R. v. Korof, 2016 ONSC 7656

CITATION : R. v. Korof, 2016 ONSC 7656 COURT FILE NO.: 15-1157 DATE: 2017-02-07 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) J. Goulin, for the Crown ) Applicant ) ) - and - ) ) ) NENAD KOROF ) ) ) D.

Paradkar, for the Accused (Respondent) Respondent ) ) ) ) ) ) HEARD: October 18, 19, 2016 RULING RE: VOLUNTARINESS OF ACCUSED’S VIDEOTAPED STATEMENT OF MARCH 13, 2014 Fragomeni J. [ 1 ] The Crown seeks an order admitting into evidence as voluntary the Respondent, Nenad Korof’s (hereinafter referred to as Korof) statement to the police made on March 13, 2014. [ 2 ] The grounds for the application are set out by the Crown in her Notice of Application as follows: - Korof was interviewed on video initially by Constable Jason Sweeting and subsequently by Constable Stephen De Cordova of the Peel Regional Police.

The interview commenced at 7:28 p.m. on March 13, 2014 and ended at 10:48 p.m. on the same day - the Peel Regional Police were at all times courteous and respectful in their interactions with Korof

- there were no threats, promises or inducements at any time - no force was used at any time - none of the statements or utterances were received in circumstances of oppression - Korof was clearly of an operating mind during all dealings with the police - On the video, it is clear that Korof understood his rights and chose to answer the questions. Position of the Defence: [ 3 ] The defence submits that Korof was subjected to promises, threats and inducements that render the statement involuntary.

The promise was that if he co-operated with the police and gave them what they wanted they would go lightly with him and he would be released that night. [ 4 ] Although there was no mistreatment of Korof, the video demonstrates that Constable De Cordova used sarcasm and treated Korof in such a manner that the conditions of the interview were oppressive. Voir Dire Evidence: [ 5 ] In order to provide the factual context for the discussion that follows it is useful to review the oral testimony of both officers as well as the testimony of Korof. [ 6 ] The video statement was filed at the Voir Dire as Exhibit A.

The accompanying transcript was filed as Exhibit B. Cst. Stephen De Cordova [ 7 ] Cst. De Cordova is a member of the Peel Regional Police Force and at the relevant time in March 2014 he was in the Major Drugs and Vice Unit. He is the Officer in Charge of this investigation. [ 8 ] Cst. De Cordova’s first involvement in this investigation was on March 4, 2014. He was at 11 Division and he was advised by Detective Curtis that a female had attended at 11 Division advising that she had been pimped out and that she had had enough. Her name was F.E. He took a lengthy sworn KGB Statement from F.E. In

summary, she advised Cst. De Cordova that Korof had procured her into prostitution and that he was controlling her in that regard. The activities she was engaged in included stripping; providing sexual services at the strip club; escort services and webcam sex. [ 9 ] As a result of this information, Cst. De Cordova along with Cst. Jason Sweeting attended at the residence of Korof on March 13, 2014 to arrest him. They attended at his residence at 5:46 p.m. He saw a single white male in the garage and asked if he was Nenad Korof. Korof stated he was. [ 10 ] Cst.

De Cordova touched his shoulder and arrested him and explained what the charges were. He conducted a cursory pat down search. Korof’s identification was in the house. Korof asked if they could go inside the house to lock it and for him to retrieve his identification. They did so and in the front foyer was a bag with his wallet inside. Korof had been handcuffed in the rear so the officers retrieved his wallet. He was then escorted to the unmarked police vehicle. The officers had initially identified themselves as police officers and had on their badges and warrant cards. [ 11 ] At 5:50 p.m. to 5:54 p.m. Cst.

De Cordova read to Korof the rights to counsel and primary caution. When he read the rights to counsel Korof indicated to Cst. De Cordova that he wanted to talk to him but Cst. De Cordova said no to that in order to protect both of them and told Korof he should speak to a lawyer first. [ 12 ] With respect to the caution, Cst. De Cordova told Korof he didn’t have to say anything. Whatever he did say could be used in evidence against him. [ 13 ] At 6:05 p.m. he was transported to 11 Division. During the drive to 11 Division he had no conversation with Korof.

By 6:30 p.m. they were still sitting on the ramp waiting to go into the station. Cst. De Cordova had been sitting in the back of the police vehicle with Korof and Cst. Sweeting was driving. Twenty-five minutes on the ramp is a long time so Cst. De Cordova exited the vehicle and went inside the station to see if their entry could be expedited. [ 14 ] They finally entered and Korof went through the usual booking process. At 6:45 p.m. duty counsel was contacted. Korof was given an opportunity to speak to duty counsel in private. [ 15 ] Korof was taken to the video room at 7:44 p.m. [ 16 ] At no time did Cst.

