R. v. Alexis-McClymont et al, 2017 ONSC 5290

CITATION : R. v. Alexis-McClymont et al, 2017 ONSC 5290 COURT FILE NO.: 16/600 DATE: 2017/09/06 SUPERIOR COURT OF JUSTICE – ONTARIO RE: HER MAJESTY THE QUEEN v. JAIDEN ALEXIS-MCLYMONT, ANTHONY ELGIN and DYLAN HIRD BEFORE: Justice I.F. Leach COUNSEL: Joseph Perfetto, for the Crown Nicholas Wansbutter, for the Accused HEARD: March 2, 2017, and by subsequent written submissions PUBLICATION RESTRICTION NOTICE Pursuant to

section 486.4 of the Criminal Code of Canada , there is a ban on disclosing the name of any complainant involved in the proceedings or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.

ENDORSEMENT [ 1 ] This particular pretrial decision deals with the voluntariness of videotaped statements made by Jaiden Alexis-McLymont, (one of the three accused persons in this criminal proceeding), during a formal police interview conducted by Detective Constable Jeffrey McGregor, (“Detective McGregor”), of the Stratford Police Service, on August 20, 2015. [ 2 ] The Crown seeks a finding that the statements were voluntary, and a corresponding order permitting admission of the videotaped statement as evidence during the pending jury trial of the accused. [1] [ 3 ] In that regard, Crown counsel nevertheless indicated and confirmed that the focus of the hearing before me was restricted to voluntariness.

In particular, Crown counsel confirmed that, if the statements were found to be voluntary, a further redaction process was contemplated; e.g., whereby content having prejudicial effect outweighing probative value would be excluded. [ 4 ] In responding to the Crown’s application regarding voluntariness, Mr Alexis-McLymont, (whom I alternatively will refer to as “the respondent” to this application), submitted through respondent counsel that the Crown has not established, beyond a reasonable doubt, that his statements to Detective McGregor were voluntary.

To the contrary, it was submitted that the facts establish a breach of his constitutional right to remain silent, as guaranteed by

section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”). [ 5 ] Mr Alexis-McLymont accordingly seeks an order dismissing the Crown’s application, effectively excluding, during his anticipated trial, all evidence of his videotaped statements to the police. Background [ 6 ] The respondent is charged with the following three offences: i. trafficking of a person under the age of eighteen years, contrary to

section 279.011(1) of the Criminal Code of Canada , (“the Code”); ii. procuring, contrary to

section 286.3(2) of the Code ; and iii. material benefitting from trafficking of a person under the age of eighteen years, contrary to

section 279.02(2) of the Code . [ 7 ] The charges stem from a series of events alleged to have taken place in August of 2015. In particular, I gather from the indictment and allegations put by Detective McGregor, during the course of the police interview in question, that a 15-year-old girl from Stratford is said to have been invited via Facebook to meet in Kitchener “to smoke a joint”.

However, on her arrival at a Kitchener bus terminal, she is said to have been taken to a local hotel where she was drugged with illicit narcotics, sexually assaulted by a number of males, and then confined and prostituted repeatedly over the course of approximately six days before effecting an escape. [ 8 ] At least four males were thought to have been involved in the alleged criminal activity. [ 9 ] Through comments made by the complainant during the course of a police interview, and further investigation using social media and Facebook in particular, the investigating police identified Mr Alexis-McLymont as one of the four suspects.

At approximately 6pm on August 20, 2015, he accordingly was arrested in Kitchener by officers of the Waterloo Regional Police and Stratford Police, and transported to the cell block area of the Central Division headquarters of the Waterloo Regional Police. [ 10 ] It is not disputed that the respondent was appropriately cautioned and advised of his legal rights, including the right to counsel. Nor is it disputed that, following the arrest, the police successfully facilitated contact between the respondent and his counsel of

choice.[2] [11] After Mr Alexis-McLymont had spoken with his counsel of choice, he was taken to an interview room in the same cell blockarea to be interviewed by Detective McGregor. That videotaped interview, (giving rise to the statements which are the subject of theCrown’s current application), began at approximately 7:26pm on August 20, 2015. It continued without interruption for about 58minutes; i.e., until approximately 8:24pm.

After a break of approximately 16 minutes, (during which the respondent remained in theinterview room alone while Detective McGregor stepped outside before returning), the interview continued briefly, for another twominutes, before concluding at 8:42pm. [12] In the voir dire hearing before me, to determine the voluntariness of the statements made by Mr Alexis-McLymont during hispolice interview, counsel agreed that the matter was to be decided based on the following evidence, introduced on consent and/orthrough Detective McGregor as a sworn witness: • a transcript of Detective McGregor’s testimony at the preliminary hearing conducted in relation to this matter, on July 14, 2016; • the viva voce testimony of Detective McGregor during the hearing before me on March 2, 2017; and • the video recording of Detective McGregor’s aforesaid interview of Mr Alexis-McLymont on August 20, 2015.[3] [13] The parties agreed, in particular, that the Crown would not rely on anything that took place before the videotaped statement tobuttress its arguments regarding voluntariness, and that the respondent would not rely on the absence of evidence from other officers oragents of the state to argue that the Crown had not discharged its burden of proof in relation to voluntariness of the interview statements. [14] In that regard, the respondent’s counsel expressly conceded, during the hearing before me, that none of the other officers whohad any involvement with Mr Alexis-McLymont, prior to the videotaped interview, did anything to negatively impact the voluntarinessof the statements made by the respondent during that interview. [15] In the words of defence counsel, it was agreed that the voluntariness of those statements by the respondent “all comes down tohis interaction with Detective McGregor”.[4] [16] I will have more to say about the specifics of that interaction during the course of my analysis below.

