



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wabason, 2018 ONCA 187

DATE: 20180226

DOCKET: C62534

MacFarland, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shaldon Wabason

Appellant

Andrew Furgiuele, for the appellant

Mabel Lai, for the respondent

Heard: January 29, 2018

On appeal from the voluntariness
voir dire
ruling of
    Justice John F. McCartney, dated February 24, 2014, and from the conviction entered
    by Justice Terrence A. Platana of the Superior Court of Justice, sitting with a
    jury, on October 2, 2015, and from the sentence imposed on January 14, 2016,
    with reasons reported at 2016 ONSC 349.

Pardu J.A.:

[1]

Shaldon Wabason was convicted of manslaughter
    and break and enter. He participated in a home invasion with others. One of the
    others stabbed and killed a man who had come to the home to help defend the
    occupant.

[2]

Following his arrest, the appellant was questioned
    by police and gave a statement. In a pre-trial ruling, the application judge
    concluded that the statement was voluntarily made. The application judge retired
    before the trial took place. In a pretrial application before the trial judge,
    the appellant applied to reopen the voluntariness
voir dire
. The trial judge refused to do so and expressed his agreement with the
    application judges reasons.

[3]

The appellant submits that the application judge
    erred in concluding that the statement to police was voluntarily made. For the
    reasons that follow, I agree. I would allow the appeal and order a new trial.

[4]

The appellant also seeks leave to appeal against
    his sentence.
He argues that
    he was catastrophically affected by systemic factors identified by the Supreme
    Court in
R. v. Gladue
, [1999] 1 S.C.R. 688 and that the trial judge did
    not reflect this in the sentence he imposed.
Given my
    conclusion on the conviction appeal, there is no need to consider the appeal
    from sentence.

The application judges decision on
    voluntariness

[5]

Based on a review of the evidence, the application
    judge concluded that the appellant was properly advised of and understood his
    right to counsel, his right to remain silent, and that nothing said to him
    should influence his making of a statement.

[6]

Applying
R. v. Oickle
,
2000 SCC 38, [2000] 2
    S.C.R. 3, the application judge found that there had been no
quid
    pro quo
, that is to say no promise by police that they
    would do anything in exchange for a statement by the appellant. At para. 19 of his
    reasons, the application judge stated:

Further, I do not agree with [Wabason] when he
    argues that the questioning by [the officer] left the improper implication that
    if Wabason made a statement that things would be better for him or would not
    get worse for him. Wabason already knew that he had been arrested for first
    degree murder. [The interviewing officer] may have used a variety of themes, as
    mentioned, to try to get Wabason to make a statement. But at no time did he
    ever suggest, or was the topic ever mentioned, that the police could or would
    do anything to assist Wabason. As set out in
Oickle
there was no
quid pro quo
, implicit
    or otherwise.

[7]

The application judge distinguished other cases
    like
R. v. Nugent
(1988), 84 N.S.R. (2d) 191
    (C.A.), where a police suggestion that they would help reduce a murder charge
    to manslaughter made a statement inadmissible, and
R. v. Monk and Alexis
, 2002 BCCA 103,
163
    C.C.C. (3d) 387, where a confession was excluded after police suggested that
    cooperation with them could be considered by a sentencing judge. The
    application judge determined that, unlike these cases, there was no direct
    threats or promises or suggestions that
the police
    could do anything
to assist Wabason if he made a
    statement (emphasis added).

Standard of review

[8]

The determination of whether a confession is
    voluntary is a question of fact or of mixed law and fact. Disagreement about
    the weight to be given to pieces of evidence is not a basis for appellate
    interference. If the application judge properly considers all the relevant
    circumstances, then a finding regarding voluntariness is essentially a factual
    one, and should only be overturned for some palpable and overriding error
    which affected [the application judges] assessment of the facts:
Oickle
, at paras. 22, 71; and
R. v. Spencer
, 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 16-17.

The voluntariness of the statement

(i)

Positions of the parties

[9]

The appellant maintains that the application
    judge erred in ruling that the appellants statement was voluntary.
    Specifically, the appellant challenges the application judges determination
    that there were no direct threats or promises, and thus no
quid pro
    quo
to induce a statement. The appellant points to the interviewing
    officers repeated inducement that by making  a statement, the appellant could establish
    that he was guilty of break and enter only, and the threat that if he did not
    make a statement, he would take the fall for murder.

[10]

The appellant also claims the application judge
    erred by stating that the interviewing officer told the appellant it did not
    matter who did the stabbing  they were all implicated; and in determining
    that the interviewing officer telling the appellant he faced a charge of first
    degree murder because the stabbing occurred during a robbery was a harmless
    mistake.

[11]

The Crown maintains that the voluntariness
    finding reflects no palpable and overriding error. It argues that the
    application judge reasonably found that there were no direct threats or
    inducements, no
quid pro quo
, implicit or
    otherwise, and no problematic strategies used or mistakes made by the
    interviewing officer.

(ii)

Analysis

[12]

The transcript of the police interrogation shows
    that although the appellant attempted to assert his right to silence numerous
    times, police repeatedly told him that if he spoke, he would be in less
    jeopardy, while if he did not speak, he would take the fall for a murder he
    did not commit. On one occasion, for example, the interviewing officer queried:
    If I was in your shoes I wouldnt be taking responsibility for that if I
    didnt do it (pause) I mean you really wanna take the fall for something you
    didnt do?