De Cordova make any promises or threats to Korof. Cross-Examination by the Defence: [ 17 ] Cst. De Cordova acknowledged or confirmed the following: − he gave Korof has rights to counsel and caution after he placed Korof in the back seat of the police vehicle

− he did not make a note of the caution as it is something he always says to an arrested person and he has it by memory. He does not have to read it from a notebook. Cst. De Cordova acknowledges he read the primary caution only as follows: You do not have to say anything in answer to the charges. Anything you do say can be used in evidence against you − when he was given his rights to counsel he asked Korof if he had a lawyer and Korof said no − Cst.

De Cordova never talked trash to Korof while they were in the police vehicle on the way to 11 Division − at 11 Division he called duty counsel and duty counsel called Cst. Sweeting back − Cst. De Cordova never made any promise to Korof about co-operating. There was no need to do this; the case was strong without the need for any statement from Korof. [ 18 ] In re-examination Cst. De Cordova confirmed that he made a specific note that when Korof said he wanted to talk when he was given the caution in the rear of the police vehicle he told Korof no, he had to wait until he spoke to duty counsel. Cst.

Jason Sweeting: [ 19 ] Cst. Sweeting is also a member of the Peel Regional Police and in the Major Drugs and Vice Unit. [ 20 ] On March 13, 2014 he attended with Cst. De Cordova to effect the arrest of Korof. They attended at Korof’s residence at 5:30 p.m. [ 21 ] The garage door was open. Korof came out of the garage. The Officers were in an unmarked police vehicle. They were in plain clothes with their badges and warrant cards on. [ 22 ] Korof collected his wallet and identification from inside the house. He was escorted to 11 Division. Cst. Sweeting was driving. Cst.

De Cordova had provided Korof his rights to counsel and caution in the police vehicle. [ 23 ] They arrived at 11 Division at 6:00 p.m. They waited on the ramp for a bit before going in. [ 24 ] At 7:05 p.m. Korof spoke to duty counsel. At 7:15 p.m. he took Korof to the cell area and then up to the video room for the interview. [ 25 ] He made no threats, promises and offered no inducements. Cross-examination: [ 26 ] In cross-examination Cst. Sweeting acknowledged or confirmed the following: − his notes refer to RTC which denotes rights to counsel and caution. Cst.

De Cordova gave those while in the police van − on the drive to 11 Division he could hear some conversation between Korof and Cst. De Cordova but he really was not paying attention to it − He did not hear the words “You’re fucked” “You’re in trouble trying to be a bad ass pimp” from Cst. De Cordova. Nenad Korof Examination-in-Chief [ 27 ] His first contact with the police was on March 13, 2014. At 5:00 p.m. he was at his home inside going to a business meeting. He heard the doorbell ring. He was coming out of the garage. Two police officers identified themselves and asked if he was Nenad Korof and he said yes.

They said he was under arrest for procuring a person and exercising control. [ 28 ] His hands were handcuffed in the rear. Korof asked if he could lock the house. They said sure and they went inside and he grabbed his keys and wallet. [ 29 ] Korof was placed in the police vehicle in the backseat with Cst. De Cordova and Cst. Sweeting was driving. [ 30 ] He had been given his rights to counsel when he was being handcuffed. He was not given a caution. [ 31 ] While in the back of the police vehicle Cst. De Cordova said the following to him: − you’re fucked − you’re trying to be a badass pimp − Cst.

De Cordova then paused and was smirking and making faces. Then he said if you co-operate and talk we’ll go lightly and you can go and we’ll finish this tonight. [ 32 ] Korof was shocked and angry. He was not feeling comfortable. He was terrified. He had never been in this situation before. Korof thought that if he co-operated he would be let out that night. [ 33 ] At 11 Division he spoke to duty counsel. He was then taken to the video room by Cst. De Cordova who told him if you speak and co-operate we will make this go lightly.

[34] The video statement felt like it took 40 minutes to an hour. In fact it lasted over three hours.

Cross-examination by Crown: [35] In cross-examination Korof acknowledged or confirmed the following: − at no time did he sustain any injuries as a result of his interaction with the police − at no time did he file any complaints against the police − he had no issues with how he was treated by the police at the time of arrest at the house − he had no complaints about the advice he received from duty counsel − duty counsel told him not to talk and Korof knew he did not have to talk − throughout the video he never confesses to being a pimp − in-chief he said he was advised in the garage of his right to talk to a lawyer or guidance counselor.

