



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s.
    22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)      In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carr, 2016 ONCA 837

DATE: 20161107

DOCKET: C59730

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kane Barton Carr

Appellant

Jonathan Dawe, for the appellant

Luke Schwalm, for the respondent

Heard and released orally: November 3, 2016

On appeal from the conviction entered on October 31, 2014
    by Justice Susan E. Healey of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

The appellant was convicted of sexual assault and break and enter and
    commit an indictable offence. The sole ground of appeal he raises is that the
    trial judge erred by finding that the video statement he gave to police upon
    arrest was voluntary and admissible in evidence.

[2]

The appellants position is that he was induced to make the statement, (which
    was essentially exculpatory) on the issue of consent, by comments made by
    Officer Baker on the approximately two-minute walk as he escorted the appellant
    to the interview room. The appellant alleged that the officer essentially told
    him that they would have to talk and figure things out and afterward he would
    be released. No recording or notes were made by the officer of a conversation,
    which he initially denied, but later acknowledged that he could have said that
    they would be having a conversation to figure things out.

[3]

The trial judge found that the officer did say that they were going to
    have a conversation to figure things out, but that the officer did not suggest
    that he would then release the appellant, and therefore he did not hold out any
    inducement. The trial judge also analyzed the appellants conduct during the
    interview, and concluded, for a number of reasons which she stated, that the
    appellants decision to give the video statement was not causally connected to
    an alleged inducement.

[4]

The appellants main argument is that because the onus to prove
    voluntariness of a statement by an accused is on the Crown, and because there
    was no record made of the alleged conversation, once the trial judge found that
    some statement was made by the officer to the appellant about the upcoming
    interview, the Crown could not prove beyond a reasonable doubt that the
    statement of the appellant was not based on an inducement and therefore was not
    voluntary.

[5]

We do not accept this submission on the facts of this case. While it is
    important for police to record their interactions with accused persons, in this
    case, the conversation was very brief and held in circumstances on the walk to
    the interview room where the officer testified that he normally says nothing
    and believed he had said nothing in this case. Both the officer and the
    appellant testified as to what was said. Although the trial judge could have
    rejected the officers testimony as unreliable (because he had no notes of it),
    in the case of this brief interaction, she was entitled to make findings based
    on the evidence she heard as well as the full context of the arrest and
    interview process, and the interaction between the appellant and the officer,
    including the recorded interview. We see no basis to set aside her findings
    based on the evidence, which she explained fully in her reasons.

[6]

While we agree with the appellant that if an offer of release had been
    made in exchange for the appellants statement, that could have constituted a
quid
    pro quo
in law, we see no error in the trial judges finding that the
    Crown had proved that no such inducement was given.

[7]

The appellant also submits that the trial judge confused two branches of
    the voluntariness analysis, whether an inducement was given and whether the
    appellants will was overborne. While the trial judge did refer to the issue of
    the appellants will being overborne, we do not agree that she applied an
    incorrect test on the issue of whether there was a causal connection between
    the appellants decision to give a statement, and an alleged inducement by the
    officer.

[8]

In the result, the appeal is dismissed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

M.L.
    Benotto J.A.