Procedure [17] Before proceeding to a consideration of those specifics, and an analysis of whether the relevant statements were givenvoluntarily in the sense required, I pause to note that, on consent, the voir dire before me proceeded in a slightly atypical manner. [18] In particular, even though the relevant afternoon court sitting was extended to approximately 6:00pm on March 2, 2017, thetime allotted for hearing of the Crown’s application was insufficient to complete presentation of the agreed evidence and oral argument.

In the result, the parties agreed that, after completion of the agreed evidence that afternoon and evening, argument of the applicationwould be completed by written submissions, (supplementing the facta and books of authorities already filed by the parties), to bedelivered in accordance with a timetable set by the court. [19] In accordance with that timetable, I subsequently was provided with the following: • a brief entitled “Crown’s Supplementary Written Submissions on Voluntariness Re Statement of Jaiden Alexis-McLymont”; • a brief entitled “Respondent’s Supplementary Written Submissions on Voluntariness Re Statement of Jaiden Alexis-McLymont”;and • a letter from Crown counsel, copied to the respondent’s counsel, confirming that the Crown would not be filing any furtherwritten submissions by way of reply. [20] Again, those written submissions, (supplementing the facta originally filed by the parties), were provided in lieu of oralargument. [21] In order to assist counsel with their preparation for trial, I sent an email to the trial co-ordinator on August 8, 2017, asking herto inform counsel that I had decided the statements made by Mr Alexis-McLymont to Detective McGregor were voluntary, for reasons tofollow. [22] For reasons unknown, that email unfortunately was not received.

That came to my attention on August 30, 2017, when thetrial co-ordinator advised me that counsel were making inquiries as to when a decision as to voluntariness of the statements might beexpected. I had further communications with the trial co-ordinator, and counsel were advised later that day that I had decided thestatements were voluntary, for reasons to follow. These are those reasons.

General Principles [23] Before proceeding to outline my analysis of whether or not the particular interview statements made by the respondent toDetective McGregor were voluntary in the sense required by law, I think it helpful to outline a number of general principles relating tovoluntariness. [24] Such principles were restated and emphasized by the Supreme Court of Canada in the seminal case of R. v. Oickle, 2000 SCC38 , [2000] 2 S.C.R. 3, and have since been repeated in decisions such as R. v. Spencer, 2007 SCC 11 , [2007] 1 S.C.R.500. They include the following:

• Statements by an accused will not be admissible if they are made under circumstances that raise a reasonable doubt as to voluntariness. • The burden is on the prosecution to prove beyond a reasonable doubt that a statement was voluntary. • Application of the “confessions rule” or voluntariness rule is necessarily contextual, because “hard and fast” rules cannot account for the wide variety of circumstances that may vitiate voluntariness, including sensitivity to the particularities of the accused. • A trial judge therefore must consider all relevant factors when reviewing such statements, always keeping in mind the twin goals or objectives of protecting the rights of an accused without unduly limiting society’s need to investigate and solve crimes.

However, the factors to be considered include the following: i. Whether statements were induced by threats, (including but not limited to threats of violence), or promises, (including but not limited to offers of leniency, counselling, or other forms of “quid pro quo” in exchange for the accused speaking with police); ii.

Whether a statement was induced by a desire to escape oppressive conditions, (including but not limited to deprivation of food, clothing, water, sleep or medical attention, denial of access to counsel, and/or excessively aggressive or intimidating questioning for a prolonged period of time); iii.

Whether an ostensible statement by the accused was made at a time when the accused lacked “an operating mind”; a requirement which, according to the Supreme Court of Canada, “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”; and iv.

Whether the police used “trickery” to obtain a statement from the accused, recognizing that courts must be wary not to unduly limit police discretion, and that resort to tricks and other forms of deceit are not prohibited so long as they are not “so appalling as to shock the community”. [ 25 ] Again, that list of factors is not exhaustive, but those are the four principal areas or situations giving rise to possible doubt concerning voluntariness identified by the Supreme Court of Canada, which therefore understandably have been the focus of subsequent decisions.

Analysis [ 26 ] With the above principles in mind, I turn to my consideration of whether the statements made by Mr Alexis-McLymont to Detective McGregor, in the course of the relevant police interview on August 20, 2015, where voluntary in the sense required by law. [ 27 ] In the course of doing so, I will address a number of suggestions and concerns raised by respondent counsel in that regard. At all times, however, I do not lose sight of the fact that it is the Crown which bears the onus of proving the voluntariness of the respondent’s statements beyond a reasonable doubt.

THREATS AND PROMISES [ 28 ] In his written submissions, respondent counsel expressly agreed with the Crown’s submission that Detective McGregor made no threats during the course of the police interview. [5] [ 29 ] I concur, and independently find that this case involved no express, implicit or veiled coercive threats of any kind on the part of the detective to induce a statement from the respondent. [ 30 ] Without limiting the generality of the foregoing, Detective McGregor treated the respondent with courtesy and respect.

The detective questioned and spoke with the respondent in a civil manner, rarely raising his voice. During such interaction, the accused was never mistreated. Nor, in my view, were there any express or implicit threats of ill treatment or more punitive consequences for the accused if he failed to speak with Detective McGregor. [ 31 ] Respondent counsel instead suggested that Detective McGregor made several “subtle promises” during the course of the interview.