He explained that it was a slipof the tongue that he said guidance. He didn’t mean to say that. − he could not recall being given the toll free 1-800 # for legal aid. He could also not recall Cst. De Cordova asking him if he had alawyer to which Korof said “no” − Korof confirmed that he knew he did not have to speak to the police − Korof said this was a new experience for him. He did acknowledge a prior involvement with police when police executed a searchwarrant at his house. He was not arrested. He had a gun put to his head, slammed to the ground, and handcuffed. He thought it was amistake.

This incident was not as terrifying as being called a pimp by Cst. De Cordova − Korof felt that if he gave the police what they wanted and answered the questions they would go lightly and let him go − as set out on page 4 of the transcript, he knew he would be going to bail court the next morning. He was not being released. − at page 224 of the transcript it is again made clear to him he will be going to Bail Court in the morning.

There is no mention he isgoing to be released and to that he said okay − he knew he did not have to talk or his lawyer told him not to and he acknowledges this at pages 62 and 63 of the transcript. Analysis and Conclusions Governing Legal Principles [36] In R. v. Mohamad, 2014 ONSC 1348 McIsaac J. sets out the following at paras. 13 and 14: 13 Both sides have referred me to the controlling judgment of the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38 ,[2000] 2 S.C.R. 3.

I glean three basic principles from the judgment of Iacobucci, J.: - the confessions rule has the twin goals of protecting the rights of the accused without unduly limiting society's need to investigate andsolve crimes [para. 33]; - the entire circumstances surrounding a confession must be considered in assessing voluntariness [para. 68]; and - although the doctrines of oppression and inducements are primarily concerned with reliability, the confessions rule also extends toprotect a broader conception of voluntariness "that focuses on the protection of the accused's rights and fairness in the criminal process"[para. 69]. 14 To these basic concepts I would graft the Charter guarantee of the right to silence, the breach of which may impact upon theexercise of free will in the making a statement: see R. v.

Singh, 2007 SCC 48 , [2007] 3 S.C.R. 405 at para. 53. In that passage,Charron, J. for the bare majority made it clear that a crude quantitative calculation of assertions did not suffice. On the other hand, the 18"unequivocal" assertions of the right to silence would have led to exclusion according to the minority judgment of Fish, J. Nonetheless,the police are not required to retreat automatically once a detainee expresses a desire to remain silent: see R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 at para. 63. [37] In R. v.

Davis, 2011 ONSC 5564 van Rensburg J., as she then was, stated the following at paras. 11, 34 and 36: 11 The test in Oickle should be understood by reference to two subsequent Supreme Court of Canada decisions: R. v. Singh, 2007 SCC48 , [2007] 3 S.C.R. 405 and R. v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310. These cases emphasize that the right tosilence is encompassed in the confessions rule. In her opinion for the majority of the Court in Singh, Charron J. noted at para. 35:

Ten years later, this Court in Oickle made express reference to the analysis in [R. v. Hebert, (SCC), [1990] 2 S.C.R.151] and embraced this modern expansive view of the confessions rule which, significantly for our purposes, clearly includes the right ofthe detained person to make a meaningful choice whether or not to speak to state authorities. At para. 38 Charron J. stated, "The mere presence of a doubt as to the exercise of the detainee's free will in making the statement willsuffice to ground a remedy".

This was emphasized by McLachlin C.J. and Charron J. in the majority decision in Sinclair at paras. 58 and62. … 34 The repeated assertions by Mr. Davis that he knew nothing and his blunt denials are consistent with an effort to remain silent,rather than the exercise of free will. As Binnie J. observed in Sinclair, (at para. 104), the reality is that a suspect may choose to co-operate on some issues but not on others. While Mr.

Davis may have engaged in conversation with the officer on innocuous topics, evenat times with some apparent interest, whenever Constable Kimlin broached any of the circumstances relevant to the offence, heconsistently responded with an assertion of his right to silence, or that he knew nothing or with a blunt denial.… 36 This is not a case where the accused asserted his right to remain silent initially but then chose to waive that right. Mr.

Davisrepeatedly throughout the course of the interrogation, referred to his counsel's advice, and the fact that he had nothing else to say and thathe did not have to say anything. The answers he gave to the questions about the offence were not voluntary; they were the product of therepeated police questioning in the face of Mr. Davis' stated intention to remain silent. In fact, they were an attempt to deflect thequestioning. By continuing the questioning, the officer demonstrated that while the right to remain silent may have existed in theory, itultimately provided no protection to Mr. Davis. [38] In R. v.

Singh, 2007 SCC 48 the Supreme Court of Canada dealt with the issue relating to voluntariness and its intersection withan accused’s right to silence. At paragraphs 13 to 17 Charron J. set out the following: Before the interviews, Mr. Singh was given proper Charter and official police warnings and spoke to counsel by phone and in person. During the interviews, Mr. Singh spoke with the interviewing officer about his family, his background, his religious beliefs and hisemployment. He also discussed injuries he sustained when he was shot at a party.