[13]

Throughout the interrogation, the interviewing
    officer told the appellant that he did not think the appellant stabbed anyone,
    but that the appellant should not take the blame for something he did not do.
    Moreover, the interviewing officer told the appellant that unless he spoke up
    immediately, he would go down for first degree murder. The following exchange
    illustrates the tone, and themes, the officer employed:

Q.      Cant
    even say you didnt do it (pause) but we know you were there (pause)
if you
    wanna take the fall for this then youre making that choice right now in this
    room
I know you wanna tell me that you didnt do it cause
if I was
    sitting in your chair I certainly wouldnt wanna be the one going down for this
    if I didnt do it but time is very quickly running out




Q.       [S]o
    thats it then eh youre gonna let someone elses actions
youre gonna take
    the rap for somebody elses actions for murder something I dont think you did
    at nineteen years old
(pause) and you made decisions that night that
    brought you here but somebody else made the decision to put a knife in that man
    not you and now this is where we are because somebody else put a knife in that
    man this is where you are because somebody else put a knife in that man over
    and over again because he was trying to protect his girlfriend ex girlfriend
    and now youre in jail for it and
you dont even have the stones to tell me
    that you didnt do it
(pause) which makes me think maybe Im wrong (pause)
    but

A.      Im just listening to my lawyer he
    told me

Q.      I know what youre

A.      Well then quit (inaudible) (sighs)

Q.      And
    its your decision whether you want to talk to me or not

A.
I dont wanna talk to you

Q.      Like I said you dont have to

A.      I know

Q.      Thats
    your right but to sit here and show me that you dont even feel bad about what
    happened cause thats what Im seeing from you right now you dont even care
    about this this guy died and
you didnt do it but youre gonna fall for it
    now youre gonna go down with these guys for it




Q.       I
    mean the nets closing here and the time to talk is now with me in this room
    because this is an opportunity thats not gonna come again so rest assured the
    decisions you make now are gonna be affecting the rest of your life [Emphasis
    added.]

[14]

I agree with the appellant that these statements
    by the officer were at once an inducement  suggesting it was to the
    appellants advantage to speak to police to avoid conviction for first degree
    murder  and a threat  that unless the appellant spoke, he would be convicted
    of first degree murder for a crime he did not commit.

[15]

There was no bargain by police in that they did
    not make any promise of conduct on their part in exchange for the appellant
    speaking to them. In that limited sense, I agree that there was no
quid
    pro quo
as described by the application judge. However,
    this is to confine too narrowly the notion of inducements or threats leading to
    a statement.

[16]

For police to characterize the legal
    consequences of making or not making a statement as a given, as opposed to
    promising an act that would be worked out by police or a judge, is in this
    context more coercive, if anything. As pointed out in
Oickle
,

at para. 44:

[T]he literature bears out the common law
    confessions rules emphasis on threats and promises. Coerced-compliant
    confessions are the most common type of false confessions. These are
    classically the product of threats or promises that convince a suspect that in
    spite of the long-term ramifications, it is in his or her best interest in the
    short- and intermediate-term to confess.

[17]

In
Oickle
, at paras.
    53-54, Iacobucci J. held that phrases like it would be better if you told the
    truth do not automatically require exclusion, but rather require exclusion
    only where, in the entire context of the confession, the circumstances reveal
    an implicit threat or promise. Here, the comments made by the officer were far
    more coercive than words to the effect of it would be better to talk. In the
    entire context of the appellants interrogation and statement, the officers
    comments went beyond spiritual exhortations, or appeals to conscience and
    morality. They amounted to both threats and promises.

[18]

The application judge erred in discounting the inducements
    and threats on the basis that no police or court action was promised in return.
    Properly conceived, the interviewing officers veiled inducements of decreased
    jeopardy for speaking and threats of increased jeopardy for silence gave rise
    to an implicit
quid pro quo
.

[19]

Given this
quid pro quo
,

the
    application judge should have gone on to assess whether, in all the
    circumstances, the inducements and threats 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:
Oickle
,
at para. 57.

[20]

In so doing, the application judge was required
    to consider the characteristics of the individual suspect:
Oickle
, at para. 42. Yet, the application judge did not consider the
    effect of the threats and inducements upon a 19-year-old aboriginal youth who
    had attempted to assert his right to silence on at least 6 occasions during the
    interview, and who asked several times to return to his cell.

[21]

In light of the application judges errors, it
    falls to this court to assess whether the appellants statement was voluntarily
    made despite the inducements and threats. I am not persuaded beyond a
    reasonable doubt that the statement was voluntarily made, taking into account
    the appellants age, his personal circumstances, his futile assertions of the
    right to silence, his requests to return to his cell, and the impact upon him
    of the officers repeated statements that, unless the appellant spoke up, he
    was going to take the fall for a first degree murder he had not committed.

[22]

Having reached this conclusion, it is
    unnecessary for me to consider the other alleged errors identified by the
    appellant.

[23]

I would allow the appeal, set aside the
    convictions and order a new trial.

G. Pardu
    J.A.

I
    agree J. MacFarland J.A.

I
    agree M.L. Benotto J.A.

Released: February 26, 2018