For example, reliance was placed on the following: • The detective made a number of references to the interview being an “opportunity” for the respondent, and/or an opportunity for the respondent to help himself. [6] • Detective McGregor made comments indicating or suggesting that what the respondent said to him might result in the respondent not being charged. [7] • Shortly after the respondent’s indication that he “really wanted to know what this is about”, and a question as to whether Detective McGregor was “gonna explain it” to the respondent if he did not talk, the detective said the interview was not going to be a “one-sided conversation”. [8] • Detective McGregor continued to speak with and question the respondent, notwithstanding the respondent making numerous indications that he did not want to talk, and repeated requests to be returned to his cell. [9]

[ 32 ] Respondent counsel characterized these references as an implicit promise of leniency or other reward, (e.g., immediate disclosure of further information concerning the charges against the respondent, termination of the interview, and/or the respondent being permitted to return to his cell), in exchange for speaking. [ 33 ] In that regard, respondent counsel candidly indicated, in relation to such alleged “subtle promises”, that they would not be enough, on their own, to render the statements made by the respondent to Detective McGregor involuntary.

It nevertheless was suggested that they were an important factor, in the broader context, that contributed to a vitiation of voluntariness in the sense required. [ 34 ] In my view, however, the aforesaid aspects of the interview relied upon by the respondent were not promises or any “quid pro quo” offer of the type sufficient to raise or contribute to any reasonable doubt as to the voluntariness of the respondent’s statements. [ 35 ] My considerations in that regard include the following: • Our courts have made it clear that it is improper for a person in authority to suggest to a suspect that he or she will take steps to procure a reduced charge or sentence if the suspect confesses to a crime.

The concern focuses on offers by the police to procure lenient treatment for crimes, in return for a confession to those crimes. [10] However, that is not the same thing as an indication that a charge may not be pursued against a suspect if information is received indicating that the person in question did not commit the crime at all.

In my view, the latter is what Detective McGregor’s statements concerning an “opportunity” conveyed, and were intended to convey, in the present case. • In any event, isolated comments by Detective McGregor must not be taken out of context and the wider circumstances in which they were made.

The broader reality is that the detective expressly and repeatedly made it clear that he was making absolutely no promises, in relation to leniency or other possible reward, in exchange for statements provided to him by the respondent. [11] Respondent counsel suggested that the comments were insincere verbiage, designed to mask Detective McGregor’s true methods. However, I see no reason to question the sincerity of the detective’s statements, emphasizing in no uncertain terms to the respondent that no promises would be made in exchange for the respondent’s willingness to talk.

Nor do I think it reasonable to infer that the respondent, in the face of such express denials of any possible “quid pro quo” arrangement, was induced to keep speaking by a mistaken perception that any such implicit promise was being made.

In my view, this is a case where the respondent’s hope of such a promise was self-generated, and therefore irrelevant. [12] • I reject the suggestion that Detective McGregor’s comment, indicating that the contemplated interview was not going to be a “one- sided conversation”, was any form of explicit or implicit indication by the detective of a “quid pro quo”, in the sense that the accused was being promised that he would receive information about the charges against him if he kept talking.

Detective McGregor testified, and I accept, that he simply used the term to indicate, in conjunction with his repeated express reminders that the respondent had no obligation to speak, that the detective was “not going to sit there and talk to himself”; i.e., that if the respondent “shut down”, in the sense of “not opening his mouth” in response to further comments or questions by the detective, the interview or attempted “conversation” would have been terminated.

Indeed, Detective McGregor repeatedly said as much to the respondent at the outset of the interview. [13] Moreover, when the respondent expressed his inference that Detective McGregor’s reference to not having a one-sided conversation meant that he would be “left in the dark” concerning what the charges were about, if he said nothing during the interview, the detective immediately and expressly corrected that misperception by explaining that the respondent would be going to court and receiving disclosure in any event. [14] • I will have more to say below in relation to the suggestion of an implicit promise by Detective McGregor that the respondent would be returned to his cell if and only if he provided desired information to the detective.

In particular, it seems to me that the circumstance of Detective McGregor admittedly and expressly refusing to return the respondent to his cell, despite repeated requests by the respondent, is more accurately relied upon by the respondent as a condition of oppression, rather than an express or implicit promise by Detective McGregor. For now, I note that the detective never promised the respondent that he would be returned to his cell if he provided certain information, or answered certain questions.

To the contrary, when the respondent proactively suggested an arrangement, whereby he would be returned to his cell in exchange for providing Detective McGregor with the name of another suspect, the detective responded with a timely reminder of the respondent’s right to silence; i.e., “I can’t make you do anything”.

Although Detective McGregor went on to say that he did not want the respondent to go back to his cell just yet, as he thought the respondent had something further to tell him, that was followed almost immediately thereafter by the detective’s express and repeated refusals to make any promises, noted above. [15] [ 36 ] More generally, I am mindful of the Supreme Court of Canada’s emphasis on remembering that police may often offer some kind of inducement to a subject to obtain a confession; that in the vast majority of cases the police somehow have to convince a subject that it is in his or her best interests to confess; and that such efforts become improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. [16] [ 37 ] In this case, for the reasons outlined above, I do not view the considerations relied upon by respondent counsel as inducements, (threats, promises or offers of quid pro quos), held out by Detective McGregor.