Whenever the discussion turned to the incident inquestion, however, Mr. Singh was less forthcoming. Although he provided some information regarding his presence at the pub on thenight of the shooting, he repeatedly denied his involvement and asserted his right to silence. He indicated that he did not want to talk tothe police, that he had nothing to say, that he knew nothing about the shooting, or that he wanted to return to his cell. Before Mr. Singhwas shown the photographs in question and made the impugned admissions, he asserted his right to silence 18 times.

Each time, theinterviewing officer would either affirm that Mr. Singh did not have to say anything, or would explain to Mr. Singh that he had a duty ordesire to place the evidence before him and he continued the interview. On the voir dire to determine the admissibility of the two statements made by Mr. Singh, Bauman J. instructed himself that the centralissues were whether the Crown had proven beyond a reasonable doubt that the statements were made voluntarily and, alternatively,whether Mr. Singh had proven on a balance of probabilities that there was a breach of his right to silence under s. 7 of the Charter.

Mr.Singh did not testify and called no evidence on the voir dire. Bauman J. held that nothing in the police officer’s conduct was so oppressive as to overbear Mr. Singh’s will. He noted that thestratagem of placing evidence before an accused to extract a confession, no matter what the suspect says, runs the risk of being construedby the reviewing court as depriving the suspect of the right to make a meaningful choice whether to speak to the authorities or not,stating that “it is all a matter of degree” (para. 35).

After reviewing all of the circumstances surrounding the interrogation and themaking of the incriminating admission, he held that Mr. Singh’s admission that he was in the still photograph came freely and did notresult from the police systematically breaking down his operating mind or undermining his right to silence. He concluded that Mr. Singhwas well aware of his right to silence and that he had successfully exercised it repeatedly.

Finally, Bauman J. held that the probativevalue of the statements outweighed their prejudicial effect and ruled that the statements, with some editing as agreed to by counsel, wereadmissible. Mr. Singh did not testify and did not call evidence at trial. He was convicted of second degree murder by a jury.

Mr. Singh appealed from his conviction to the British Columbia Court of Appeal (Hall, Mackenzie and Thackray JJ.A.). He did notcontest that the statements were voluntary and confined his appeal to the s. 7 Charter issue. Much as he did in this Court, Mr. Singhargued that the proper application of the s. 7 right to silence required the police to stop trying to obtain admissions once the detaineeasserted his right to silence. He argued further that the trial judge’s approach erroneously subsumed the Charter right to silence underthe common law confessions rule, leaving s. 7 with virtually no significance.

At paragraph 47, Charron J. states the following: Mr. Singh takes particular issue with the leeway afforded to the police in questioning the detainee, even after he has retained counsel andhas asserted his choice to remain silent. He submits that courts have erroneously interpreted the underlined passage above as permittingthe police to ignore a detainee’s expressed wish to remain silent and to use “legitimate means of persuasion”. I say two things inresponse to this argument.

First, the use of legitimate means of persuasion is indeed permitted under the present rule — it was expresslyendorsed by this Court in Hebert. This approach is part of the critical balance that must be maintained between individual and societalinterests. Second, the law as it stands does not permit the police to ignore the detainee’s freedom to choose whether to speak or not, ascontended.

Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by thedetainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the productof a free will to speak to the authorities. As we shall see, the trial judge in this case was very much alive to the risk that the statementmay be involuntary when a police officer engages in such conduct.

Finally at paragraph 53, Charron, J. notes: It must again be emphasized that such situations are highly fact-specific and trial judges must take into account all the relevant factors indetermining whether or not the Crown has established that the accused’s confession is voluntary. In some circumstances, the evidencewill support a finding that continued questioning by the police in the face of the accused’s repeated assertions of the right to silencedenied the accused a meaningful choice whether to speak or to remain silent: see Otis.

The number of times the accused asserts his orher right to silence is part of the assessment of all of the circumstances, but is not in itself determinative. The ultimate question iswhether the accused exercised free will by choosing to make a statement: Otis, at paras. 50 and 54. [39] In R. v. Spencer 2007 SCC 11 the court set out the following at paragraphs 11 to 15: At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily. This Courtset out the test for ascertaining the voluntariness of such statements in Oickle.

That case “recast the law relating to the voluntariness ofconfessions. . . . It rejected resort to fixed and narrow rules”: D. M. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at p.290. As Iacobucci J. explained in Oickle, at para. 27, the rule “is concerned with voluntariness, broadly understood”. He also emphasizedthat a contextual approach is required (at para. 47): The application of the rule will by necessity be contextual.

