the washroom clearly shows he was aware that he was arrested in respect of the guns found at 20 Hotspur and that those guns were connected to a robbery. [ 31 ] Even though I am not prepared to accept Mr. Thompson’s evidence in general, it does raise in my mind a reasonable doubt as to whether an agreement was reached between him and the Officers concerning his evidence.

There is no question that his evidence about the “deal” is vague and somewhat difficult to accept given it was reasonably obvious in the circumstances that he would not be released. On the other hand, the evidence of the Officers and Mr. Thompson is in agreement that he did not want to give a video statement because he was afraid for his safety and that of his family. He declined to give a video statement a number of times. Yet at some point, he agreed.

Given the circumstances, I can only conclude it was because some sort of agreement was reached between him and the Officers. [ 32 ] The fact that there was some sort of an agreement is reflected, in my view, at the end of the video statement. At page 33 of 35 in the transcript, Mr. Thompson states: “No you guys are making me nervous because you are going a little bit more then what you said you know what I mean and I don’t know what you guys are up too man.” Officer Mullen responded: “Okay”. Mr. Thompson said; “You know what I mean.” Officer Mullen then said he had no more questions. [ 33 ] Accordingly, Mr.

Thompson’s evidence in my view raises a reasonable doubt as to whether, during his 52 minute unrecorded discussion with the Officers, there was some sort of a deal reached that resulted in him giving a statement to the Officers that he would not otherwise have given. [ 34 ] Even if I was not prepared to accept Mr. Thompson’s evidence at all, in my view, the Crown’s evidence fails to establish beyond a reasonable doubt that the information given by Mr. Thompson during the 52 minute unrecorded discussion and his agreement to give a video statement was voluntary. [ 35 ] Mr.

Thompson was in custody and video recording equipment was readily available. In my view, when Officers Mullen and Wauchope entered Room 2 at 2:37 am on January 1, 2012, they intended to interrogate Mr. Thompson. Officer Mullen said they knew from Officer Young that Mr. Thompson was willing to talk to them. And they wanted to obtain information in respect of the missing guns and the home invasion. They had no suspects at that point. I don’t accept Officer Wauchope’s evidence that they entered Room 2 to simply advise Mr. Thompson of the charges he was facing.

As a result, the 52 minute unrecorded discussion with Mr. Thompson in the conference room is suspect: Moore-McFarlane at para. 65 . [ 36 ] Further, by taking Mr. Thompson to another room without video equipment, and then agreeing to go “off the record” and not take any notes, it is clear in my view the officers gave no thought to making a reliable record of their discussion. The Crown submits that they offered to have Mr. Thompson speak on video but he refused. That offer was made, however, after they had taken Mr. Thompson to the conference room.

In my view, in the circumstances here where they intend to speak with Mr. Thompson and then deliberately take him to another room without video recording equipment, the subsequent offer to video the statement does not suffice. [ 37 ] In my view, there is not a reliable record of the discussion. Officer Mullen’s notes were done a few hours after the discussion with the video statement intervening. The notes are a

summary at best. They do not cover everything said over the 52 minutes. They are not verbatim. In particular, they do not refer to any discussion concerning an agreement (or lack thereof) to provide information and give a video statement given Mr. Thompson’s initial adamant refusal. When asked in cross-examination why Mr. Thompson changed his mind and agreed to given them a statement and go on video, they both said that they didn’t know but that Mr. Thompson became “comfortable” with them.

I have difficulty accepting that answer given the other evidence I have referred to that indicates some sort of agreement to provide the information. Further, Officer Mullen’s evidence, apart from his recollection is based on his notes, which are not a complete

summary of the discussion with Mr. Thompson. It was also clear to me from his testimony that Officer Wauchope had no independent recollection of the specifics of the discussion. He never explained why he didn`t prepare his own independent notes of the discussion. [ 38 ] It may very well be that the Officers didn’t give Mr. Thompson any inducement that caused him to speak to them and give them a video statement. The problem is there is no reliable record of the discussion in the conference room. Nor is there any indication at the start of the video statement that there was no agreement or inducement precluding it.

In the absence of reliable evidence of what transpired in the conference room, I am unable to conclude that the statement given by Mr. Thompson to the Officers during the 52 minute discussion was voluntary. Conclusion [ 39 ] The defence concedes that Mr. Thompson’s statement to Officer Young was voluntary. I agree. It was made spontaneously and in the absence of any inducement. It was also recorded in Officer Young’s notes immediately afterwards verbatim which Mr.

Thompson agreed to. [ 40 ] On the other hand, for the reasons given, I conclude that the Crown has not met its onus of establishing beyond a reasonable doubt that the 52 minute unrecorded statement was voluntarily given. Further, as the subsequent video statement and information provided to Officer Wauchope resulted from the unrecorded discussion, it follows that the Crown has failed to establish that they too were not given voluntarily. Accordingly none of those statements will be admitted into evidence at the trial.

L. A. Pattillo J. Released: June 10, 2013 CITATION : R. v. Thompson, 2013 ONSC 3327 COURT FILE NO.: 12-4-684-0000 DATE: 20130610 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – AARON THOMPSON REASONS FOR JUDGMENT PATTILLO J. Released: June 10, 2013