In particular, in my view there was no “promised benefit…of such a nature that, when considered in light of the relationship between [Detective McGregor] and the accused, and all the surrounding circumstances of the confession, would tend to induce the accused to make an untrue statement”. [17] [ 38 ] If the considerations relied upon by the respondent were inducements, in the sense required, I share the view of respondent counsel that they certainly were not strong enough, standing alone, to raise a reasonable doubt about whether the will of Mr Alexis- McLymont was “overborne” during his formal police interview. [ 39 ] I will return to the possibility of their combining with other factors, to raise such a reasonable doubt, in setting forth my overall conclusion concerning voluntariness, having regard to all the circumstances of the case.

OPPRESSION

[ 40 ] In his written submissions, respondent counsel submitted that “oppressive circumstances” constituted the primary factor in “breaking-down and vitiating” the voluntariness of the respondent’s statements to Detective McGregor. [18] [ 41 ] In R. v.

Oickle , supra , at paragraphs 58-62 , the Supreme Court of Canada provided descriptions and examples of the sort of “inhumane” or “distasteful” conditions that may be created by police to create oppressive circumstances sufficient to overbear a suspect’s will to the point of making him or her doubt his or her own memory, and/or offer a “stress compliant confession” to escape such conditions.

In particular, the Supreme Court offered an expressly non-exhaustive list of relevant factors in that regard, mentioned above, which included the following: “depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and aggressive, intimidating questioning for a prolonged period of time”. [19] Another possible source of oppressive conditions was said to be police use of non-existent evidence. [20] [ 42 ] In my view, there were no such conditions evident in the case before me.

Without limiting the generality of the foregoing: • The relevant police interview took place in an interview room that appeared to be clean and bright, with a fixed table and stool for use by the accused.

At no time during the interview does the accused express any discomfort relating to the furnishings provided for him. • As noted above, the respondent was arrested at approximately 6:00pm on August 20, 2015, and the relevant police interview with Detective McGregor commenced approximately 86 minutes later. [21] The interview accordingly began at a time when most people, regularly sleeping during night hours, would be well-rested. During the police interview, the respondent made no comments indicating that he was tired or in need of sleep.

From time to time during the interview, the respondent momentarily put his head down on or in his arms, on the table, but in my view this seemed reflective of boredom or distress rather than weariness, as the respondent appeared to remain alert and attentive at all times during the interview, and at times was quite animated in his movements and gesticulation. • There is no evidence to indicate how recently the respondent may have consumed food and/or drink prior to his arrest, and/or prior to commencement of his videotaped interview.

However, at no point during his approximately 79 minute appearance in the relevant video recording does he make any comments whatsoever indicating that he is hungry or thirsty. • During the entirety of his first 59 minute interview session with Detective McGregor, the respondent similarly made no comments whatsoever indicating that he was in need of a toilet to relieve himself.

For the first 12 minutes thereafter, (during which Detective McGregor temporarily had left the interview room), the respondent similarly displayed absolutely no signs of discomfort, continuing to sit calmly and quietly at the room’s seat and table without much movement, and without making any comments.

Approximately 72 minutes after being into the interview room, (and approximately 71 minutes after the interview began), the respondent did get up, moving initially towards the door of the interview room, (and its window), before walking up to the room’s video camera lens to indicate that he needed to use the washroom and urinate, as he had “kind of been holding it”.

He thereafter continued to stand calmly near the camera lens and nearby door, and then against the room’s table, until Detective McGregor’s approach to re-enter the interview room approximately 75 minutes after the respondent’s initial entry into the room. At that point, the respondent signalled to Detective McGregor, initially through the door window and then directly, that he needed to use the washroom.

Detective McGregor testified, and I accept, that he had not previously been told, (e.g., by any officer who may have continued to observe the video feed from the interview room during Detective McGregor’s temporary absence), of any earlier request by the respondent to use the washroom. Detective McGregor acknowledged, and the video recording confirms, that he did not immediately grant the respondent’s request to use the washroom. However, the detective testified, and I accept, that he did so because he knew the interview was “all but over”, apart from brief residual questions.

In the circumstances, he instead asked the respondent to resume his seat “for one sec”, which the accused did promptly without further complaint. Further questioning then continued for approximately 2 minutes, during which the respondent made no further remarks or comments about using the washroom, and engaged in laughing, smiles and gesticulating while responding to Detective McGregor’s further questions and comments.

From these various considerations, I infer and find that the respondent was in no significant distress, during the course of his interview, as the result of his having any need to relieve himself. • Throughout his time in the interview room, the respondent remained fully clothed, wearing a long sleeved pattern sweater, long trousers and shoes, from which I infer that the respondent was permitted to continue wearing his own clothing following his arrest and throughout his ensuing interview with Detective McGregor.

At no point during the video recording does the accused express any concerns whatsoever about being too cold or too warm. • Throughout his time in the interview room, there are no indications that the respondent required any form of medical attention.

Nor did the respondent make any comments to suggest that he had any needs or requirements in that regard. • As noted above, (and in further detail below), there is no dispute that the respondent was properly advised of his right to counsel upon arrest, and that the police facilitated the respondent’s exercise of that right prior to commencement of his interview with Detective McGregor. Indeed, the police were able to put the respondent in direct contact with his counsel of choice. • In my view, Detective McGregor did not conduct his questioning in an aggressive or intimidating fashion.

To the contrary, and as noted above, I think the detective treated the respondent with courtesy and respect, assuming a seated position like that of the respondent, (unless the detective was entering or leaving the room), without making any physical contact, and rarely raising his voice. • The entire interview was relatively brief. In particular, the respondent was in the interview room for no more than 79 minutes, arriving less than two minutes before Detective McGregor’s initial entry and departing less than a minute after the detective left the room after his final comments and questions.