Hard and fast rules simply cannot account for the variety of circumstancesthat vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trialjudge should therefore consider all the relevant factors when reviewing a confession. In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to thevoluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating minddoctrine and police trickery.

Threats or promises, oppression and the operating mind doctrine are to be considered together and “shouldnot be understood as a discrete inquiry completely divorced from the rest of the confessions rule” (Oickle, at para. 63). On the otherhand, the use of “police . . . trickery” to obtain a confession “is a distinct inquiry . . . [given that] its more specific objective ismaintaining the integrity of the criminal justice system” (para. 65).

With respect to promises, which are at issue in the present appeal, this Court has recognized that they “need not be aimed directly at thesuspect . . . to have a coercive effect” (Oickle, at para. 51). While Iacobucci J. recognized in Oickle that the existence of a quid pro quo isthe “most important consideration” when an inducement is alleged to have been offered by a person in authority, he did not hold it to bean exclusive factor, or one determinative of voluntariness.

On the contrary, the test laid down in Oickle is “sensitive to the particularitiesof the individual suspect” (para. 42), and its application “will by necessity be contextual” (para. 47). Furthermore, Oickle does not statethat any quid pro quo held out by a person in authority, regardless of its significance, will necessarily render a statement by an accusedinvoluntary. For example, an offer of psychiatric or psychological assistance, although “clearly an inducement, . . . is not as strong as anoffer of leniency and regard must be had to the entirety of the circumstances” (para. 50).

Inducements “becom[e] improper only when . . .standing alone or in combination with other factors, [they] are strong enough to raise a reasonable doubt about whether the will of thesubject has been overborne” (para. 57). To the extent that any distinction in law may be asserted between the traditional “confessions rule” in Ibrahim v. The King, (SCC), [1914] A.C. 599 (P.C.), at p. 609, per Lord Sumner, and this Court’s decision in Oickle, the latter must prevail. In my view,however, Lord Sumner’s formulation of the “narrow” rule does not mean that any quid pro quo will automatically render a statementinvoluntary.

Indeed, Lord Sumner required that in order for a statement to be admissible, it must not have been “obtained from [theaccused] either by fear of prejudice or hope of advantage”. In the subsequent case of Director of Public Prosecutions v. Ping Lin, [1976]A.C. 574 (H.L.), at p. 595, Lord Morris asked: “was it as a result of something said or done by a person in authority that an accused wascaused or led to make a statement”.

Therefore, while a quid pro quo is an important factor in establishing the existence of a threat or promise, 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. W.D. [40] In this case Korof testified. As such it is necessary to engage the W.D. analysis, which sets out the following: Step One - if I believe Korof’s evidence that he only gave this statement as a result of the promise of leniency by Cst.

De Cordovathen the statement would be rendered involuntary Step Two - if, after a careful consideration of all the evidence, I am unable to decide who to believe as it relates to promises andinducements made by Cst.

De Cordova, then the statement would be rendered involuntary Step Three - even if I do not believe the testimony of Korof, if it leaves me with a reasonable doubt, then the statement would berendered involuntary Step Four - finally, even if the testimony of Korof does not leave me with reasonable doubt, the statement can only be renderedvoluntary if on the rest of the evidence I do accept it renders the statement voluntary beyond a reasonable doubt. [41] With respect to steps one, two and three, after a careful review of Korof’s testimony within the context of the entire evidentiaryrecord, I do not accept the testimony of Korof that promises or inducements were made.

In R. v. Hoohing 2007 ONCA 577 Feldman JAset out the follow at paragraphs 14 and 15: The trial judge properly told the jury that they are not compelled to choose between the evidence favouring the Crown and the evidencefavouring the accused on essential matters because the burden is on the Crown to prove guilt beyond a reasonable doubt. He also properly told the jury that they were to weigh the evidence cumulatively and not in isolation. A jury does not consider anaccused’s version of events in isolation as if the Crown had led no evidence.

When the jury is applying the first two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused’s version of events or whether it leaves them with a reasonabledoubt. Clearly they can only do that by assessing the accused’s evidence and the other evidence that favours the accused in the contextof all the evidence. See R. v. Hull, (ON CA), [2006] O.J. No. 3177 at para. 5 (C.A.).

The evidence of any witness,including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on theaccuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longerraise a reasonable doubt. [42] The critical piece of evidence that casts serious doubt on the veracity of Korof’s testimony at the voir dire is the videotapedstatement itself. [43] Korof testified that the promise or inducement made by Cst.