During that time, actual questioning of the respondent lasted no more than 60 minutes; i.e., an initial 58 minutes of uninterrupted questioning, followed by break of approximately 16 minutes, followed by less than 2 minutes of further residual questions and comments, a significant portion of which was devoted to providing the respondent with information about his further anticipated movements, including his intended relocation by the police from Kitchener to Stratford. • Detective McGregor made no use of fabricated evidence. [ 43 ] At times during the interview, the respondent was visibly upset and agitated; e.g., temporarily burying his face in his arms,

turning on his chair to face the wall and away from Detective McGregor, gesticulating broadly and/or expressing comments in a plaintive tone of voice. [ 44 ] In my view, however, such reactions and conduct were not the product of any oppression on the part of Detective McGregor that “broke down” the respondent’s independent will and/or ability to make a voluntary decision as to whether he would continue speaking to the detective.

Rather, it seemed to me that the respondent primarily was upset by the legal jeopardy he was facing, reference to the alleged underlying circumstances of the charges, and the fear of possible physical retribution from others for his comments to the police. [22] [ 45 ] Moreover, such demonstrations of emotional upset by the respondent usually were transitory and short-lived.

For example, while the accused temporarily buried his face, turned away, or expressed frustration and upset verbally, such demonstrations usually lasted only a few moments, and were interspersed with the respondent returning to a state of relative calm and/or interactions with the detective that included smiles and laughter. [ 46 ] In support of suggestions of oppression, (and/or a response to alleged promises or inducements said to have been made by Detective McGregor), respondent counsel also placed reliance on the fact that the respondent apparently provided some false information to the detective; i.e., by suggesting that the actual name of another suspect involved in underlying events, nicknamed “Taffa”, was “Darren Taylor”. [23] Respondent counsel argued that the provision of false information by the respondent, during the course of his interview, was a strong indication that the respondent’s statements to Detective McGregor were involuntary. [ 47 ] I disagree, and think the reasoning is fallacious. [ 48 ] In my view, while it is true that courts are concerned about involuntary statements because they are more likely to produce false and unreliable confessions, it does not follow that demonstrably false statements provide strong support for a finding that such statements were involuntary. [ 49 ] Our courts routinely are confronted with statements that are demonstrably false.

However, that does not mean such statements were involuntary.

To the contrary, such falsehoods frequently stem from lack of reliability and/or credibility on the part of a voluntary speaker. [ 50 ] Moreover, the argument of respondent counsel is undermined on the facts of this case by the reality that the respondent, while supplying Detective McGregor with a name of another involved suspect that turned out to be inaccurate, also supplied the detective with a name of another involved suspect that was accurate. [24] [ 51 ] In my view, the fact the respondent provided accurate information does not indicate voluntariness any more than the provision of inaccurate information indicates involuntariness, and it is a mistake to reason backwards in that fashion instead of focusing on the relevant determining factors identified by the Supreme Court of Canada.

However, were it a proper and relevant consideration, the demonstrated simultaneous accuracy and inaccuracy of the information being supplied by the respondent to Detective McGregor would seem to make it a neutral factor. [ 52 ] In support of his submission that the respondent’s statements to Detective McGregor were involuntary because of oppression, (and in part because of the suggested combination between that oppression and the effect of the alleged promises and inducements outlined above), respondent counsel relied primarily on: • the detective’s persistence in questioning Mr Alexis-McLymont despite the respondent’s repeated reference to his counsel’s instructions to remain silent, and the respondent’s indications of a desire to stop talking; [25] and/or • the detective’s refusal to return the respondent to his cell, (and thereby implicitly terminate the interview), despite the respondent’s repeated requests in that regard. [26] [ 53 ] In my view, however, such acknowledged conduct by Detective McGregor did not entail improper oppression in the sense required to vitiate voluntariness, in the circumstances of this particular case. [ 54 ] Again, the Supreme Court of Canada has emphasized the importance of bearing in mind, at all times, the twin goals of the rights of an accused and the need to avoid placing undue limits on society’s need to investigate and solve crimes.

In that regard, the Supreme Court also has emphasized the following: a. It is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated, and that properly conducted police questioning is a legitimate and effective aid to criminal investigation. [27] b. The police accordingly have a right to question the accused. In particular, what the law recognizes is an individual’s right to remain silent.

That does not mean that a person has the right not to be spoken to by the police.

The importance of police questioning, in the fulfilment of their investigative role, cannot be doubted. [28] [ 55 ] The latter clearly seems to be the legal distinction to which Detective McGregor intended to refer, when providing the respondent with an explanation for not returning the respondent to his cell while simultaneously providing an express confirmation of the respondent’s right to silence. [29] It was the same distinction repeatedly emphasized by the detective during the course of his testimony, (and his cross-examination in particular), when pressed for an explanation as to why he felt entitled to keep speaking to the respondent, and asking the respondent questions, despite the respondent’s early and repeated assertions of an inclination to remain silent and a desire to be returned to his cell. [ 56 ] Notwithstanding that recognized distinction, the Supreme Court of Canada also has emphasized that the law does not permit the police to ignore a detainee’s freedom to choose whether to speak or not, and that police persistence in continuing an interview, despite

repeated assertions by the detainee that he or she wishes to remain silent, and have a police interview terminated, may well raise a strong argument, in appropriate cases, that any subsequently obtained statement was not the product of a free will decision to speak to the authorities. [30] [ 57 ] However, while the trial judge must be alive to the risk that a statement may be involuntary when a police officer engages in such persistence, the voluntariness inquiry nevertheless remains highly fact specific, and dependent on the trial judge’s review and assessment of all relevant factors. [ 58 ] In my view, this is not a case where Detective McGregor’s persistence in questioning the respondent, and refusal to return the respondent to his cell in order to terminate the interview, resulted in an improper situation where the free will of the respondent, and his ability to choose whether or not to speak to the police, was overborne. [ 59 ] The other considerations I have set forth above and below, (in relation to the absence of threats and promises, the absence of other forms of oppression, the presence of an operating mind, and the absence of police trickery), certainly contribute to that view. [ 60 ] However, I also find and rely upon the fact that this is not a case where the investigating officer was intent on putting the police case to the respondent, or on continued questioning of the respondent until he confessed and/or supplied desired information, no matter what the respondent may have said about his desire to remain silent and/or have the interview brought to an end. [31] [ 61 ] To the contrary, Detective McGregor testified, and I accept, that he continued to put questions and comments to the respondent simply because Mr Alexis-McLymont invariably continued to speak in response to such efforts. [ 62 ] In my view, that was indeed a striking aspect of the interview, made clear in the relevant video-recording, which confirms that, regardless of momentary upset, efforts to bury his face, turn away, assert his right to silence, or request a return to his cell, the respondent continued to respond to Detective McGregor’s comments and questions promptly, rarely pausing for more than a few seconds. [ 63 ] At any time, the respondent could simply have stopped speaking and “shut down”, and I accept Detective McGregor’s testimony that, had the respondent done so, the interview would have been terminated.

As noted above, the detective testified, and I accept, that he had no intention of sitting and talking to himself, in a one-sided conversation, and the detective expressly indicated as much to the respondent during the interview. [ 64 ] However, the respondent chose to keep talking. [ 65 ] Certainly, the number of times the accused asserted his right to silence is part of the overall assessment of the circumstances, but as emphasized by the Supreme Court of Canada, that is not in itself determinative, and the ultimate question is still whether the accused exercised free will in making his or her statement. [32] [ 66 ] In that regard, I also think it noteworthy that, in contrast to situations where an interviewer wears a suspect down by persistent questioning over the course of several hours, despite repeated assertion of the right to silence [33] , in this case the majority of the respondent’s indications of a desire to remain silent and/or return to his cell, (including a rapid and somewhat robotic repetition of the phrase “Can I go to my cell please” or slight variations thereof, some thirteen times, in less than 40 seconds – which responded counsel characterized as the point where the respondent’s will was “broken”), occurred less than 24 minutes into the interview. [34] [ 67 ] I do not think, especially having regard to the other considerations and factors addressed herein, that the free will of the respondent, and his ability to make a choice as to whether or not he would speak to authorities, was overborne in such circumstances, over so short a period of time. [ 68 ] Moreover, while it certainly is not impossible that the free will of an accused might be overborne in such a short period of time, (e.g., in the case of a particularly compliant accused, one without an operating mind, and/or one subjected to some potent combination of threats, promises, oppression and/or police trickery), it seems to me that the court must be wary of arriving at such a conclusion, and effectively finding that an interview should have been terminated, after such a relatively short period of attempted questioning by the police, simply because the accused rapidly and repeatedly expresses such desires within a very compressed timeframe. [ 69 ] In particular, it seems to me that doing otherwise would come perilously close to providing interviewees with something akin to a right to be transported elsewhere and terminate questioning, a relatively short time into attempted police interviews, upon the repetition of certain phrases.

That in turn would substantially undermine the acknowledged right of the police to speak to an accused and pose questions, effectively frustrate and prevent a legitimate and effective aid to criminal investigation, and thereby impose undue limits on society’s need to investigate and solve crimes; i.e., one of the “twin goals” of the of the voluntariness inquiry. [ 70 ] For present purposes, I do not think the circumstances of this particular case “crossed the line”, in terms of persistent questioning and ignoring an accused’s assertions of the right to silence and/or desire to terminate in the interview; i.e., in a manner sufficient to override the respondent’s exercise of free will. [ 71 ] Again, for the reasons outlined herein, I find that the accused simply chose, voluntarily, to keep speaking.

In my view, there were no oppressive circumstances that vitiated the respondent’s free will in that regard. OPERATING MIND [ 72 ] The respondent did not dispute Crown counsel’s assertion that, during the relevant police interview, the respondent had an “operating mind” in the sense required to permit a finding of voluntariness. [ 73 ] To the contrary, in his written submissions, respondent counsel expressly indicated that his client “does not suggest that there

was an absence of an operating mind in this case”, and submitted that “operating mind” considerations accordingly are “not a factor” in the case at bar. [35] [ 74 ] I independently find and confirm that, at all material times, the respondent had an “operating mind” in the sense required for voluntariness of statements to the police. [ 75 ] In that regard, as noted above, the Supreme Court of Canada has explained that the relevant “operating mind” requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”. [36] [ 76 ] In this case, I think there is no evidence to indicate or suggest that the accused lacked the cognitive ability to understand what he was saying to Detective McGregor. [ 77 ] To the contrary, in my view the behaviour and responses of the accused throughout much of the interview make it abundantly clear that he was reasonably intelligent and appropriately responsive to Detective McGregor’s questions and comments, without any indications whatsoever that his cognitive ability was impaired by matters such as lack of sleep, drugs or alcohol. [ 78 ] As for the second component of the “operating mind” requirement described above, (i.e., requiring the respondent to have awareness or knowledge that what he was saying to Detective McGregor could be used “to his detriment”, in “proceedings against the accused”), I think the evidence before me makes satisfaction of that requirement absolutely clear as well.