De Cordova was that if he co-operated and gave the police whatthey wanted they would go lightly and he would be let go that night. That testimony, however, cannot be reconciled with the fact that onthe video he is told that he was going to be held for bail. The following exchange is relevant and informative on this point at pages 3 and4 of the transcript: OFFICER 1: You don’t have any questions at this time? KOROF: No. OFFICER 1: You know y-, why you’ve been arrested? You were explained the charges? KOROF: I was explained the charge, yeah. OFFICER 1: You were explained the charges? KOROF: Yeah.

OFFICER 1: All right. Okay. Um, surname, K-O… KOROF: R-O-F. OFFICER 1: R-O-F. Sorry, just to cut in again. Your mom was here. KOROF: Yeah. OFFICER 1: She w-, came to the front desk. We didn’t tell your-, tell her why you were arrested or… KOROF: Okay. OFFICER 1: ...what the charges were. But she knows you’re here.

KOROF: (Nods head yes) OFFICER 1: We explained to her that you’re going to be held for a bail and that you’re going to be going to court tomorrow morning. So she’s going to be there tomorrow morning. KOROF: She is going to be there tomorrow morning? OFFICER 1: Yeah. If, uh, uh, if she’s not there at the time, uh, you’re going to be going to be speaking to duty counsel or somebody …there, uh, a lawyer there. You can ask them to get in touch with her, but she is… KOROF: Do you know what time it is tomorrow morning? OFFICER 1: I believe 9:00. KOROF: 9:00 in the morning?

OFFICER 1: So I’m not sure what time they’ll pick you up here, but they’ll start-, get you over there for about 9:00. KOROF: (Nods head yes) OFFICER 1: Okay, 9:30. We told your mom nine o’clock, be there. Um, and she said she’s going to be there. [ 44 ] Bail is discussed again on page 224: OFFICER 2: Right. And then like I said, you’re going to be, uh, held for a bail hearing tomorrow. KOROF: Yeah. OFFICER 2: You’ll go in front of a judge or justice in the morning. Uh, and at that point, they’ll determine if they’re going to release you and if they do release you, then they’ll probably put some conditions on you.

If they don’t release you then you’ll be held in custody until the trial. KOROF: Okay. OFFICER 2: Okay? [ 45 ] With respect to being given a caution the following excerpt from the transcripts is relevant: OFFICER 1: Hi, buddy, you good? Talked to your lawyer, satisfied with the… KOROF: Yes, I talked to one. OFFICER 1: And you satisfied with the uh,, direction that you were given? KOROF: Yeah. OFFICER 1: Okay.

Um, in relation to this, if you’ve talked to anybody else in relation to these charges or anybody else-, I know you came here with myself and my partner, -, if you’ve talken [sic] to anybody else in relation to this, you don’t have to tell me anything, kay? And everything that you do tell me obviously is going to be used… KOROF: Mm-hmm. OFFICER 1: …okay, as evidence. Um, we’re gonna go over a few things first. We’re gonna just go over your height, weight and all that stuff. And then, uh, and then we’ll proceed to have a chat about what the charges and stuff are all about. …right?

My partner’s already explained your charges. He read you your rights to counsel? KOROF: OFFICER 2: KOROF: Yeah. OFFICER 1: Yeah? And you were given the opportunity to speak to a lawyer which you did. KOROF: Yeah. OFFICER 1: Okay? And now we are, un-, anything that you’ve talked to him about. I don’t want it to be influencing anything you’re gonna talk to me about, okay? 19:29 KOROF: Okay. [ 46 ] Further, with respect to being given his rights to counsel and cautioned I am satisfied that Cst. De Cordova did so. He made a note in his notebook that he did.

He also made a notation that after Korof said he wanted to talk Cst. De Cordova said no. To protect both of them Korof had to speak to a lawyer first. [ 47 ] I do not accept the evidence of Korof that Cst. De Cordova trash talked him about being a pimp while in the police vehicle.

Korof acknowledged in cross-examination by the Crown that there was no issue with how the Officers treated him at the house. His request to be able to go into the house to lock it and so that he could obtain his keys and wallet was agreed to. Korof did not file any complaints about the Officers on how they treated him. [ 48 ] The video does not depict an atmosphere of oppression. During the initial part of the video and up to page 34 of the transcript, Korof is freely answering the questions and providing a lot of detail to Cst.

De Cordova. [ 49 ] At page 37 when talking about his father, Korof becomes emotional and Cst. De Cordova respects that and moves away from talking about his father. The following exchange is informative on that point: KOROF: Um, right now, my parents are in a very tough situation with their business. OFFICER 2: Right. KOROF: Um, so my goal this year is to make-, I don’t know, at least like in the, you know, like the hundred thousand dollar range or so… OFFICER 2: Mm-hmmm.