For example: • As noted above, it was agreed that the respondent was properly cautioned after his arrest.

In my view, that would include a primary caution in the standard form; i.e., an express statement by the police, specifically indicating to a suspect that he or she may be charged with a criminal offence but has the right to remain silent, and that anything said to the police can be used against the suspect if he or she is charged with a crime. [37] • It similarly was agreed that, prior to his police interview with Detective McGregor, the respondent was advised of his right to counsel, and the police successfully facilitated contact between the respondent and his counsel of choice.

This was confirmed during the initial stages of the formal police interview, wherein the respondent confirmed that he had spoken with Mr Lord, and was satisfied with his advice. [38] The Supreme Court of Canada repeatedly has indicated that, if a detainee has exercised his right to counsel, he presumably will have been informed of his right to remain silent, and therefore his right to choose whether or not to volunteer information to the police. [39] • Detective McGregor expressly advised the respondent during the interview that everything said was being monitored and recorded, expressly indicated that anything said by the respondent could be used as evidence against him or others, and repeatedly reminded the respondent that he was not obliged to talk. [40] • The accused himself repeatedly confirmed that he was aware of his right to remain silent, and indicated that his lawyer had advised him not to say anything. [41] • The accused also repeatedly made comments confirming his awareness of the legal jeopardy he was in, and that making statements to Detective McGregor carried the potential for adverse consequences. [42] [ 79 ] I have noted and emphasized such considerations, notwithstanding the respondent’s concession of having an “operating mind” in the sense required during the course of his police interview, because in my view they underscore a reality that the accused in this particular case was keenly aware of his right to remain silent, and very conscious of the reality that anything he chose to say to Detective McGregor could be used against him and/or others in criminal proceedings. [ 80 ] In other words, I think such considerations provide strong support for the view that this case involves an accused with an operating mind that was very much engaged, during the relevant police interview, and that anything the respondent did say to Detective McGregor was voluntary.

POLICE TRICKERY [ 81 ] In this case, the respondent did not dispute Crown counsel’s assertion that there was no form of police trickery in this case. [ 82 ] To the contrary, in his written submissions, respondent counsel expressly conceded that the case at bar involved no police trickery of the sort addressed by the Supreme Court of Canada in R. v.

Oickle , supra , and submitted that such trickery accordingly is not a relevant factor for present purposes. [43] [ 83 ] To the extent necessary, however, I independently find and confirm that the evidence before me contains nothing to suggest any form of deceit or other police trickery that would undermine voluntariness or the reliability of statements made by the respondent to Detective McGregor. [ 84 ] Without limiting the generality of the foregoing, at no point did Detective McGregor mislead the respondent with inaccurate statements, or refer to any fabricated evidence.

Certainly, there was no police trickery rising to the “very high threshold”, described by the Supreme Court of Canada, of a “dirty trick” that would “shock the community”. [44] PARTICULARITIES OF THE ACCUSED [ 85 ] Consistent with its emphasis on assessments of voluntariness being a context specific exercise, and as noted above, the Supreme Court of Canada has emphasized the need, when making such assessments, to be sensitive to the particularities of the individual suspect. [45]

[ 86 ] In this case, respondent counsel sought to characterize the respondent as a “young, inexperienced individual, in the control of an experienced detective”. [46] [ 87 ] That was not my impression while watching the video recording of the relevant police interview, and my view in that regard was reinforced by additional aspects of the evidence presented before me, which included the following: • The respondent was 23 at the time of the interview, and therefore youthful but not young. [47] • According to the information he provided to Detective McGregor, the respondent previously had been a member of a gang called “A to M”, (short for “Addicted to Money”), along with another one of the suspects, whom the respondent described as “a bad dude”. [48] More recently, the respondent had been pursuing a professional music career as a “rapper”, which involved the making of numerous recordings and videos, scheduled shows, and travel between Kitchener and Toronto several times a week. [49] The respondent acknowledged having been to the relevant Kitchener hotel before, [50] and having “chilled” at hotels before with “three girls and three guys”. [51] The respondent indicated, through his comments about fear of physical retribution from others, if he provided information about other suspects or events at the hotel to Detective McGregor, that he was aware of one or more of his associates and companions having a capacity for significant violence. [52] The respondent acknowledged knowing that the other suspect he was reluctant to identify was “pimping out” women, and claimed that another suspect had informed him the complainant wanted to be a prostitute and make money. [53] The respondent also acknowledged knowing that “the older girl” in the relevant hotel room, to which the complainant had been taken, used methamphetamine. [54] • When the respondent indicated his desire for more information about the charges he was facing, (as he wanted more information as to what the charges were about, and did not want to be “left in the dark” in that regard), Detective McGregor indicated that the respondent would be going to court and receiving disclosure.

The respondent clearly seemed to understand that answer, without the need for any further clarification or details. [55] • The respondent also indicated his familiarity with, or awareness of, several other aspects of criminal law and procedure.

Without any mention or other raising of such matters by Detective McGregor, the respondent independently made comments regarding his ability to get bail, [56] the age of the complainant (disclosed by Detective McGregor) being under the age of consent, [57] the possibility of his being placed under “house arrest” instead of being detained in a cell prior to his first court appearance, [58] and his independent awareness that a charging officer has discretion to release a detainee on recognizance instead of being held over night before going to court. [59] • As noted above, it was the respondent, and not Detective McGregor, who proactively raised and pursued the possibility of a negotiated “deal”, pursuant to which the respondent would provide further information. [60] • A number of the respondent’s statements indicate that the respondent was making deliberate decisions as to what information he should and should not share with Detective McGregor, especially information concerning other suspects. [61] [ 88 ] In my view, these are not the hallmarks of a naïve, callow and inexperienced individual, more likely to have a compliant personality, or more prone to accepting police suggestions made during the course of an interview. [ 89 ] To the contrary, such considerations reinforce my impression that the accused was an experienced and worldly individual, more capable of withstanding the influence of threats, promises and/or oppressive conditions, to the extent any such factors may have been present.