KOROF: ...just so I can help them, so they’re not stressed out, ‘cause… OFFICER 2: Do you still live at home or do you… KOROF: Yeah, yeah, at home. OFFICER 2: Okay. KOROF: Just to they’re not all, you know, stressed out. I hate seeing my dad cry and stuff. OFFICER 2: Mm-hmm. KOROF: it makes me feel all teary right now, too. But um, yeah that… OFFICER 2: We won’t talk about that then. KOROF: ...um, that, and then -, now, I can’t even talk (inaudible). OFFICER 2: Okay, we won’t talk about your dad then. Do you drive a car? [ 50 ] Korof then asks for a tissue and water and his request is accommodated.

KOROF: Can I have like a tissue paper… OFFICER 2: Yeah. KOROF: …and some water? OFFICER 2: Hold on one second. Yeah. Hang on. 20:05 Officer leaves the room. 20:06 Officer enters the room. OFFICER 2: Here you go. KOROF: Can I have a cup of water? OFFICER 2: Uh, yeah. Give me a second, ‘cause I’m not familiar with this area. So I’m looking for where I can get you some water. 20:06 Officer leaves the room. 20:09 Officer enters the room. OFFICER 2: There you go. KOROF: Thanks. OFFICER 2: You all right then? So the last-, I think we were just talking about I guess, uh, how expensive the Square One area is.

KOROF: Yeah. [ 51 ] After this point the conversation is again relaxed and Korof is speaking freely. When talking about opening a shisha bar the conversation is light and at one point Cst. De Cordova laughs at what Korof is saying:

KOROF: …you know, with the money I saved I wanted to open up a shisha bar. OFFICER 2: A what, sorry? KOROF: You know like you know like the shisha that you smoke? [ 52 ] Korof testified that he gave this statement because he was promised leniency that is they would go lightly and let him go, but he knew he did not have to talk to Cst. De Cordova. At page 59 he states: …the lawyer said don’t talk to police. Page 60 Like I said, I don’t want to really talk and say anything here. Like the lawyer said, don’t talk. Page 62 But the lawyer told me not to say anything and tell or do anything, so… OFFICER 2: Okay.

And I understand that but I’m still going to ask you questions. KOROF: Okay. PAGE 63: Cause the lawyer told me not to talk anymore. [ 53 ] I am satisfied that Korof not only confirmed in his voir dire testimony that he knew he did not have to talk he repeatedly tells Cst. De Cordova his lawyer told him he did not have to talk. [ 54 ] Korof testified that when he was in the police vehicle he was terrified for being arrested for pimping and that Cst. De Cordova was trash talking him. I do not accept his evidence on that point but even if Cst.

De Cordova did trash talk him it did not result in Korof’s will to speak being overborn by that. [ 55 ] Korof knew he did not have to speak. However, commencing again at page 73 Korof is speaking freely again and providing the Officer with a lot of detail and information. At no time does he confess or make any inculpatory admissions. Some of the details he provides is volunteered without prompting by the Officer. [ 56 ] As the interview progresses and the questions become more pointed and somewhat but not overly aggressive Korof holds his own and at times he is challenging the Officer. At times Cst.

De Cordova cuts off Korof and at times Korof cuts off the Officer. [ 57 ] As the interview continues Korof is providing a lot of detail and at times he is doing most of the talking. An example of this is found at pages 185 and 186: OFFICER 2: You’re the one that kinda told her that she would have a condo. KOROF: No, I didn’t. I didn’t even talk. I barely talked to her back then. Like I obviously talked to her while she was in, like, working the business with me, but I’ve never, like, talked to her, you know, about anything else. Like it was just like casual talking. Like, she was a friend.

I treat all my friends as friends. I mean, whether they’re acquaintances or not, they’re still a friend to me. OFFICER 2: Mm-hmm. KOROF: Right? So when she told me she had a problem in the summer time, I’m like, okay, cool, like, you know, like, the only way I know-, that I can help you is obviously through like, helping you in the business and making you succeed in your own multilevel marketing, the business, right? OFFICER 2: But she was already in Vemma then? KOROF: Yeah. OFFICER 2: Right? KOROF: Um… OFFICER 2: So she wasn’t succeeding, obviously… KOROF: No. OFFICER 2: …if she’s coming to you to tell you that.

KOROF: No. OFFICER 2: …she needs money. KOROF: No, yeah, I know, she came to me, you know, obviously she told me, you know, she needs money but there was nothing I can, you know, do and stuff. She told me her whole situation. Oh, you know, um, like, I have, you Know, no credit, this and that, like, if I ever needed you know someone to like sign for me or whatever would you be able to do it? I’m like I see why not? Like, I knew you now for, you know the past year, right? So yeah, you know what I mean? So I signed for her.

Why not? [ 58 ] Korof points to an exchange that occurs at the end of the video as an indication of how he was being treated and confirming that

Cst. De Cordova is the type of person who did engage in trash talk while in the police vehicle. The exchange referred is set out at pages 228 and 229 as follows: OFFICER 2: (From the door way.) Have a seat. KOROF: I have to take a piss. OFFICER 2: (From the door way.) Have a seat. The escort… KOROF: Can I go to the wash- I’m going to piss myself. OFFICER 2: (From the door way.) Okay, how old are you? Are you two years old? KOROF: Yeah, but I’ve been holding it and… OFFICER 2: (From the door way.) Fair. KOROF: …talking to you. Can I go to the washroom, please? OFFICER 2: (From the door way.) No, no, wait.

The cell officer has to take you. So you can have a seat. KOROF: Okay, can I go right now, then to the cells, so I can piss? OFFICER 2: (From the door way.) The cell officer has to take you. Am I speaking a different language? … KOROF: And I’m actually going to piss myself. OFFICER 2: (From the door way.) This is the first you’ve asked for it, so you can wait a couple minutes till the cell officer gets here. KOROF: Holy. OFFICER 2: (From the door way.) Otherwise, then you should’ve put a diaper on.

KOROF: Now, you’re the one giving me attitude. [ 59 ] There is no doubt this was an unfortunate exchange and one that really was not necessary. Although it was the first time that Korof did ask to go to the washroom he should have been afforded the opportunity to do without those comments made by the Officer. However, the exchange has to be viewed in context. It comes at the conclusion of the interview and nothing flows from it and no further statements are obtained from Korof.

I am not satisfied that in considering the totality of the circumstances this exchange corroborates in any way the allegation by Korof that Cst. De Cordova engaged in trash talk in the police vehicle. Cst. De Cordova noted at the time that there was no conversation in the police vehicle and even though Korof wanted to talk to him he told Korof in order to protect both of them he would have to speak to a lawyer first. I accept the Officer’s testimony on that issue. [ 60 ] I have considered all of the circumstances surrounding the arrest and the taking of the statement.

As I indicated the videotaped statement itself is the most compelling piece of evidence that establishes and confirms that the statement is voluntary. Korof knew he did not have to speak to the police but chose to do so in an effort to help himself. His will was not overborne and the videotape confirms that it was not. [ 61 ] The promise or inducement that Korof alleges Cst. De Cordova made is, according to the video, immediately withdrawn. Korof is told in no uncertain terms he is not getting out that night.

As the excerpts I referenced earlier on page 4 of the transcript demonstrates, he is told he will be going to bail court at 9:00 a.m. the next morning. Korof’s response is not to ask the Officer what happened to the deal, rather his response is okay. At no time does Korof say to the Officer, “I thought I would be getting out tonight, wasn’t that our deal?” Korof did not say that because in fact there was no deal. [ 62 ] The defence referred the court to the decision in R. v. Cheekinew , 2011 SKQB 484 .

At paragraphs 15 and 16, the court set out the following: Not all types of threats or promises will raise a reasonable doubt as to the voluntariness of a confession. The classic “hope of advantage ” is the prospect of leniency from the courts, either by way of a reduced charge or sentence. An explicit offer to obtain leniency in return for a confession is a strong inducement and warrants exclusion, particularly so where police questioning is intense and prolonged. The inducement may not always be quite so direct. “ Fear of prejudice” is another aspect of this rule.

Where the “fear” is subtle and veiled, assessing voluntariness is a difficult task. Phrases like “it would be better if you told me the truth” should not be automatically excluded. They are to be excluded only where the circumstances reveal an implicit threat or promise.

Furthermore, in assessing the voluntariness of a statement, the Supreme Court in Oickle has said that I must consider whether the will ofthe accused was overborne. If I have a reasonable doubt, the statement must be excluded. The Supreme Court in R. v. Spencer, 2007 SCC11 , [2007] 1 S.C.R. 500 further directs me to consider the strength of the inducement having regard to the particular accusedand the circumstances, not simply the quid pro quo. [63] I am not satisfied that the will of the accused was overborne.

I am satisfied beyond a reasonable doubt that the statement isvoluntary. ___________________________ Fragomeni, J. Released: February 7, 2017 CITATION: R. v. Korof, 2016 ONSC 7656 COURT FILE NO.: 15-1157 DATE: 20160207

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – NENAD KOROF RULING RE: VOLUNTARINESS OF ACCUSED’S VIDEOTAPED STATEMENT OF MARCH 13, 2014 Fragomeni, J. Released: February 7, 2017