CONCLUSION REGARDING VOLUNTARINESS [ 90 ] Again, a trial judge must consider all relevant factors when reviewing the voluntariness of an accused’s statements, always keeping in mind the twin goals or objectives of protecting the rights of an accused without unduly limiting society’s need to investigate and solve crimes. [ 91 ] I therefore am mindful of the possibility that, despite the strength or weakness of various voluntariness factors considered individually, the combined effect of such factors might, in some cases, raise a reasonable doubt as to whether the particular statements of an accused were voluntary in the sense required. [ 92 ] In this case, however, I do not think they do. [ 93 ] For the reasons outlined above, in my view the context of the statements made by the respondent to Detective McGregor, during the respondent’s formal police interview, involved no improper threats, promises or circumstances of oppression.

Moreover, at all material times, the accused clearly had an “operating mind” in the sense required, and was keenly aware of his right to silence, the fact he was speaking to a police officer, and the reality that anything he said could be used against him in criminal proceedings. [ 94 ] Throughout his police interview, the accused nevertheless chose to keep talking. [ 95 ] In my view, none of the factors identified by the Supreme Court of Canada in R. v.

Oickle , supra , either separately or together, give rise to any reasonable doubt concerning the voluntariness of the respondent’s statements to Detective McGregor during the relevant police interview. [ 96 ] In other words, I think the Crown has proven the voluntariness of the post-arrest statements made by the accused to Detective McGregor beyond a reasonable doubt, according to the mandated analysis. Such statements accordingly should be admissible at trial, at least in terms of their being voluntary. [62] CHARTER –

SECTION 7

[ 97 ] As noted above, in addition to contesting the Crown’s assertion of voluntariness, in relation to the statements made by Mr Alexis-McLymont to Detective McGregor, the respondent also invoked and relied upon

section 7 of the Charter , which reads as follows: 7. Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 98 ] There is no question that the rights extended by

section 7 include a detained person’s right to silence; a well-settled principle that has been part of the basic tenets of our law for generations. [63] [ 99 ] There similarly is no question that, despite “considerable overlap” and “interplay” between the rules concerning voluntariness, (also known as “the confessions rule”), and that constitutionally protected right to silence, (because both are manifestations of the broad principle against self-incrimination), the latter is capable of affording “residual protection” and “added value” to an accused in certain contexts. [64] [ 100 ] Having said that, our appellate courts also have emphasized that, in the context of a police interrogation of a person in detention, where the detainee knows he or she is speaking to a person in authority, the two tests for determining whether the suspect’s right to silence was respected are functionally equivalent.

Therefore, where a statement has survived a thorough inquiry into voluntariness, an accused’s allegation that the statement was obtained in violation of his or her pre-trial right to silence, under

section 7 of the Charter , cannot succeed. [65] [ 101 ] In this case, the voluntariness analysis and conclusion set forth above accordingly preclude the need for any further or separate analysis focused on

section 7 of the Charter . “Justice I.F. Leach” Justice I.F. Leach Date: September 6, 2017

Schedule “A” Required revisions to transcript of police interview conducted August 20, 2015 • On page 2 of 57, the first comment attributed to Detective McGregor should read “Hey, Jaiden, have you spoken with Mr Lord?” (In his viva voce testimony at the preliminary hearing and during the voir dire hearing before me, Detective McGregor confirmed that Mr Alexis-McLymont had spoken to his lawyer of choice, Mr Cooper Lord, and that is the surname the detective mentions at the outset of the interview.) • On page 3 of 57, during the second complete set of comments attributed to Detective McGregor, the detective’s remarks include saying “…as long as it goes we’ll banter back and forth. …” • On page 31 of 57, during the portion of the third comment attributed to Mr Alexis-McLymont marked in the transcript as “inaudible”, the accused actually says the first name of the complainant, as set forth in the indictment. (I deliberately do not reproduce the name here, as this matter is subject to an order, made pursuant to s.486.4 of the Code , restricting publication of information that could identify the complainant.) • On page 32 of 57, the third comment attributed to Mr Alexis-McLymont should read “…my phone doesn’t work anymore”. • On page 43 of 57, the transcript contains an indicated interruption in the transcription, whereby approximately 27 seconds of the interview was not transcribed owing to an apparent break in the DVD recording employed by the transcriptionist.

However, there was no such break in the video recording of the interview entered as evidence during the voir dire before me. From just before the indicated break until just after the indicated break, the comments I heard on the video, (which should be incorporated into the transcript at page 43 of 57 for it to provide a complete and accurate record of the interview), were as follows: MCGREGOR: So then why this time? Did he give you some money? MCLYMONT: N- No. It was - MCGREGOR: Some drugs? So he gave you some drugs. What kind? Meth or coke or what? MCLYMONT: He didn’t give me drugs.

Like I saw it out on the thing. MCGREGOR: So what did he give you? MCLYMONT: Like - It just - At this point in my life, I was going through my own little problem.

• On page 45 of 57, the second comment attributed to Mr McLymont should read “I didn’t know (inaudible)”.